Introduction: Centers and Peripheries
A look at the early history of the United Provinces of the Río de la Plata — a political structure ancestral (partly) to the modern-day Argentine nation-state — reveals many interesting parallels with our own experience in the United States. The European empires’ settler colonies in the New World had much in common: their European-derived populations had problems with native peoples, were generally implicated in slavery, and became embroiled in conflicts with their imperial overlords. Their concrete experiences gave rise to a consciousness of being American, which strengthened by disputes with their overseas rulers, led to movements for independence, that is, to political secessions. Many (if not all) later fought among themselves over issues of centralization versus local autonomy.
This last set of issues forms the core of our interest here. Were different outcomes possible? Would different institutions or ideas have led to other outcomes? Whatever we find, it will probably jar with the idea that the United States constitutes the great exception to mankind’s normal plight; and may suggest instead, that the United States has generally been right on schedule with the problems to which federative systems tend to give rise.
English colonists cherished self-government and Spanish America had proud traditions of local, municipal government in the cabildos and ayuntamientos. Even though peninsular (Spanish) bureaucrats dominated these bodies, “Spanish colonial government became in effect a compromise between imperial sovereignty and settler interests.” On both continents, new metropolitan fiscal and administrative reforms put local arrangements under pressure. From 1765 the Bourbon king of Spain imposed comercio libre (free trade), that is, some readjustments within mercantilism aimed at producing more revenue. English historian John Lynch writes: “The economic dependence… of Spanish America had its origin not in the age of inertia but in the new imperialism.”
Educated settlers in North and South America were familiar with recent European liberal-republican and jus-naturalist thought. In Latin America, white Creoles pondered their injuries and their rights until external events – the Napoleonic wars – opened the doors to action. With Joseph Bonaparte on the Spanish throne (1808), Buenos Aires, capital of the Viceroyalty of the River Plata (Río de la Plata) professed allegiance to the central junta in Spain, which “governed” on-the-run in the king’s absence. Peninsulares (resident Spaniards) launched a coup to remove Creole military heroes, who turned back a British invasion (1806-1807), from Bonaerense [Buenos Aires] councils. Creole soldiers and middle-class intellectuals called a cabildo abierto (open council), which announced a Congress to meet in May 1810. The old cabildo folded, but the heavily divided Congress failed to vote for independence. Postponed by conflicts within the extensive River Plata Viceroyalty itself, such gestures had to wait until 1816.
Revolutions, Independence, and Problems of Scale
In September of 1815 Simón Bolívar, the famous Liberator of northern South America, wrote his famous “Letter to a Gentleman of Jamaica.” (He was temporarily exiled there.) With Spain’s New World Empire rapidly dissolving, he pondered the question of scale and concluded that “America can well tolerate seventeen nations…” This was partly for the following reason: “The distinctive feature of small republics is permanence: that of large republics varies, but always with a tendency toward empire.” Bolívar died in 1830 in Colombia convinced that Latin America was “ungovernable.” This was probably a fair judgment. Despite his reservations, Bolívar himself had tried to build on too great a scale.
But what was supposed to happen when local societies (or their leaders) decided to detach themselves from an empire? Was some territorial subunit the obvious heir of imperial “sovereignty” (defined provisionally as Bodin’s supreme and inherent state power)? International law and political theory have given insufficient guidance. There was of course the old rule that no one is to rebel. But, alas, in the Americas revolutions, or wars of secession, happened. What then? A default rule (uti possedetis) suggested that the largest former imperial administrative unit was the logical successor state. If so, Mexico City as capital of the Viceroyalty of New Spain should hold sway from northern California down to Panama, and an independent ex-Viceroyalty of the Río de la Plata (established in 1776) should rule present-day Argentina, Uruguay, Paraguay, and Bolivia. Practice never entirely followed the default rule, but many rising politicians in Buenos Aires embraced it.
José Carlos Chiaramonte on Obstinate Provinces
But if the viceroyalties were not the answer, what next-lesser units would qualify? The work of Argentine historian José Carlos Chiaramonte reconstructs some possible alternatives concretely given in Argentine political history. Here a survey of his essay “The Question of Sovereignty in the Genesis and Constitution of the Argentine State” (2002) will have to suffice. He begins at the beginning: “The question of which came first, the nation or the provinces, the whole or the parts, has been a delicate problem in Argentine constitutional history, especially since from the answer given, the right of each part to separate from the whole can either be sustained or denied.”
Chiaramonte observes that the will to find a “nation” at the beginning of things has been strong among Argentine constitutionalists. Consider the one who wrote in 1957: “‘The Argentine Nation began to be a unity in the colonial period and continued to be such after the May  Revolution… the provinces never acted as sovereign states but as entities created within the Nation as integral parts…”; or another, who affirmed in 1964 “a singular, national entity, heir to the Viceroyalty, which after a long period of anarchy and disorganization, took decentralized form between 1853 and 1863.” (Here are echoes of Rufus King at Philadelphia, or any High Federalist tract from 1787 on.) In 1948 Legal historian Ricardo Levene even found an incipient Argentine patriotic law antedating the Code Napoleon and corresponding to a founding moment.
Chiaramonte comments that here “a juristic fiction or postulate… has been converted into an historical thesis which blocks [our] vision of the process opened by independence” and also “fails to coincide with what really happened in the process of River Plata political organization, when the first sovereign entities existed after 1810 and consisted of cities with [their own] ayuntamientos (councils). Later, these cities became capitals of provinces which tried to organize as sovereign and independent states, and acted as such,” albeit with mixed results.
The Rise of Abstract Sovereignty
Chiaramonte outlines the history of the concept of sovereignty, from Spanish Scholastics to the 15th and 16th-century writers who radically redefined it. To “endow the king with all power necessary to establish an order of harmony and justice, for which in his judgment intermediate social groups would not suffice, Bodin attacked feudal and estate powers in favor of royal power unhindered by any kind of control.” This power — above the laws — was sovereignty. Hobbes, Locke, Rousseau, and Kant believed in modern, singular sovereignty in a unitary state. By contrast, Rousseau resembled the Scholastics in one respect: for him the people ultimately possess — and cannot alienate — their sovereignty. This mixture of sovereign people and direct democracy would influence the Latin America colonial rebellions.
Some Spanish writers of the 17th century clung to remnants of medieval organic political ideas inconsistent with modern sovereignty and 18th-century Spanish reformers carried forward these apparent contradictions. Under pressure of the French Revolution, Spanish reformers combined diverse traditions, some Spanish, some not, among them natural law and the law of nations. Chiaramonte cites Richard Herr who notes that these reformers created a liberal tradition, partly drawn from Montesquieu, and “discovered” an ancient Spanish constitution under which the Cortes could limit the king.
Chiaramonte now asks: “But if the mainstream of modern natural law affirmed the indivisibility of sovereignty, it must be asked what would have been the sustaining doctrine of those ‘federal’ tendencies (i.e. confederal) that developed after Ibero-American independence?” In partial answer, he notes the confusion caused by modern thinkers who see federalism through (conventional) North American (U.S.) glasses. Educated Ibero-Americans, however, knew their 16th to 18th-century political writers, some of whom, like Althusius and even Montesquieu, were “still partly immersed in medieval traditions.” Further, educated colonials were familiar with such “confederal unions as the Netherlands, the German towns, provinces, and kingdoms, and of course Switzerland.” It follows that “the much-remarked ‘influence of North American federalism’ refers in reality to only one historical case known to educated Latin Americans of the era; and further, a case badly interpreted by those who, almost without exception, failed to note the radical difference between the Confederation under the Articles and the federal state born with the Philadelphia Constitution.”
Whatever the actual influence of Althusius in Latin America, Chiaramonte notes that “the characteristics of his system correspond to a tradition rooted in the Middle Ages, which continued to one degree or another into modern times.” Latin American independence “opened up a history of conflicts resulting in good measure from the co-existence in these lands of a variety of political entities claiming independent sovereignty.” This multiplicity “was not an aberration” but reflected what men believed in this era: “Sovereign ‘pueblos’ – towns, cities, provinces – asserted themselves as such, and at the same time sought to compensate for their weaknesses in leagues, alliances, and confederations.”
He continues: “But this process, blossoming all over the continent… was not the only thing clashing with the dogma of indivisible sovereignty.” While some stalwarts of the independence movements had embraced unitary, inalienable sovereignty, that very vision “tended to be negated by a variety of ‘intermediate powers’ which were internal to a state [which was] heir to the vanished metropolitan monarchy, and [these powers] such as corporations, and more importantly the ayuntamiento, cabildo, or camara, continued to exist… and retained distinct portions of the attributes of sovereignty.”
The Practice of Local Sovereignty
Chiaramonte characterizes political realities in the old Viceroyalty as follows: “On the eve of the Federal Pact of 1831… the so-called ‘provinces’ considered themselves sovereign states that sought a form of union creating a new national state that would at the same time allow them to retain their status of independent sovereignty.” This was the view of all, especially Buenos Aires which had gone over to confederalism after the “so-called anarchy of 1820” partly brought on by porteńo (Buenos Aires) politicians’ disastrous campaign of unitary centralism, which included military conflict with other provinces and even “foreign” (= extra-Argentine) wars. “On inspection, the series of ‘interprovincial pacts,’ begun with the Treaty of Pilar (1820), shows this reality, given that pacts are, rightly, forms of relations between sovereign entities, and the pacts likewise showed the need to regulate the exercise of this sovereignty.”
Chiaramonte cites various statements to the same effect from Buenos Aires, Córdoba, and Santa Fe, noting that some Argentine historians have long recognized the reality of these strongly confederal views. (Throughout the essay Chiaramonte contrasts confederal with federal, whose now-usual definition rests on U.S. practice.) For example, Carlos Ibarguen recorded in 1929 that “in January 1831, Félix de Ugarteche, president of the commission charged with revising the Treaty of the Littoral, declared that the provinces were equivalent to nations and governed themselves by the norms of the law of nations.”
The reversal of Buenos Aires’ position on confederalism is easily explained “after the brutal aggression which its integrity suffered during the presidency of [Bernardino] Rivadavia, when the unitary party determined to expropriate the city and much of its territory, for the seat of the national government…” This was the crisis of Bonaerense centralism, which had been “the aberration of the greater part of the province’s public men.” Events had created “a firmer base for confederalism…”
It is worth noticing as we go, that Lynch sees Rivadavia — a Benthamite who actually knew Bentham — as “a ruthless administrator” and “an impatient and intolerant liberal” crusading against perceived ignorance and error. (Such assaults on intermediate powers were at the heart of 19th-century liberal reform everywhere.) In their centralizing days Bonaerense reformers “sought to apply a single economic policy,” which meant a free trade model tailored to Bonaerense merchant capitalist interests. This had bad results in the interior and many provinces wanted to keep their protective tariffs, showing in Lynch’s view that “federalism responded to basic economic interests…” Thus contrary to the claim so often made by American (U.S.) historians that tariffs could not have mattered a whit in 1860-1861, they were certainly an important underlying grievance in Argentina, even if the details differed there. (Compare Governor George Clinton warning the New York Ratification Convention that by depriving the state of its revenue tariff, the proposed U.S. Constitution would force the state to adopt more disagreeable kinds of taxation.)
Returning to our main topic, Chiaramonte writes that between 1831 and 1853 the “provinces” continued as independent sovereigns loosely connected in a confederal Argentine nation “understood fundamentally as contractual and non-ethnic.” Buenos Aires stood athwart all attempts at strengthening of the central power. “The sole attribute of sovereignty which the provinces gave up – transitorily, not definitively — was overseas representation, entrusted to the Governor of Buenos Aires, given the non-existence of a confederal Diet or Council.” The provinces maintained their own armed forces, tariffs, ecclesiastical patronage, etc.
Despite the romantic nationalism of “the generation of 1837,” the decentralized order of things yet held. Contractual confederal relations were seen as “reversible at the will of these sovereign cities” (“pueblos”), and provinces made treaties with foreign powers. Buenos Aires rejected the Accord of San Nicolás – a prelude to the Constitution of 1853, a centralizing document (at least on paper) adopted by the other provinces — and stood aloof from the new arrangements; this was its famous “segregación,” or secession, between 1852 and 1860. The famous Bonaerense statesman Bartolomé Mitre, criticizing the Accord in 1852, “repeatedly relied on natural law, the foundation of the contractualist conception of the origin of the nation and of the sovereign character of the entities from which the deputies received their instructions.”
Mitre wrote: “The authority created by the Accord… does not rest on the natural law and thus is a despotic authority. Ask each delegate… if he thinks himself authorized for that.” Further: “I look at my mandate and see that I am sent here by a ‘pueblo’ to this place to make and complete the law… but I am not authorized to give my vote for a power that is an open contradiction with my popular mandate.”
(Compare William Paterson of New Jersey in Philadelphia on June 9, 1787: “We are met here as the representatives of 13 independent, sovereign states, for federal purposes. Can we consolidate their sovereignty and form one nation, and annihilate the sovereignties of our States who have sent us here for other purposes?” )
Divergent South and North American Models?
Working within a certain perception of United States federalism, Mitre in fact wanted a union of some kind and denied the right of Buenos Aires to make its own law on citizenship. And here Chiaramonte offers detailed exposition of the confederal/federal contrast he has already proposed. Here we may find some surprises.
He writes: “The question of whether the [U.S.] Constitution was the product of the decision of thirteen independent states or of the people of a single state arose very early.” Many writers, he adds, have tried to discover sovereignty in the Continental Congress rather than the states; yet the colonies, having declared themselves states independent of Great Britain, became equally independent of one another. Unified against the metropolis, their mutual relations were not always good. With differing histories and habits, they were divided by distance, and “considered themselves independent states and not united states…”
John Adams termed Congress “‘only a diplomatic assembly’ — an expression we have used for the provinces of the Rio Plata toward 1830…” Several states announced their own independence before Congress voted in July 1776: Rhode Island and Massachusetts, in May, and Virginia in June. Further, “the Constitutions of Pennsylvania (1776) and Massachusetts (1780)… asserted explicitly the independent character of those states.” Chiaramonte finds it significant that “the ratification of the Constitution was not by the people of the Union but by the people of each state.”
Chiaramonte finds opposing evidence “scarce,” by which he seems to mean direct testimony from the years in question. Later, of course, Justice Joseph Story told a tale in which the states “had not been independent sovereignties under British dominion, and later were sovereign only in a limited sense…” Yet the Constitution of Massachusetts of 1780 had the following: “The people of this commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent state” and “to exercise every power, jurisdiction, and right… not… delegated to the United States of America, in Congress assembled.”
Chiaramonte points out that in both cases — Anglo-American and Hispano-American — “there is another common trait… which I suggest merits further analysis”: namely, the fact that not everyone agreed to the premise of state sovereignty. “The fact that views like those of Story or of Alberdi and others… however erroneous we may consider them, should have existed, indicates that the thesis of the sovereignty and independence of the states is not sufficiently evident by itself.”
For Chiaramonte, there is another common factor which may unravel this knot: the fact that these were all new states. What was at issue, then, was “not the sovereign character of a solid political entity long recognized, but political entities recently born, in which the affirmation of sovereignty and independence is a postulate of the ‘founders,’ i.e. the political elites of each state…” Thus when U.S. legal historian Raul Berger disputes Story’s narrative, “his affirmation and all the evidence he has gathered correspond to the political criteria of the actors of the moment, not to the real existence of these sovereign states, [which is] … another kind of problem.” (If this is the problem, I would just add that U.S. nationalists suffer from it several times over.)
“This would mean,” Chiaramonte adds, “that the definition of confederation in international political law is not wholly suited to the historical cases in hand,” that is, “states of recent formation, which, it is supposed, have recovered a sovereignty that up to this moment resided outside them,” and “whose separate existence is difficult, not only owing to their possible economic, political, or military weakness, but also weak legitimacy…” As much as anything, Chiaramonte reasons, it is “the problem of legitimacy which is implicit in this debate over which was first, the nation or the province, the federal state or the states; a question which the governments of the era analyzed according to the norms of the law of nations.” Since these very norms are – as Chiaramonte has indicated — ill-fitted to what people were doing, belief in them tended to favor centralist solutions.
For their part, the centralizers in Buenos Aires thought that legitimacy should result merely from “converting the colonial city’s role as administrative head of the territory [the Viceroyalty]… into support for its [postcolonial] directing and unifying function, as also occurred in other Hispano-American cases like those of Mexico and Caracas…” Later this premise evolved into “the postulate of a nation created at some moment in the past, whether May 25, 1810 or July 9, 1816.”
These efforts proved disastrous because the states which these centralist leaders aimed to create were out of scale. As Miguel Angel Centeno states, “In Latin America, political institutions suited for a city-state were given empires to rule. We should not be surprised that they failed to do so.”
Chiaramonte concludes: “The alternative of either a contractual origin, based on the assumption of the sovereign quality of the provinces, or one ethnically based on a supposedly nationality preexistent to the constitutional act and determining the same, installed itself at the center of the political struggles up to 1880, when a part of the political elite of Buenos Aires undertook its final resistance to the national power. From that time, then, the idea of an original nationality predominated in interpretations of the political history of the 19th century, even if we understand that it fits badly (as we believe) with the events of that history.”
A North American Conclusion
It is said that victors write the histories of nations. In the United States the Federalist-nationalist story of the Constitution and the Union-Nationalist account of the War of 1861-1865 are the triumphal foundation of all conventional historical narrative. In Argentina, the writings of Mitre, and Sarmiento, and others — reinforced by 20th-century legalists and historians — are the foundation. Contesting these foundations, Chiaramonte has arrayed on-the-ground evidence and concludes that in the course of driving out Spanish government, the constituent Argentine “provinces” (which were essentially city-states with their own hinterlands) formed at most a series of loose confederations. Few outside Buenos Aires thought there was any single sovereign center. Buenos Aires tried to enforce such a union and failed. Shortly thereafter other centralizers prevailed, taking their revenge on Buenos Aires. By the end of the century Argentine nationalists were ready to discover a single sovereign people present before its own birth. These belated Argentine Judge Storys and James Wilsons prevailed, but at a cost to actual Argentine history. By the mid-20th century legal writers and New School historians had grounded a standard historical interpretation on nationalist theorems.
Here there are certainly some similarities to U.S. history well worth weighing. (I have noted a couple and the reader will think of others.) On these matters, my only disagreement with Professor Chiaramonte would be on whether the second U.S. Constitution by itself could change the nature of federalism. (Of course our misnamed Federalists’ propaganda did change perceptions of federalism in Argentina and elsewhere.) In the end, it took Mr. Lincoln’s armies and four years of war to establish U.S. “federalism” as we know it. Given this redefinition by violence, Chiaramonte’s term confederalism fills an important gap. We certainly do need a conceptual alternative to U.S. “federalism” as actually realized and practiced.