According to Wood, the Articles of Confederation that preceded the United States’ Constitution did not do much to limit or curtail the sovereignty of the individual states in the Union. There is, of course, language in the Articles themselves that supports this view. For example, Article II expressly states that the default position shall be that the states all the “sovereignty, freedom, and independence, and every power, jurisdiction, and right” (Articles of Confederation).
That is to say, it is only where the Articles expressly curtail such freedoms that states shall be limited in respect of them. Article III implies that the only reason the states are grouped together under (limited) Confederate power is for their own benefit. This suggests that the Union is put together for purely pragmatic reasons; and what is gained, or lost, from a pragmatic point of view may change over time. Therefore, not only is Confederate power over the states expressly limited by the Articles, but their language suggests that even such power as it holds is not such that has an intrinsic or necessary right to it.
Article V provides for personal protection for the delegates sent to Congress from each individual state. This suggests that states have a certain autonomy. The arrangement is not dissimilar to our current state of affairs whereby officials from other countries have “diplomatic immunity” when visiting the U.S. Finally, Article XI limits the ability of states to enter into unions and treaties without a supermajority of states approving such action.
There seems little doubt that the current Federal government has far more power over the individual states than the Confederation held over the original thirteen states. A well-known example of some contemporary relevance is the Federal government’s failure to respect the decisions of certain individual states to legalize marijuana, for recreational or in some cases even medical purposes. There is certainly still a considerable amount of emphasis placed on states’ rights, and a correlative dislike of “big government”. However, it is arguable that each of these is simply a way for conservatives discreetly to wage war against entitlement programs and legislation, such as Roe v Wade, that they dislike. Conservatives do not complain about big government when it comes time to bail-out failed corporations, or to funding the largest military the world has ever seen.
While Wood acknowledges that the Articles of Confederation were an estimable achievement at the time of their drafting, he explains why they were ultimately inadequate to provide for the needs of the American people. There are several reasons for this. One is that the Articles left the “crucial powers” of all ultimate lawmaking, including taxation, up to the individual states. It is true that the Confederation itself could make recommendations to the states, but as we will see below these were very often impotent. Wood remarks, indeed, that the Confederation was less a single government than it was a group of independent nations bound together by a treaty (Wood, 1985).
Wood further distinguishes between two sets of problems that the Confederation faced in the 1780s, one national and one at the state level. The national problems that he mentions are that the states were ignoring resolutions issued by Congress, and one consequence was that the Continental army was unable to pay its members. This led to mutiny and desertion. There were also problems of inflation. Perhaps most fundamentally, however, Congress needed revenue that count be counted on irrespective of the whims the individual states (Wood, 1985).
Further concerns with the Confederation and its Articles were expressed by Hamilton in letters to Clinton and Duane. In the first of these letters, Hamilton observes that the then current arrangement left far too wide a scope for states’ delegates to put their own interests ahead of the Confederacy’s. He also points out that the various problems associated with the relationship between the Confederacy and the states led, or would inevitably lead, to the United States being perceived as weak, disunified, a vulnerable to foreign powers (Deficiencies of the Confederation). Something very like this is plausibly occurring right now, under the current Presidential administration.
In his letter to Duane, Hamilton repeats the point concerning the appearance of disunity and the consequent vulnerability of the Confederacy. He notes that the traditional problem with powerful central governments or monarchies was that they would have too much power and oppress the masses. The danger with the extreme limitations on the Confederacy is the opposite. It is “that the common sovereign will not have power sufficient to unite the different members [states] together, and direct the common forces to the interest and happiness of the whole” (Deficiencies of the Confederation).
Washington’s letter to Jay speaks of a growing crisis. Echoing Hamilton, Washington remarks that for the Confederation to succeed in its current form would require that human nature be less self-directed and self-serving than it actually is. He says that we have learned from experience that, in the absence of a coercive power, people will fail even to act for their own ultimate good. Washington’s use of the term “coercive” is potentially misleading here. It had at the time a more descriptive meaning, akin to having power over something—where this power could be legitimate—than its current pejorative meaning, under which all acts of coercion are morally dubious. He also notes that it is foolish to fear a larger governing body; for it could scarcely harm the states over which it wields power without injuring itself. Washington also gives voice to a picture of the individual and the state as inherently interconnected that is somewhat foreign today, at least in the United States. Indeed, many today would accuse Washington of communism or socialism for this remark.
The recommendations of these authors are mostly implicit in what has been said above. The Articles of Confederation must be replaced by a document, or set of documents, that grants to “Congress” much more power over the states than it had been able to exert before. At least in some cases, the “requisitions” that Washington refers to as “a perfect nihility” must be replaced by commands that can be enforced by might or sanction. The states must be subject to a larger power and authority, though they will of course retain many freedoms (Deficiencies of the Confederation).
Certain issues and concerns that still exist today, with respect to the relationship between the Federal government and the states were mentioned earlier. Many of the concerns are very similar. Just as states that relied upon slave labor did not want to be told by the Confederacy, or later the Federal government, so today those who drone on about “state’s rights” are less concerned with Federal power than with the fact that moral progress, for example in respect of civil rights, tends to move more quickly in the Federal government than it does locally. “State’s rights”, indeed, has become little more than code for the freedom to resist moral progress. It is also closely bound up with the sort of radical libertarianism that views the protection of liberty (by which it means property) as ultimately incompatible with democracy (MacLean, 2017).
