Finding the Founding (Part IX): Institutional Formation, Identity and Multa de Multis

We are in a State of Nature …. The Distinctions between Virginians, Pennsylvanians, New Yorkers

 and New Englanders, are no more. I am not a Virginian, but an American. 

Patrick Henry, John Adams’ Notes on Debate

              From 1754-1763 the colonies were in the midst of a war for their lives. France and its Native allies were at war with Britain and its Native allies. The consequences imperiled the very survival of the colonies. As war dawned representatives of 11 colonies met in Albany, New York in July of 1754 to discuss the situation. At this Albany Congress Pennsylvania’s delegate, Benjamin Franklin, proposed a plan of union – a union of the colonies (or at least most of them) under a single institutional structure, with the power to make treaties, raise an army and most importantly, the ability to tax. The delegates at the Congress had their eyes on the existence of the whole of the American colonies and so they approved the plan, and sent it to the legislatures of the colonies for adoption. The colonial legislative assemblies rejected the plan.

            What is most important about this plan is the power to tax, therefore, the power to legislate, therefore, the power to have funds to act independently of the states. The important thing is real power. And the colonies had no conception of an entity unto itself, even that of Parliament in Britain, that could have, should have, real power over them, and therefore, colonial legislative assemblies rejected union – not just the plan. They rejected union because it was beyond what they could conceive the colonies being. But Britain could and Franklin’s plan had been kicked to the colonies by the British Board of Trade, a governing entity that helped with colonial management and, of course, imperial trade (which is why the colonies were formed in the first place from the perspective of the Empire).

            After the war Britain realized that the management of the colonies needed to be more complete, and most of all Parliament realized that colonies needed to pay for themselves. You see, as I have mentioned in other posts, the colonies expenses were mostly paid by taxpayers in England. Protection from Natives? Taxpayers in England. Protection from pirates? Taxpayers in England. Courts and administration? Taxpayers in England. When the colonists were asked to help pay for the war, the French and Indian War, they declined. So England decided that the tax system of the colonies, which had previously been neglected, needed to be changed. No more free rides. Contrary to what Americans have been taught, Parliament was not tyrannical, mashing their fingers together like C. Montgomery, but instead they were trying to credibly manage their empire of which the colonists were by birth, culture, language and identity (or at least the nearly 70% that were ethnically British) part of that empire.

Excellent

            And no, they were not Americans – a term which had geographical meaning but little else. They were British, but they didn’t want to pay to be British (that’s pretty American!). The problem was that they were an altered form of British, with several distinctive cultural, economic and social differences, not the least of which was slavery. African slavery didn’t exist in Britain itself, but 20 some percent of the colonial population was African and over 90% of those people were slaves. Most, as we know, were in the South, and though the south ran like Britain in the Middle Ages with Lords, the Planter Class, and peasants, the slaves, this situation, at best, was a drastic deviation from 18^thcentury England, which was transitioning into the industrial era. But in terms of identity the colonists still thought of themselves as Brits, colonial, but still Brits. And these colonials identified their relationship to Great Britain through the King (that they shared with England) by way of their individual colonies. Not a collective sense of “the colonies,” but through individual colonies.

            When the colonists in the various colonies heard of the new tax plan that ultimately included the Stamp Act (which ironically Ben Franklin asked Parliament if he could be the major tax collector for this act), they rioted in the streets and called for another Congress, like the one in Albany in 1754, to convene in New York City. The Stamp Act Congress gives a great clue as to when the Founding could possibly happen. The delegates drafted a number of petitions and declarations that all claimed how British they were and how their rights were their rights just as if they were born in England. Not because they were Americans who loved freedom and not against tyrants, but because they knew that the British, which they were, had rights. What this tells us is that there can’t be a Founding until these British colonists no longer think like British colonists. They may have changed some of their habits, and adopted bad habits that the British in England didn’t have (like slavery), but until they identified as something else and formed institutions that supported that new identity, there can be no Founding.

Perspective makes History

            Parliament repealed the Stamp Act and other measures and went back to the drawing board to find ways to have the colonists help pay for the benefits that came with Empire. But the Townshend Acts didn’t please the colonists either, but no Congress this time. Instead, they tried a boycott, which didn’t work. By 1773, however, Parliament had pealed away the Townshend Acts to only commit the colonists to a tax on tea. Yes, that act. And you know the party they threw. It’s consequences were the Coercive Acts, which triggered another Congress. This congress met in Carpenter’s Hall of Philadelphia in September of 1774. It was there in Carpenter’s Hall that Patrick Henry uttered his famous line of not being Virginian but being American. 

              Such a curious (and prophetic) line should have been a huge topic of discussion for the delegates just to figure out what it meant, but it wasn’t. The quote was recorded, but the delegates left little to no commentary on this monumental quote. Why? Either because it wasn’t actually said, or because it was ridiculous, or it was not meant to be what it seems, but since at least two delegates recorded it in their notes on the debate of Congress, I guess he said it. If you read James Duane’s account, it is out of place if it is really about being “American.” The whole context of the debate was about how Congress would vote and how each colony was to be represented, and in this, Patrick Henry was a Virginian. The question was whether each colony should have one vote, or whether there should be some sort of proportional scheme where large colonies, like Virginia, should have more votes than small colonies, like Rhode Island. Henry’s quote wasn’t about being American, it was a dramatic oration as to his desire for his colony to have more power. In their writings the whole First Congress stressed over and over how British they were, how their rights were British, how their King was British, because …. They were British, colonial British. More importantly, the Congress made a statement about being American, or at least united as one entity. They rejected it.

            More important than this mysterious quote was the motion made by Pennsylvania delegate Joseph Galloway regarding another plan for union. Galloway was the Speaker of the Pennsylvania Assembly and an associate of Ben Franklin. Picking up on Franklin’s Albany Plan, Galloway proposed forming the colonies into a union under an American Parliament that would act as a subordinate wing of the British Parliament and handle the things (taxation) that the colonists found so vexing when the decisions on taxes to pay for the colonies were made in London. Agree to this and no revolution, no Founding. Interestingly enough, the King’s Prime Minister, Lord Frederick North, was about to embark on a Conciliatory Plan (arrived in the colonies in 1775), which gave a formal institutional structure offered by London that mirrored Galloway’s plan of union. The First Continental Congress voted Galloway’s Plan down, and Congress never considered Lord North’s Conciliatory Plan very conciliatory. They didn’t want union because they were not American, they were British, colonial British, whose identity was framed through being a colonist in a particular colony of the British Empire. No Founding.

Lord North: The most hated man who never
set foot in the Colonies. He tried to please.

            A year later, September of 1775, things had changed, but not colonial identity. They rejected Galloway’s Plan, they scoffed at North’s Plan, but then the King spoke. The King was done with conciliation, coddling and cooing to the colonists who rejected the need of the empire for them to pay their fair share for being in the Empire. So, he kicked them out of the Empire and made them independent …. So that British armies could conquer the colonies and bring them back into the empire on Parliament’s terms. (More on this in a previous AmericaHypothesis posted on July 2, 2018).

            To survive the colonies now had to form some sort of union, but being British colonists they formed a union that satisfied their identity as British colonists, not an identity based on being “American.”

            But how can that be said when the colonists declared their independence as Americans?

            Identity and culture are tricky things when it comes to figuring out how the human psyche internalizes them. In the Declaration of Independence, the document gives clues as to the confusion of the moment. Originally, it was written as the declaration of “united States” with each State named separately. Kind of means the identity focused on the colony which became a state (state meaning nation) and not the colonies uniting as one nation. The wording of the Declaration when it comes to naming who or what is becoming independent is ambiguous. Jefferson notes several references to “United Colonies,” to colonists, to states, but not to Americans and America. Why? Because it was not within his grasp to understand himself or those around him the way we do now as members of an entity known as the United States. Instead, looking at the institutional formation of these first states united shows us not an “American” conception of nation, but a colonial British conception – and that means looking at how the union was defined in the Articles of Confederation.

Had the Articles survived Dickinson would

be on the $1 bill.

            The Articles were first submitted from committee authored by John Dickinson in August of 1776 and then ratified by the Continental Congress in November of 1777. Over a year of seasoning. Most historians suggest that it was quickly thrown together because of the exigencies of war, but the contrary seems to be clear – and not because the ratification process in Congress was over a year but because of the institutional framework that the Articles established and the identity which the Articles validated. 

            The Articles established an institutional framework that supported every political claim made by British colonists since conflicting views on representation happened between the colonies and Parliament. Most importantly, the Articles did not establish one nation, but instead confirmed the establishment of 13 nations with a connecting institution, the Continental Congress. More important than that the Articles did not establish the Continental Congress as a government, and those Articles was not, strictly speaking, a constitution, but rather part of a constitutional construct which also included the separate state constitutions and colonial practice.

            When, for the last 200 some odd years, Americans have been taught to the contrary about the Articles, Congress, government, constitution, how can these claims be made? How can history be changed? Precisely because this isn’t changing history, it’s changing “heritage.” Heritage and History are often confused. One is the story we tell ourselves about who we want to believe we are and the other is a discipline devoted to interpreting evidence to try and understand who we were.  Our “Heritage” is that Americans, even before the Revolution loved freedom (and conversely the British hated freedom). We fought against tyranny, by fleeing the Old World for religious reasons, and settling in a well spring of freedom that called to us from across an ocean (unless you were African and then despotism and depravity called you). So “Heritage” also convinces us that “United States” has one meaning (our contemporary meaning of one nation indivisible), and that “Americans” were always what we think they are (our contemporary definition of a people, in a nation, with liberty and justice for all). We assume, because we define a thing a certain way and that thing was talked about 250 years ago that those who spoke of the thing we know to be true meant the very same thing. But they didn’t. British colonists did not know what it meant to be American, they had to invent that concept. And Inventing the Republicwas not as intuitive as we, and historians, and our “Heritage” have made it seem.

This book does in 9 chapters what this blog is trying to do

            The Articles merely parroted British colonial conceptions about institutional formation that the colonists had argued for over a decade. They had claimed loyalty to a King, but to a King that only had certain powers and prerogatives to handle, foreign policy, maintain the military and establish general parameters of colonial life. Not directly govern the colonies. They admitted that Parliament was owed “all due subordination,” but “due” meant that Parliament in England only had certain powers to regulate externalities of the colonies. Not directly govern the colonies, or directly tax, make law for, the inhabitants of the colonies. Only the colonial assemblies, they had argued since the Stamp Act Congress, could tax or make law for the internal policy of the colonies. Each colony controlled itself. Each colonial assembly with the support of the King, could govern the colonies. The British in England never understood this concept, in part, because the colonists claimed this was their British right, but Parliament knew that British rights extended to wherever Parliament wanted to go.  

             “But the colonists weren’t represented by Parliament.” I heard you. But you’re wrong. At least from the British perspective that the colonists claimed to have had. In the Empire, representation was not based on a Modern concept of choice, rational decision making through voting. Instead, it reflected Archaic patterns of connection through blood. Every colonist, just like every average person in England, was represented by the House of Commons because they had common blood. They didn’t vote for that blood and they needn’t vote to be represented by the Commons. Blood represented them, just as the noble blood represented those of noble birth in the House of Lords.

People were represented by their blood: noble or common

Representation in real British constitutional terms was by the fact of your birth, not by the act of your vote. The colonies, imperfectly British as they were, had developed a whole different constitutional understanding because representation in your local colonial assembly wasn’t tied to birth it was mostly tied to land ownership. So the British colonists got their Britishness wrong, or at least they got wrong what they thought it meant to be British. It was this concept of representation and who could make law that they incorporated into the Articles. It was this concept of institutional formation that tells us that they forming a system based not on being “American” but on being British colonists.

           Here’s part of the evidence and it can only come from looking at what the Articles actually conceived.

             The first article was just about the name – that the new confederation would be the United States of America, but the meaning of this is lost on a reader in the 21^stcentury who has a conception of the USA as a nation where state meant a province and province means a subordinate part of a greater whole. British colonists didn’t think that way. Why would they? They had always been separate, independent colonies and so state to them meant what we only term today as nation – but in the 18^thcentury state meant nation – a State.

Except for the Alt-Right, we don't look at the U.N. as government
because it can't make law, and it can't tax to survive on its own.
It is the nations of the world "in Congress assembled"

Besides putting this in context with thousands of other references which you don’t want to read, the Articles give us a clear indication by what the Delegates of Congress actually meant – they meant nation and wrote state:

Article II: Each state retains its sovereignty, freedom and independence and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled. 

You may not see it, hell, 200 years of Historians have overlooked it (to serve Heritage instead of their calling), but it is there. Do you see something peculiar? No? Everything looks pretty constitutional, does it? Oh, except that last part, but that can’t mean much, can it? It can’t be important because you’ve never read it before and it sounds stupid anyway. But that phrase “in Congress assembled” is the key to understanding the whole article and why they wrote state but meant what we call nation. It’s easy to get if it wasn’t the USA. Each “state” is separate, and under its own power. If this was any other configuration, you would easily get that, but its hard because we think we know, and so in the past they must have known, just what America was. But they weren’t Americans, they were British Colonists who had lived in a framework where the empire, through the King, had unity, but their home colonies were all as separate as oil and vinegar.

I think it's rather obvious that this isn't used on salads

The only time they had unity of any sort was when and where their delegates met “in Congress assembled.” The only time the “states” as nations didn’t control everything about themselves was when their delegates met “in Congress assembled. There was no one nation. No E Pluribus Unum, out of many one, there was Multa de Multis, many out of many. 

            Most significantly, Congress was not a government. Instead, it took the place of the King as the symbol of their struggle together and a body in which they could find unity (in Congress assembled) to solve their collective problem of staying alive as the British were trying to conquer them. In no way does Congress possess legislative authority and most importantly, Congress, under the Articles, has no power to tax. They can ask for money, but they can’t require it. This conception was exactly what British Colonists had rebelled in favor of in the first place – Parliament (King, Lords and Commons in England) could not tax the colonies because the colonies had separate and independent governments (legislative assemblies) to do that. So what did they create? The Articles along with the state constitutions established a system where King, and England, was replaced by Congress, and only the states had power to govern the states. Thirteen nations and one form of unity, in Congress assembled, to organize mutual interests, like peace and war, weights and measures …. But not making law. Congress, like the King, was a sovereign, but the states possessed sovereignty, the power to make law. 

              And Power is what institutional frameworks are about. After 8 years of fighting for the independence of each of the nations of the continent, members of Contitnental Congress and the Continental Army realized that their conception of the America was not States in Congress assembled, but in a new configuration of one nation out of many. E Pluribus Unum drove the desire to form a more perfect union and develop institutions of power that got rid of states as nations and instead devised states as subordinate to a government of the whole. Americans had not initiated the American Revolution, British colonists did, and the Articles were not what we know of as the United States. That concept was founded in the development of the one nation framework of the Constitution of 1787. But even though I used the word “founded” the Framers, were not the Founders, because America is not about power, and therefore not founded strictly by the Constitution. So, believe it or not, we will not find the founding until, a very fitting, for those who know me, installment X