The problems facing the United States under the Articles of Confederation provide a nullification lesson for today. When states refuse to cooperate, the central government can’t get a whole lot done.
Under the Articles of Confederation, the Congress could not compel the payment of taxes. It could only requisition the states and hope they paid up. In many cases they didn’t, This caused significant funding problems during the American Revolution and was one of the main factors driving the ratification of a new Constitution empowering the general government to levy taxes.
In order to fund the war effort, the Continental Congress issued paper money. As the Congress put more and more of the currency in circulation, it rapidly depreciated, making it increasingly difficult for the Continental Army to purchase supplies. In a letter to Thomas Jefferson dated May 22, 1779, William Fleming said there was between 130 and 140 millions continental dollars in circulation. In an effort to shore up it finances, Congress passed a requisition for $45 million from the states in hard money. Flemming called it “one bold effort to restore its sinking credit.”
In November of that same year, John Jay sent out a circular letter pleading for the states to make good on the requisition.
“It has been already observed that in order to prevent the further natural depreciation of our bills we have resolved to stop the press, and to call upon you for supplies by loans and taxes. you are in a capacity to afford them, and are bound by the strongest ties to do it.”
He want on to write that the remittance was “the price of liberty, the peace, and the safety of yourselves and posterity.”
“Let it never be said that America had no sooner become independent than she became insolvent, or that her infant glories and growing fame were obscured and tarnished by broken contracts and violated faith in the very hour when all nations of the earth were admitting and almost adoring the splendor of her rising.”
Historian Walter Stahr summed up the impact of the circular letter in his book on John Jay.
“But the letter, for all its eloquence, did nothing to stem the continued depreciation of the continental dollar. Within a little more than a year, the rate between the hard dollar and the continental dollar had reached one to one hundred.”
With nothing binding the states to pay their full share of the requisition, they didn’t.
Alexander Hamilton used this experience as a central argument for ratification of the Constitution in Federalist #16. He called the system of voluntary participation by states as “the parent of anarchy.”
“It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war.”
Hamilton argued that under the Articles of Confederation states needed to act in order for anything to get done. Congress could only make requests of funds to the states. It could not directly tax people, property or commerce. If the states refused to fulfill a requisition, Congress was essentially powerless to enforce its will.
Hamilton wrote:
“If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated.”
This is exactly what happened in 1799. The states weren’t required to act and they didn’t. Their inaction thwarted the will of the central authority.
States find themselves in this exact same situation today.
Because of massive unconstitutional overreach, the federal government depends on state action to do almost everything it does. From prosecuting the drug war to enforcing federal gun control, it needs state resources and state personnel to enforce its laws and implement its programs. By simply doing nothing, states have the power to stop federal actions dead in their tracks.
And states do not have to act.
A well-established legal principle known as the anti-commandeering doctrine prohibits the federal government from compelling states to supply resources or personnel to further federal aims. The anti-commandeering doctrine rests primarily on five Supreme Court Cases dating back to 1842. The federal government can enforce its acts and implement its programs, but it cannot make the states help.
Basically, the lesson from the Articles of Confederation is that when states didn’t have to participate, they didn’t.
Today, they still don’t.
And they shouldn’t.
