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Commentary

Remembering Our First Constitution



By federal statute, September 17 is designated Constitution Day and Citizenship Day. Americans on this day are encouraged to remember and revere the signing of the U.S. Constitution, which took place in Philadelphia on September 17, 1787. The anniversary should remind us of our nation’s unique heritage, but the observance has long been clouded by a politically correct collective amnesia.

Undoubtedly, we will hear speeches and read features about how our national charter and its original supporters, known to history as Federalists, saved the thirteen states from ruin by the impotent Articles of Confederation. Only through the compromises made at the Philadelphia Convention, the standard story goes, were we able to survive as a nation. Had the Constitution’s Anti-Federalist opponents prevailed, allegedly we would be living in a land that was politically fragmented, economically impoverished, and militarily weak.

By imbibing this conventional wisdom, Americans have unknowingly become intellectually parched. Certainly the Articles were flawed, but they enabled the emerging nation to defeat the superpower that was Great Britain, and to preserve the rights of the people of the several states to govern themselves. In this respect, the Articles were an unqualified success.

This achievement answered the burning question at the heart of the Revolution: Would Americans be ruled by the centralized British government, or would they make their own laws in their various state and local assemblies? The War of Independence, we must keep in mind, was fought not to replace one powerful central government with another, but to establish a nation that embraced a radical philosophy of self-rule.

The Anti-Federalists were therefore not “men of little faith,” as some historians have called them. They were apostles of a new faith, though their creed would not sanctify the type of government we have today. Republican liberty, they believed, has the best chance of survival only if units of government could enable the people to actively participate. Representatives, they reasoned, should reflect the interests of their constituents, mix with them, and be amenable to their wishes.

Such a government, they held, could exist only on a small scale. Once a governing entity reached a certain size, representatives would be too far removed from their constituents and would end up effectively collaborating with a centralized bureaucratic apparatus to impose rule from above. The Articles of Confederation reflected this concern and contained liberty-promoting provisions that modern reformers should champion.

One example is its term limit for delegates, spelled out in Article V, which supporters thought necessary for limiting congressional power. Historian Gordon Wood has explained that its inclusion was motivated by fears that a ruling aristocracy might otherwise emerge, and by the conviction that public service should be open to men as talented as the old guard.

Considering the careerism found in today’s Congress, which actually goes back several decades, term limits would be a refreshing change. Since 1998, the incumbency rate for the House of Representatives has dipped below 94 percent just once (to 85 percent in 2010). The Articles anticipated the kind of problems this has created.

Second, the Articles stipulated that only a supermajority of delegates could authorize borrowing money. Even though the government was struggling financially after the War of Independence, the supermajority requirement was deemed essential for keeping the republic fiscally sound and for reducing the risk that the people and the states would be burdened with high taxes to pay off the incurred debt.

In light of our current $18 trillion national debt and Congress’ ability to raise the debt ceiling with a simple majority, a supermajority requirement would offer hope. It would give fiscally responsible members of Congress, who are clearly in the minority, power to make their colleagues more frugal.

Third, and perhaps the most importantly, the Articles of Confederation codified the Founders’ dislike of central government. Article II states: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” The word “expressly” is the key.

This is what makes the provision vastly superior to the Tenth Amendment of the U.S. Constitution. It provided some insurance against the Confederation Congress claiming broad implied powers that could enable it to meddle in the local affairs of the states. Today, little is beyond the reach of our masters in Washington, D.C. Implied powers and a liberal construction of the Constitution have made the federal governmentunlimited.

The three features above give us good reasons why we should celebrate Constitution Day by remembering our first national charter: the Articles of Confederation. This document not only helped unite us to defeat the British superpower and preserved the right to self-government, but it has much to teach us if only we will listen.


William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the Independent Institute books, Crossroads for Liberty, Reclaiming the American Revolution, and Patent Trolls. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.


New from William J. Watkins Jr.!
CROSSROADS FOR LIBERTY: Recovering the Anti-Federalist Values of America’s First Constitution
What did the American Founders actually intend for the country, and does it even matter today? In a time of increasing turmoil over American history, politics, and society, Crossroads for Liberty takes an eye-opening look at the American Revolution, the Articles of Confederation, and the Constitution, and asks what we can learn from them. Readers will come away with a greater understanding of current political and constitutional issues, as well as a new perspective on American history.







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