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The Articles of Confederation and the Constitution

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The Articles of Confederation and the Constitution An Analysis of Two Federal Structures: The Articles of Confederation and the Constitution DOUGLAS G. SMITH" TABLE OF CONTENTS I. IN1RODUCTION • • • . • • • . • • • • . • • • . • • • . • • • • . • • . • • . • 250 JI. EARLY MODELS OF POLITICAL UNION • • . • . • • • . • • • • • . • . • • • 258 A. Montesquieu~ Model: A "Confederate Republic" . • . 260 B. Valle/~ Model: Mutual Defense and Commercial Union . 261 C. Pufendoif~ Model: A "Perpetual Treaty" . • . • . • . 264 Ill. TEX1UAL ANALYSIS: COMPARISON OF TilE CoNSTITUTION AND TilE ARTICLES OF CONFEDERATION • • • • • • . • • • • • . • . • • • • • 268 A. Structural Similarities . • . • . • . • . 270 J. Formation ofa Union . • • . • . • • . • • • . 270 ,2. Reciprocity Among the States . • . • . • . • . 212 3. A General Government of Enumerated Powers . 278 4. Residual Powers Retained by the States . • . • • . • • . • 281 5. Constitutional Protection for the States as Entities . • • . 283 6. Supremacy • . • . • • . • . • . • . • . • • . 284 B. Structural Differences . • . • • . • . • . • . • • • • . • • • . • 285 1. Scope ofEnumerated Powers . • • . • . • • . 285 2. The Sweeping Clause • • . • . • . 288 3. Source of Political Authority . • . • • • • • • . • . • . 291 4. The Guarantee Clause . • . • • • . • . 294 • Associate, Kirkland & Bilis, Chicago, JI. J.D., Northwestern University School of Law; B.S./B.A., State University of New York at Buffalo. I am grateful for comments on previous drafts of this Article from Stephen Gardbaum and Thomas Merrill. 249 5. Amendment • . • . • . • . • 299 6. Ratification . • • • . • • . • . • • . • 301 7. Residual Powers Retained by the People as Well as the States . • • • • . • . • . • . • • • . 301 IV. SOCIAL COMPACT THEORY AND THE PoLmCAL AUTHORITY UNDERLYING THE GENERAL GOVERNMENT . • • . • . • • . • . • • • • . 302 A. Background: Constitutions as Compacts . • • . • • • . • . 302 B. States as Contracting Parties • . • . • . • • . • • . • • • . • • • 307 C. The Articles of Confederation and the Constitution • • • • • . • • . 310 I. Confederate Republics........................... 310 2. The Constitution: A Partial Consolidation . • . • . • • • • 3 I3 a. Bicameralism and Equal Representation of the States in the Senate ...................... , • . 319 b. The Electoral College . • • .. • .. .. .. .. .. 323 c. Residual Powers Retained by the Stares and the People • • • • . • • . • . • . • . .. 323 d. Amendment . • . • • • . • . • . • . • • 324 e. Ratification . • • • . • . .. • • • • • • • . • . • .. • • 326 V. APPLICATIONS .•.•....•.••..••.•..••• , ••••.•.•.. , • . • • 328 A. Amendment Outside Article V . • . .. • . • • • . • . • . • 329 I. Professor Ackerman~ Theory: Structural Amendment . • . • 330 2. Professor Amar~ Theory: Popular Sovereignty . • . • . • • • 333 B. The Constitutionality ofSecession • . • • • . • . • • . • • . • . • • • 337 C. Interpretation ofthe Enumerated Powers of the General Government . • • • . • . • • • • . • . • • . 338 VI. CONCLUSION • • .. • • • . .. • . • • . • • • • . .. • • .. .. • • • • 340 The truth is, that the great principles of the Constitution proposed by the convention may be consid­ ered less as absolutely new, than as the expansion of principles which are found in the articles of Confedera­ tion. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old. 1 I. INTRODUCTION Recently, issues concerning the federal structure of the United States under the Constitution, and the role of the states as entities in this 1. THE FEDERALIST No. 40, at 255 (James Madison) (Edward Mead Earle ed., 1976). See also GORDON s. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776- 1787, at 359 (1969) ("What is truly remarkable about the Confederation is the degree of union that was achieved."). 250 [VOL. 34: 249, 1997] Two Federal Structures SAN DIEGO LAW REVIEW structure, have come to the forefront of legal scholarship.' For example, a number of questions have been raised concerning the powers allocated between the federal government and the several states. Questions such as the proper scope of the federal commerce power,3 2. As one commentator has noted, historically there has been great debate over the precise meaning of the tenn "federalism": [a]lthough virtually no one contests the significance of federalism's influence on the organization and operation of American government and poJitics, what is contested endlessly is the precise meaning of federalism. Remarkably, the specific form and intentions of the Constitution of 1787 have not been able to create a settled, broadly shared meaning of the tenn. ROBERT W. HOFFERT, A POLmCS OF TENSIONS: THE ARTICLES OF CONFEDERATION AND AMERICAN PoLmCAL IDEAS xi (1992). Despite disagreement over what exactly "federalism" is, federalism concerns have been discussed by legal commentators in a variety of areas. See, e.g., SAMUEL H. BEER, To MAKE A NATION: THE REDISCOVERY OF AMERICAN FEDERALISM (1993); RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987); VINCENT OSTROM, THE POLIDCAL THEORY OF A COMPOUND REPUBLIC (2d ed. 1987); Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987); Raoul Berger, Federalism: The Founders' Design-A Response to Michael McConnell, 57 GEO. WASH. L. REv. 51 (1988); Murray Dry, Federalism and the Constitution: The Founders' Design and Contemporary Constitutional Law, 4 CONST. COMMENTARY 233 (1987); Daniel A. Farber, The Constitution's Forgotten Cover Letter: An Essay on the New Federalism and the Original Understanding, 94 MICH. L. REV. 615 (1995); Stephen Gardbaum, Rethinking Constitutional Federalism, 74 TEx. L. REV. 795 (1996); Jacques LeBoeuf, The Economics of Federalism and the Proper Scope of the Federal Commerce Power, 31 SAN DIEGO L. REv. 555 (1994); Calvin R. Massey, Federalism and Fundamental Rights: The Ninth Amendment, 38 HASTINGS L.J. 305 (1987); Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484 (1987) (reviewing RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987)); Henry Paul Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLOM. L. REV. 121, 124 (1996) (noting that there have recently been fifteen state resolutions reaffirming the Tenth Amendment); H. Jefferson Powell, The Modem Misunderstanding of Original Intent, 54 U. CHI. L. REv. 1513 (1987) (reviewing RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987)); Martin H. Redish & Shane V. Nugent, The Donnant Commerce Clause and the Constitutional Balance ofFederalism, 1987 DUKE L.J. 569; Carol M. Rose, The Ancient Constitution vs. The Federalist Empire: Anti-Federalism from the Attack on "Monar­ chism" to Modem Localism, 84 Nw. U. L. REv. 74 (1989); Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994); Symposium, Federalism: Allocating Responsibility Between the Federal and State Courts, 19 GA. L. REV. 789 (1985); Symposium, Federalism's Future, 47 VAND. L. REV. 1205 (1994); Symposium, Reflections on United States v. Lopez, 94 MICH. L. REV. 533 (1995); William Van Alstyne, Federalism, Congress, the States and the Tenth Amendment: Adrift in the Cellophane Sea, 1987 DUKE L.J. 769 (1987); A Symposium on Federalism, 6 HARV. J.L. & PUB. POL'Y I (1982). 3. See United States v. Lopez, 514 U.S. 549, 551 (1995) (holding that a statute reguJating the possession of guns within a certain distance of a school exceeded "the authority ofCongress·•[t]o regulate Commerce ... among the several States"') (citation 251 whether the states can impose term limits on members of Congress,4 the ability of the federal government to provide for suits against the states,5 and the extent to which the federal government can define new crimes,6 have recently been addressed in Supreme Court decisions acknowledging the importance of federalism in our constitutional structure. The resolution of such questions is a particularly intractable problem in our federal system within which the national government is granted only certain limited and enumerated powers. As Justice Marshall noted in McCulloch v. Maryland, "the question respecting the extent of the powers actually granted [to the federal government], is perpetually arising, and will probably continue to arise, as long as our system shall exist."7 However, such questions touch only the tip of the iceberg when it comes to examining the nuances of the federal structure established under the Constitution. Many other questions such as the role of the states in the federal system, the "legality'' of amendment to the Constitution outside Article V, and the constitutionality of seccession all omitted); id. at 570 (Thomas, J., concurring) ("The Founding Fathers confinned that most areas of life ( even many matters that would have substantial effects on commerce) would remain outside the reach of the Federal Government. Such affairs would continue to be under the exclusive control of the States."). See also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 583 (1985) (O'Connor, J., dissenting) (arguing that the Framers believed that the commerce power was "important but limited, and expected that it would be used primarily if not exclusively to remove interstate tariffs and to regulate maritime affairs and large.scale mercantile enterprise."); BERGER, FEDERALISM: nm FOUNDERS' DESIGN, supra
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