Saturday, May 14, 2011

On the Return of the Articles of Confederation

Every so often I read something in the newsy part of the blogosphere and I think, “That can’t be right. Nobody could possibly be that stupid.” And invariably I find myself confronted with the one, basic, overriding fact of the universe, the fact upon which all facts are based and from which no facts can hide:

Oh yes they can.

Whenever you hear an idea so blindingly stupid that it actually sucks intelligence out of a room, so pointlessly vapid that the only way a responsible human being could even enunciate it, let alone attempt to believe it, would be for that human being to have their brains scooped out with a plastic spork and replaced with cottage cheese – low fat cottage cheese, mind you – and so blisteringly appalling that its believers should be roundly horsewhipped just for conceiving of such a thing and bringing it into existence on this plane of reality, whenever you hear such an idea you can be sure that yes, indeed, it has adherents. Powerful adherents. Adherents that want to force you to behave in accordance with their mental handicaps. Adherents who cannot understand why this idea will cause normal people to perform actual spit-takes as if they were in an old vaudeville routine.

You can also be pretty sure that this idea has traction among the Teabaggers.

Because that is the function Teabaggers serve in the political landscape of the modern United States – they are miner’s canaries for stupid. Whenever they get excited and hop up and down on one foot and start chirping in that inane way that they do, the clear meaning is that the toxins in the air have reached crippling levels, the level of idiocy is about to go through the roof, and the job of responsible citizens is going to be to figure out a way out of the situation before irreparable harm befalls the republic.

They’re handy that way, Teabaggers.

The latest iteration of this routine comes to me courtesy of a group of right-wing extremists currently in Congress.

I know. Who’d have thought, huh? The same group of people who think that the House of Representatives gets to decide what is and isn’t law when a bill gets bottled up in the Senate, regardless of what the President does? They have more stupid ideas where that one came from?

Who. Would. Have. Guessed.

Apparently a bunch of these guys have decided that the problem with the United States today is, in fact, the Constitution itself.

And I can understand that. Really, I can. If they can undo the Constitution, then they no longer have to try to find a time to read it – something they clearly have not done yet – nor do they have to find someone to explain it to them once it has been read, in the short, easy words to which they revert whenever challenged by reality.

Specifically, these Teabaggers are proposing to amend the Constitution to allow states to nullify federal laws.

That spinning sound you hear out there? James Madison in his grave. Harness him – maybe we can generate electricity and get something positive out of this deal.

Sweet dancing monkeys on a stick, people – don’t these pantsless buffoons know why the Constitution was written in the first place?

The Federal Constitution of 1787 was not the first framework of government this country tried. This always comes as a shock to people, but really it shouldn’t. We declared independence in 1776. The Constitution was written in 1787. Do the math – that’s eleven years where something else had to be doing the heavy lifting of national government. That something else was the Articles of Confederation.

The Confederation government had a lot on its plate – fight the Revolution, find allies, make treaties, negotiate the peace, deal with the inevitable economic crisis that follows wars like that, resolve the crushing debt issues that came out of the war, try to unite a fractious and suspicious people into a fractious and suspicious country, figure out what to do with all the western territory that now belonged to the new republic – and it is not all that surprising that despite a few notable successes overall it didn’t work out all that well. That’s a tall order for any government in a world where nothing moves faster than 3mph.

But the Articles of Confederation was handicapped by its very nature. Even had the times been prosperous and tranquil, it would have failed anyway. And the reason for that was that it was built exactly the way the Teabaggers want to change the Constitution to resemble.

The Articles of Confederation was a document imbued with the spirit of Lockean Liberalism. Liberalism, the political expression of the Enlightenment, shares with that cultural movement a deep and rather optimistic faith in human nature, one that is based on first principles and reasoned argument rather than on any evidence in the historical record. In a position reminiscent of the Renaissance, the Enlightenment argued that human beings were by nature good, decent creatures who would do the right things if only they were allowed to do so. That people would and could take care of both their own interests and the larger interests of society on their own, with nobody forcing them to do so. The key to politics, therefore, was to design a system in which those benevolent impulses could be encouraged and channeled into a functional government.

Americans as a group still believe this today – it’s the mainspring behind all the talk of smaller government and less regulation that so dominates our politics here in the early 21st century.

Unfortunately, as the classical republicans among the Founding Fathers well understood, the fact is that people can be viciously flawed creatures, especially where power and wealth are at stake, and any governmental system that is based on the idea that people will voluntarily act against their own interests because they’re just decent that way is doomed to failure.

The Articles of Confederation were Exhibit A in that case.

The national government created by the Articles had no coercive power whatsoever.

It had no ability to tax, for example. Faced with the expenses of maintaining a diplomatic corps, paying off the Revolutionary war debts, and even paying for the delivery of the mail, it could only requisition money from the states and hope that the states would cough it up out of their sense of civic responsibility.

That worked about as well as you would think it would.

For example, between October 1781 and February 1786, the Confederation government requested nearly $16 million from the states, and of that it received a grand total of only $2.4 million. By 1786 its income had fallen to $400,000 a year at a time when the interest alone on the national debt amounted to more than eight times that, and the principal of that debt was about to fall due.

The Confederation government also had no ability to regulate trade. Each individual state was left to do that on its own, and the resultant hodgepodge of state regulations effectively crippled both interstate and international trade.

Most importantly, the Confederation had no way to enforce its own laws.

On the practical level, there was no national judiciary. The highest courts in the land were the state supreme courts, and they had no interest in ruling against the interests of their own states. Nor did they have the legal authority to do so, given their charge to enforce state laws rather than national laws.

Which, on a theoretical level, was exactly the problem. The Articles of Confederation explicitly granted to the states their full sovereignty, which effectively made the new United States more of a United Nations sort of organization than a real nation because it meant that state law trumped federal law.

The states, in other words, could nullify national laws anytime they wanted to do so, simply by passing a different law.

And this too worked about as well as you would expect it would.

By 1786 it was clear to everyone concerned that the United States of America was in serious trouble. Its ability to govern the various states was effectively nil, it was about to default on its debts, and collapse was simply a matter of time.

Enter the Constitutional Convention of 1787.

The Federal Constitution that emerged from that was specifically designed to remedy the problems of the Articles of Confederation. It was based on classical republicanism and did not waste time with the idea that people were basically good and would do the right thing without being forced – instead, it was based on the idea that people were basically selfish and power-hungry, and that these traits could be usefully balanced and checked against each other to produce a viable government. And it gave to the new federal government all of the powers that it had lacked under the Confederation.

The new government had the power to tax. It had the power to regulate trade. And it had the power to enforce its laws – there was a federal judiciary, and the Constitution explicitly stated that federal law was supreme over the laws of the states.

This system has worked pretty well since then. Only once – when Confederation zealots attempted to make their states supreme because of the issue of slavery – did the Federal Constitution face any serious challenges after its adoption, and it is significant that when the time came for those same zealots to try to set up their own treasonous government, they did so by copying the Constitution (not the Articles of Confederation) nearly word for word. Even traitors aren’t that stupid.

But now there is an amendment in the works, brought to you by the Teabaggers, that will bring us back to the days of the Articles of Confederation by allowing the states to trump federal law. It will undo the work of the Founding Fathers, and will no doubt create exactly the kind of instability, chaos and dysfunctionality that the Constitutional Convention was called to put an end to.

Because that’s just the kind of Constitutional scholars the Teabaggers are.

My guess is that they don’t really understand what they’re doing. Precedent, after all, is on my side on that point. They just think they’ve found another way for states they control to opt out of their responsibilities to the larger community around them, another way to prove the Founders right by exercising their vicious selfishness in the matter of greed and power.

And perhaps they will succeed.

If that happens, though, watch your back. There aren’t many James Madisons left in the world today, and whether we could undo the damage of a return to the Articles is an open question.


Janiece said...

Ah, the stupid, it does indeed burn.

Thanks for an excellent post, David.

Nathan said...

And perhaps they will succeed.

Against all evidence, I a bit more optimistic than you seem to be. I'm fairly confident they'll have their silly asses handed to them.

Eric said...

David, thanks for the post and analysis.

I have to admit, though, that part of the reason I didn't do my own post on this is that the teabaggers' thoughts on this fundamentally confuse me. Here's why: even with the 17th Amendment taking away the representation of states in Congress, the elected Senators and Representatives still are the products of the democratic process in their home states--the only difference is that instead of the Senate being:

The People -> State Legislature -> The Senate

...both houses are now:

The People -> The Bicameral Federal Congress

...and the state legislatures remain:

The People -> State Legislature

What I'm trying to get at is that in either case the citizens of the various states already have the power to essentially accomplish what the proposed Constitutional amendment would do--they can elect to Congress people who will repeal Federal statutes. See, the proposed amendment doesn't allow for individual states to nullify; according to TPM, all it would do is:

[I]f two-thirds of the states collectively find a federal law or regulation abhorrent or misguided, they should have the power to repeal said law or regulation. The law would then be sent back to Washington for further consideration, at which time Congress may choose not to act again on the matter, or they may vote to override the states' repeal and pass it in finality.

Which is bizarre because at the present time no supermajority is required to repeal a statute (unless a veto override becomes necessary) and repeal is effective as soon as 51% of the House and Senate pass a repeal law and a president chosen by 51% of the nation's electors signs it into law. Did none of these teabaggers watch Schoolhouse Rock as kids?

Or, approaching it from another angle, the mentality of the teabaggers appears to be that they're not a minority, that they are some kind of secret majority and... and... and I don't even know. One tries to imagine some white-haired crypto-libertarian saying, "The Federal government has 51% of the public boondoggled, let's fix it by making it so if 67% of the state houses chosen by that 51% can stand up for us." I just don't get how that math is supposed to work for them. And the clutch slips and shrieks every time I try, which is why I didn't have anything to say at Giant Midgets. It's like government by Gumby or something.

David said...

@Janiece – thanks!

@Nathan – I would be thrilled if you were right and I was proven wrong, just thrilled. But living in Wisconsin this past spring has taught me to take nothing for granted.

@Eric - I wasn’t really focused on the whole 17th Amendment thing, since that seemed to me to be a whole other kettle of stupid. I was focused on the proposed amendment that you reference below that, which calls for a 2/3 majority of states being able to send back federal legislation.

The proposed amendment allows the states as a group to nullify federal laws in their capacity as states.. Yes, the people of those states already have the power to repeal federal laws by electing people who will do that for them, but that’s a federal matter – you want to repeal a federal law? Elect federal representatives who will do that. And you know what? That’s fine. That’s what federal elections are for. This isn't about the people of the states in their relationship with the federal government. This is about the state legislatures.

This proposal is nothing more than a power grab for the states. It injects the will of the state legislatures - people who were elected to legislate on state matter, not national ones - directly into the federal lawmaking process, something that is expressly forbidden by the Constitution. That’s a slippery slope, one that was already closed off for public sledding by the Founding Fathers, and for very good reason. It didn’t work in 1786 and it won’t work now.

State legislatures are notoriously easier to control by a determined minority (vide supra re: living in Wisconsin these days) and less effective at protecting individual rights than Congress (repeat previous instructions) – that’s one of the consequences foreseen in Federalist #10. Localistic, short-sighted and generally subject to The Tragedy of the Commons, letting them have direct say in federal legislation – even with such a high bar, even if it takes 2/3 of them to do it – is nullification and we’ve already fought that war once.

It’s not a question of majorities or supermajorities. It’s a matter of the states interjecting themselves where the Constitution specifically (and with good reason) forbids them to go. Nothing good will come of that.

Eric said...

David, I don't think we're disagreeing. You're right that it's an attempt at a power grab--or power handover--to the States.

My point, which I may have made badly, might be covered by a thought experiment: supposing, for the sake of argument, the teabaggers' proposed amendment was put into law tomorrow. What, then, would actually change? It's not clear to me that any of the items on the teabaggers' agenda would get the support of 33 states via whatever political process the teabaggers imagine would be put into place for a state to get on board. Take, for the purposes of our thought experiment, so-called "Obamacare"*: as best as I can tell, only 26 states have joined in the nullification lawsuit, seven states short of what would be needed if the nullification amendment were put into place. And if, for the sake of argument, the majority of voters in 33 states were that dead-set against "Obamacare," doesn't it seem they could have an easier time electing legislators favoring repeal (and to defeat a Senate filibuster and to override a presidential veto) than taking over those state governments. And the "Obamacare" suit isn't even that good an example, since the issue has brought out rifts within state executive branches and between legislative and executive branches--e.g. some of the AG offices joining the suit may have effectively gone rogue to do so (invoking their office's discretion), in other cases legislatures have tried--in violation of separation of powers--to dictate actions to their executive counterparts.**

One has to imagine, as part of this thought experiment, the looks on their silly little faces when they were handed the changes they want on a platter when the result turned out to be... probably exactly what they already had. Would they argue with the result? The gist of their complaint is that the process is broken because it didn't produce what they wanted, but the truth is that the most likely scenarios in which they get what they want are, in fact, anti-democratic, anti-majoritarian ones (i.e. appealing to the SCOTUS).

Again, I don't think we're ultimately disagreeing.

It's sort of like one of the stupid things about their birther wing: one of the baffling mysteries concerning the birthers is why they want so badly for Joe Biden to be the President? Of course, maybe they think Obama's resignation would force Biden's--but when they started making a noise, Biden would have been replaced by Nancy Pelosi, and I didn't think they liked her very much, either. My point being that in both the case of the amendment proposal and the birther thing, the teabaggers seem to be under the strange and dubious impression that if things were different, they wouldn't be the same, if you know what I mean. That if the Constitution were magically amended or the 2008 election were somehow voided, the result would magically be their version of America and not some variation of what really happened in the real world in the real America that has no resemblance to their fantasy.

*I hate that word, but it's shorter than re-typing "comprehensive national healthcare reform" or somesuch over and over again.

**In NC, the state legislature was seized by Republicans in the midterm and they immediately voted to direct the elected AG (a Democrat) to join the suit--and were immediately vetoed by the Democratic Governor. Which I go into partly to illustrate part of my point: part of the teabaggers' idiocy on the Constitutional amendment issue is that they're trying to subvert the current procedure (which doesn't give them the results they want) with an even messier one that's unlikely to produce different results. Which is really, really dumb.

Eric said...

Oh, one more point: in the improbable event the nullification amendment were ratified--and I don't think the teabaggers have the math to do that--state meddling in Federal legislation would no longer be Constitutionally forbidden. It might still be a bad idea and there might be many other objections to it. But it wouldn't be unconstitutional at that point, and that objection isn't really applicable.

David said...

No, I don’t think we’re really disagreeing at all, Eric. But our focus is different.

You’re just more focused on the practical ramifications of this proposed amendment (the difficulty of actually accomplishing anything under its presumed provisions, the legal mess that will result, the fact that the results will likely not match the fantasies involved), whereas I’m focused on the Constitutional principle of the thing (the supremacy of the federal government over the states).

This is probably in part due to our backgrounds. You’re an attorney, and therefore more likely to pay attention to the practical legal ramifications of such things – those are what you deal with every day. And I think your analysis of that aspect of it is spot on – it won’t work the way they want it to. Getting two-thirds of the state legislatures to agree on anything is a trying task, and I’d be fascinated to see what sort of mechanisms they do come up with for states to announce they are on board.

I’ve never understood what the Birthers thought they would achieve either, given the realities of the line of succession.

I’m a historian, though, with a focus on political culture – the ideas behind what is being proposed are my concern, and I find them worrisome. Not so much because of what they themselves represent (as you point out, they’re impractical) but for the principle they violate and the next move that will no doubt come from it. This represents a complete reversal of one of the foundational ideas underlaying the Federal Constitution of 1787, the idea of federal law being a matter for the federal government and only the federal government to create and that once created that law is binding on the states until the federal government says otherwise, and once that precedent is established I am afraid that it will be a short trip to the kind of state sovereignty that made the Confederation government such a nightmare. You know the Teabaggers won’t stop here, especially once it becomes clear that a) their solution didn’t work and b) they apparently have the power to rewrite the Constitution on whim.

And yes, I’m aware that adding an amendment to the Constitution allowing something makes that something no longer unconstitutional. ;) I’m just saying that the Constitution was written a different way for a reason.

David said...

Please ignore the word "just" in the first sentence of the second paragraph. It was an artifact of an earlier phrasing that I forgot to delete when I re-wrote it.

The Mechanicky Gal said...

Don't worry guyz! The Rapture will make all of this moot.
So servicey, that Rapture!

David said...

Which Rapture? There are just so many to choose from these days...

Eric said...

We get a choice of Rapture? Then I want the one where the Man From Mars eats guitars. Because I also heard his enormous stomach is filled with cars and bars, and I could totally spend eternity dancing cheek-to-cheek and toe-to-toe where the people meet and listening to punk rock, don't stop.

Tell me I'm wrong. Tell me you're not there with me.

David said...

I want a Rapture that involves good food, good company (72 virgins? oh, hell no - get me some afterlife company with experience) and no idiots.

That last one is why you have to wait until the end of the world to get it.

Eric said...

That sounds less like Rapture and more like the dinner party I always dreamed of throwing. (Do they still have dinner parties, or is this just my brain getting stuck in the wrong era again?) Though if it went on forever, I suppose it might be Heaven....