The age of strict construction: a history of the growth of federal power, 1789-1861

1. Ratification, 1787–1788

Chapter 1 o Ratification, 1787–1788 The Articles of Confederation A survey of American Federalism must begin by answering a difficult question : when did federative government arrive in America? Its formal introduction occurred in 1774, when the first Continental Congress took control of foreign affairs while leaving other areas of governmental activity to the colonial assemblies. As a practical matter, federative government had been a fact of life in the American corner of the British Empire from the time the first settlers arrived in 1607. 1 Webster’s defines an empire as a “state uniting many territories and peoples under a single sovereign power.” A federation , on the other hand, comprises “a league of states in which each member agrees to subordinate its governmental power to that of the central authority in common affairs.” 2 Creatures of royal charters or acts of Parliament, the colonies were never in a position to delegate authority to the government that created them. Yet they shared public authority with British officials in a system that allowed them to largely govern themselves. The colonial governments attended to domestic matters, while Parliament regulated commercial activity and determined foreign policy. The Americans enjoyed almost complete freedom from taxation by the home government, as Parliament effectively delegated its power to tax to the colonial assemblies. As the authority to tax forms the most critical of governmental prerogatives, its delegation to the Americans effected a noticeable if quiet transfer of power. This devolution resulted in a colonial system that was federative in practice if not in law. British offi-  1. John C. Miller, Origins of the American Revolution (New York: Little, Brown, 1943), 29–30. 2. Webster’s New World Dictionary of American English, ed. David B. Guralnik, 3d college ed. (New York: Prentice-Hall, 1994), 445, 496. cials attached no significance to their failure to impose taxes upon the colonies . The home government had merely refrained from exercising its right to raise revenue in America. For the colonists, this omission made all the difference. As they saw it, their rights as Englishmen would be violated if they submitted to direct taxes levied by the home government. The House of Commons gained its monopoly over the tax power on the grounds that the people of England should be taxed only by their elected representatives. The same principle seemed to apply to the colonists. If the Crown could not tax the English people without their consent, how could Parliament tax the Americans when they were not represented in that body? Following the French and Indian War (1754–63), Parliament asserted its long dormant authority to tax the colonies. Americans insisted on maintaining the federative status quo, in which they alone exercised the power to tax themselves. The inability to resolve this disagreement over the authority to tax constitutes the main cause of the American Revolution. Independence did not remove the need for a central government. On the contrary, fighting the Revolutionary War required centralization on a scale theretofore unseen in North America. Yet hostility to the notion of a central power continued and almost proved disastrous. Americans refused to grant their own national government authority to impose taxes, and it defaulted on its debts in 1780. The Continental Congress succeeded in raising funds for the war only because it borrowed heavily; it still had to issue $241 million in paper currency. 3 That amount proved inadequate, and the Continental army suffered horrific deprivations as a result. Even after a new constitution, the Articles of Confederation, went into effect in 1781, national power continued to erode, largely because the new government remained dependent upon the states for revenue. 4 In addition to the lack of a tax power, the Articles impaired the fund-raising ability of Congress by linking the amount it could request from each state to the value of its lands. The states took issue with the Confederation’s estimates of the value of their real estate in order to avoid payment. No wonder many regarded the Confederation as little more than an organization of sovereign states. (Article III described the Confederation as a “firm league of friend3 . Richard B. Morris, The Forging of the Union, 1787–1789 (New York: Harper & Row, 1987), 34. 4. Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), 359.   ratification, 1787–1788 ship.”) As one might expect from an international organization, each...