We’re heading to a return of the Articles of Confederation
With today’s decision by the Supreme Court to overturn the nearly 50-year precedent established by Roe v. Wade, the nation’s highest court has stated plainly that precedent has little legal bearing in decision making. It is a sad day, reflected in the dissent which saw Justices Stephen Breyer, Elena Kagen, and Sonia Sotomayor writing, “With sorrow — for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection — we dissent.”
This case, Dobbs v. Jackson Women’s Health Organization, will go down in history as one of the most consequential and dangerous cases in the Supreme Court history with Justice Samuel Alito’s condescending and sexist majority opinion being one of the most reviled in legal writing. Akin to Dred Scott v. Sandford, the case will only add to the divisiveness of an already divided country. It paves the way for a nation which has far less federal authority and is made up of a patchwork of state laws that drastically vary between border to border. It is also worth noting the concurring opinion by Justice Clarence Thomas states, “For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” This is a stark and dysfunctional path we are heading towards which could spell ruin for the country.
We do have precedent for this, though.
Prior to the ratification of the United States Constitution in 1788, the United States’s primary governing document was the Articles of Confederation. Ratified in 1781, the Articles established greater autonomy and sovereignty for the thirteen original states with little in the way of federal oversight. The Congress of the Confederation, formerly known as the Continental Congress, attempted to govern at a federal level but quickly discovered the glaring flaws of the Articles.
The thirteen Articles offered little in the way of compelling states within the new confederacy to cooperate with one another or support the larger country. States could refuse to send troops or funding for defense. Congress had no power to compel attendance from representatives, resulting in international treaties languishing in the legislature for months given a lack of a quorum. There were no enumerated rights for individuals. Congress was explicitly denied powers of taxation, resulting in a treasury with no money. In conducting foreign policy itself the Articles, and the Congress guided by such, proved unable to even raise enough funds and troops to ward off piracy, with Thomas Jefferson writing to James Madison in 1786, “It will be said there is no money in the treasury. There never will be money in the treasury till the Confederacy shows its teeth.” So inept were the Articles that the newly formed government could not forcibly remove defeated British troops from frontier forts on American soil.
One of the most prominent supporters of a new constitution was none other than George Washington. He had experienced throughout the Revolutionary War the limits a decentralized, states focused confederacy had. His Continental Army had been unable to pay soldiers, offer food, clothing, and shelter for his men, and he was forced to loot from local farmers for survival. Washington called the new country with vastly more influential state authority through the Articles a “house on fire,” saying that unless emergency measures were taken, the building would be “reduced to ashes.” Washington argued such a decentralized nation was leading the country to “some awful crisis.”
Fortunately for our republic, a constitution was ratified, which outlined a stronger federal government, allowed for greater executive authority in a President of the United States, and promoted the belief that a patchwork of laws should not be the driving force of a unified nation. In addition, the Bill of Rights was added which numerated the rights of individuals. These amendments have only grown over the course of our nation’s history to accommodate to the changing times, offering more rights to larger groups. The confederation, this network of hostile states with wildly different laws, was to be done away with and the states were to truly be united.
That idea, that hope, did not last. We have seen time and time again the conflict brought by states rights and federal oversight. It is a constant tug-of-war which has never settled. Today, instead of clarifying this matter, the Supreme Court has opted to add to the confusion. This, in addition to yesterday’s New York State Rifle & Pistol Association Inc. v. Bruen decision, sees a continuation of a path designed by the Supreme Court to sow legal confusion nationwide. Much like how the country once was under the Articles, we have entered an era in which a strong, central government is largely absent and instead individuals are reliant on a patchwork of state laws to guide them. This was true for marriage equality, is true currently with cannabis legality, and is now true with abortion and the right to choose.
Legal scholars, politicians, and jurists alike have an oath to the Constitution and are meant to uphold it and its founding principles. But as the dissent in Dobbs states, ‘“The Founders,” we recently wrote, “knew they were writing a document designed to apply to ever-changing circumstances over centuries’…The Framers (both in 1788 and 1868) understood that the world changes. So they did not define rights by reference to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning.”
Today’s decision does away with this notion. It returns the country to a time governed by the Articles of Confederation; known for its lack of central government strength, poor ability to negotiate with international allies, inept abilities at raising funds and defense, but most glaring of all today, for its lack of rights enumerated for the individual. The Articles use the word ‘right’ five times. None for the right of the people but almost exclusively for the rights of the states. The Constitution’s very First Amendment states “the right of the people.”
I fear we’re heading to a return of the Articles of Confederation because the Articles of Confederation did not think about the individual or the larger country, only about the states. As George Washington said, if immediate action is not taken, “like a house on fire…the building is reduced to ashes.”
