Thursday, May 21, 2009

James Madison: The Articles of Confederation as Treaty

James Madison, Vices of the Political System of the United States (April 1787):
8. Want of ratification by the people of the articles of Confederation.

In some of the States the Confederation is recognized by, and forms a part of the constitution. In others however it has received no other sanction than that of the Legislative authority. From this defect two evils result: 1. . . .. 2. As far as the Union of the States is to be regarded as a league of sovereign powers, and not as a political Constitution by virtue of which they are become one sovereign power, so far it seems to follow from the doctrine of compacts, that a breach of any of the articles of confederation by any of the parties to it, absolves the other parties from their respective obligations, and gives them a right if they chuse to exert it, of dissolving the Union altogether.

Max Farrand, Records of the Federal Convention of 1787, Vol 1, pp. 122-23 (Tuesday June 5, 1787):
Mr. Madison thought this provision [recommending conventions under appointment of the people to ratify the new Constitution] essential. The articles of Confedn. Themselves were defective in this respect, resting in many of the States on the Legislative sanction only. . . . He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from [the whole] obligation. For these [reasons as well as others] he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.

Max Farrand, Records of the Federal Convention of 1787, Vol 1, p. 315 (June 19, 1787) (paragraph breaks added):
If [Mr. Madison asserted] we consider the [present] federal union [under the Articles] as analogous . . . to the conventions among individual States. What is the doctrine resulting from these conventions? Clearly, according to the Expositors of the law of Nations, that a breach of any one article, by any one party, leaves all the other parties at liberty, to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach.

In some treaties it is expressly stipulated that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war, which in general is understood to dissolve all subsisting Treaties. But are there any exceptions of this sort to the Articles of confederation? So far from it there is not even an express stipulation that force shall be used to compel an offending member of the Union to discharge its duty.

[Madison] observed that the violations of the federal articles had been numerous & notorious. Among the most notorious was an Act of N. Jersey herself; by which she expressly refused to comply with a constitutional requisition of Congs. – and yielded not farther to the expostulations of their deputies, than barely to rescind her vote of refusal without passing any positive act of compliance.

[Madison] did not wish to draw any rigid inferences from these observations. He thought it proper however that the true nature of the existing confederacy be investigated, and he was not anxious to strengthen the foundations on which it now stands [i.e., the new structure should stand on entirely different “foundations”].

“Publius” [James Madison], The Federalist No. 43 (Jan. 23, 1788):
A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate.

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