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.