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The Articles of Confederation

The Articles of Confederation were written almost simultaneously with the Declaration of Independence. When Richard Henry Lee of Virginia introduced his resolution on June 7, 1776, proposing a formal dissolution of the colonial relationship with England, there was an accompanying resolution calling upon Congress to draft a constitution for the “united colonies.” A committee was formed for this purpose under the chairmanship of John Dickinson, and on July 12 it reported a plan for a new government. The Dickinson draft was later revised in favor of strengthening the power of the States, however, and the Articles of Confederation were not agreed upon by Congress until November 15, 1777. Two days later they were submitted to the State legislatures for ratification, and every State except Maryland ratified within the next two years.

Maryland’s refusal to join the confederation stemmed not from any objection to the Articles themselves, but from a concern about the status of trans-Allegheny land in the West. Virginia, New York, Massachusetts, and Connecticut all claimed western lands under their old charters, and there was considerable disagreement over rival claims of ownership by States and land companies. State jealousies also contributed to the dissention, for these vast expanses of territory were a potential source of great wealth and power. Maryland and four other small States—New Hampshire, Rhode Island, New Jersey, and Delaware—took the view that all western lands were or should be the common property of the nation. Fearing oppression by the large States, the small States were the last to ratify the Articles, Delaware reluctantly assenting as late as May 1779. Maryland stood fast, however, and withheld her support until all western land claims were ceded to Congress. Virginia was equally stubborn and did not agree to abandon her claim until 1781. When Virginia at last renounced her right to all territory northwest of the Ohio River (the “old northwest”), Maryland representatives promptly signed the document. The Articles of Confederation did not officially take effect, therefore, until March 1, 1781.

The peaceful settlement of this protracted dispute permanently influenced the nature of the union and helped to lay the foundation for the federal system of government. Virginia contended that, under her sea-to-sea charter of 1609, her territory extended all the way to the “South Seas” (the Pacific Ocean). Had Virginia and the other States claiming western land refused to surrender their claims, it is doubtful whether the Articles of Confederation or any other scheme for a union of all the States would have succeeded. With virtually half of the continent under her sovereign jurisdiction, Virginia might well have become a nation unto herself, and North America might have become many countries instead of one. Ironically, it was Richard Henry Lee, a States’ Rights man and a stalwart foe of centralization, who, more than any other Virginia leader, persuaded the State legislature to voluntarily limit the size of the State. Lee doubted the validity of Virginia’s claim and believed that republican government would not succeed in a country so large as that contemplated by some Virginians. The cession of western territory by Virginia and other States thus served to unify the thirteen original States. It also made possible the creation of many new States in the future, resulting in the formation of a single federal union, under one flag, from the Atlantic to the Pacific.

The controversy over land was actually only one of many issues that divided the large States and the small States in 1776. Members of Congress also quarreled over the method of representation in the confederation Congress and the basis for determining how much each State should contribute to the national treasury to fund the government. The larger States favored proportional representation based on population, which would give them a larger delegation in Congress and more power. The smaller States wanted equal representation, which would give them a disproportionate share of power, particularly if they voted together as a bloc. Should the States pay an equal share into the Treasury or would it be preferable if the States were unequally taxed? These issues were debated throughout the summer of 1776, and the members finally agreed upon a compromise: each State would have one vote in Congress, thus securing the complete political equality of the States, but the expenses of the confederation government were to be supplied by the States in proportion to the value of land within each State. In other words, equality of the States was accepted as the basis of voting power in Congress, and inequality was accepted as the basis for State contributions to the Treasury.

At the heart of this debate was a fundamental problem that would return to haunt the delegates of the Philadelphia Convention in 1787. As Thomas Burke, a representative from North Carolina, put it, “The inequality of the States and yet the necessity of maintaining their separate independence, will occasion dilemmas almost inextricable.” This was no exaggeration of the extent and depth of the difficulty. The Philadelphia Convention, as we shall see, nearly reached a permanent impasse trying to reconcile these conflicting interests. The solution that was finally agreed upon in 1787 was the creation of a bicameral legislature based on State equality in the upper chamber and proportional representation in the lower. From the standpoint of the larger States, this was actually an improvement, since the Congress established under the Articles was a unicameral legislature based on State equality alone. After the Constitution was adopted, this fear and antagonism between large and small States disappeared, only to be superseded by sectional conflicts between the northern and southern States.

Equally momentous in the summer of 1776 was the question of State sovereignty. The location of ultimate political authority was, in fact, the most important issue in the writing of the Articles. Should sovereignty reside in Congress or in the States? The issue was debated at length, but in the end the proponents of State sovereignty, many of whom were architects of the States’ Rights school of thought in later years, ultimately prevailed. Not only did they secure the principle of State equality in the legislature, but they also incorporated language into Article II affirming that “Each State retains its sovereignty, freedom and independence.” Like the Constitution of 1787, the Articles of Confederation rested on the premise that all legislative authority originated in the people of each State, and that the powers exercised by Congress were given or delegated to Congress by the people in the States. Those powers not delegated were reserved to the States or the people.

Article II further provided, however, that Congress was limited to those powers “expressly” delegated by the States. The intended effect of this wording was to prevent Congress from usurping the reserved powers of the States by claiming that it possessed not only delegated powers, but also certain additional powers that might be implied from those specifically granted. Significantly, no explicit references to State sovereignty were included in the Constitution of 1787. The word “expressly” was also omitted from the Tenth Amendment to the Constitution, which stated simply that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Underscoring the principle of State sovereignty, Article III described the confederacy formed under the Articles of Confederation as a “league of friendship.” In essence, therefore, the Articles were ostensibly little more than a treaty among sovereign republics, comparable in this century to the League of Nations or its successor, the United Nations. The “league” was declared to be “perpetual,” and like an international agreement, the Articles contained various provisions for mutual friendship and cooperation among the signatories.

Under traditional principles of international law and comity, for example, it is a common practice for one country to grant certain basic civil rights and privileges to foreigners traveling or residing within its borders that it grants to its own citizens. An American citizen visiting Italy, let us say, or almost any civilized nation of the free world, will find the same degree of protection to his person or property as is enjoyed by the citizens of those nations. He may, to cite just one example, file a lawsuit in the courts of a foreign country in order to assert a certain right. In recognition of this principle, Article IV of the Articles of Confederation provided that the “free inhabitants” of one State sojourning in another State were “entitled to all privileges and immunities of free citizens in the several States,” to “free ingress and egress to and from any other State,” and to “all the privileges of trade and commerce.”

Article IV also provided for the extradition (surrender) of fugitives from justice. It sometimes occurs that a convicted felon or individual charged with a serious offense will escape to a foreign country. The country to which this person has fled is not obliged under the law of nations, however, to turn the individual over to the country from which he fled, even if requested. For this reason, arrangements between nations for the extradition of fugitives are made through treaties. Such is the manner in which this problem was handled under the Articles of Confederation, making extradition a legal obligation.

Finally, Article IV provided that “Full faith and credit shall be given in each of these States to the records, acts and judicial proceedings of the courts and magistrates of every other State.” This meant that each State court was legally obligated to recognize the statutes and judicial decisions of other States, as is customary under what is called private international law or the “conflict of laws.” Thus, in a case of contracts, the laws of a foreign country where the contract was made must govern. Article IV simply applied this principle of international law to the States of the confederacy.

All of these provisions, it should be noted, were carried over, in slightly different wording, to the Constitution of 1787. They were deemed essential because the several States were not legally obligated to recognize or enforce the rights protected. They assumed, in other words, that the States, in their quasi-international relationship with each other, were sovereign entities, and that it would be necessary, therefore, to establish these rights by agreement.

Although the several States, it may be seen, were treated under the Articles as sovereign powers, a heated debate would rage for nearly a century over the issue of whether the States, at the time they entered the confederacy, retained all the attributes of sovereignty. That they voluntarily surrendered certain powers to the confederate government is abundantly clear from a reading of the Articles, and there can be no question that in a real or practical sense they did not possess all of the sovereignty that is enjoyed by an independent nation. But did their voluntary renunciation of certain powers constitute a permanent transfer of power, thereby terminating or substantially reducing their legal sovereignty? This question became critical after the Constitution was adopted, for one of the major premises of the States’ Rights theory of the nature of the union was that the States had always retained their sovereign right to secede from the confederacy or the Federal union. If the States were not sovereign before the Constitution was adopted, then they could hardly claim to possess sovereignty after adoption; but if they were sovereign before such adoption, then it would follow, at the very least, that they came to Philadelphia as sovereign States, which would serve as a point of departure for an argument in support of State sovereignty after 1787.

Statesmen, lawyers, and constitutional scholars have argued the question of State sovereignty almost from the inception of the Constitution. The answer, if there is one, depends in large measure on the definition of sovereignty we adopt, on the wording and text of the documents, and on the perceptions and understanding of the participants themselves. We need not venture a conclusion here to this complex question, however, except to point out that the Founding Fathers struggled mightily with the difficult question of sovereignty from the very beginning. By the very fact that they were taking the unprecedented step of creating a confederation and then a union of States, thereby dividing sovereignty between two levels of government, they necessarily introduced a new concept of sovereignty into political and constitutional theory. Their inability to address the issue of sovereignty directly and resolve it decisively one way or another proved to be a serious, though probably unavoidable, omission.

What kind of central government did the Articles of Confederation create amidst all this confusion over the location of sovereignty? In a way, the Articles created hardly any government at all. So rudimentary were its limited powers that some observers objected later to the description of the Articles as a “constitution,” preferring instead to view the document as something less than fundamental law. The unicameral Congress established under the Articles possessed all of the powers of the confederate government, and these amounted to a paltry sum. Congress was given no more power than it was already exercising—to make war and peace, to send and receive ambassadors, to enter into treaties and alliances, to coin money, to regulate Indian affairs, and to establish a post office.

The powers of taxation and regulation of both foreign and domestic commerce, though essential to the government, were reserved to the States. These were the powers that formed the basis of the dispute with England, and the States were therefore not of a mind to surrender them to another central government. Denied the power of tax, Congress was obliged to rely upon the system of State appropriations that had proved to be hopelessly inadequate in the colonial period. Many of the States failed to cooperate, as might be expected, and the Confederation was almost invariably in a chronic state of near bankruptcy.

Because the States retained their sovereignty, the Articles made no provision for an executive or judicial branch, and all of the functions of the confederation government were concentrated in one legislative body. A separation of powers was not deemed necessary since the confederation had so little power in the first place. The threat of legislative tyranny was indeed exceedingly remote. The executive function was therefore exercised by various committees of the Congress. At one point there were ninety-nine such committees, with overlapping jurisdiction and rival claims of authority. Consequently, there was no executive unity in the confederation, and not infrequently the government spoke in a babble of voices.

Having no judiciary of its own, the confederation authorized the Congress to settle a narrow range of disputes through ad hoc courts. If two or more States, for example, disagreed over a boundary line, any one of the parties to the dispute was free to appeal to Congress for relief. Congress settled some six disputes of this nature during the Confederation period. The Articles further provided that Congress could establish courts to try cases of piracy and felony committed on the high seas and to determine ownership of vessels and cargo in “cases of capture” or prize cases.

Otherwise, the Confederation relied upon the State judiciaries for the enforcement of national laws and treaties. Although certain provisions of the Articles seemed to indicate that they were to be accorded the status of law and “inviolably observed by every State,” there was no provision comparable to the Supremacy Clause of the Constitution requiring the State courts to treat the Articles or any of the laws and treaties of the Confederation as the law of the land. This was perhaps the fatal weakness of the system. Answerable to the State legislatures that controlled their salaries and tenure, and often lacking any real independence because most of the early State constitutions were based upon legislative supremacy, State judges were disinclined to defend Confederation enactments in the face of hostile State assemblymen. Thus the Treaty of Peace signed in 1783 with England, calling for the return of Tory property confiscated during the Revolution, was openly flouted by State legislatures and ignored by State courts. In their role as agents of the Confederation, State officials proved to be unreliable because their first loyalty was to the States they served. What the Confederation government needed and lacked was a system which, instead of going through the State governments, operated directly on individuals through its own agents. Not until the adoption of the Constitution was this serious deficiency corrected.

In light of these difficulties, it comes as no surprise that the Confederation fell woefully short of expectations. During the American Revolution, outbreaks of mutiny were a constant threat to General Washington and his officers because the army was hardly ever paid. In despair, the Continental Congress simply printed more money to finance the war effort, thereby devaluing the currency. In 1780 alone, more than $40 million of paper money, a considerable sum in those days (but “not worth a continental”), was issued by the legislature. Between 1778 and 1783, the United States borrowed several millions from the Dutch and French governments but was so financially destitute that it could not even pay the interest on these loans. After 1783, when the British agreed to vacate the trans-Allegheny territory, the Confederation also lacked the financial resources to garrison the West. As a result, British soldiers continued to occupy their forts in the Northwest, the Spanish intruded upon American soil in the southern regions and interfered with American navigation of the Mississippi, and the Indians roamed Kentucky and Tennessee at will, preying on settlers.

Not the least of the difficulties faced by the Confederation was the serious decline of commercial activity, which further impoverished the government. With impunity, a number of States erected trade barriers and imposed import duties to protect various State economic interests, thereby cutting off or delaying the flow of commerce among the States. Because the Congress had no means of enforcing trade agreements with foreign nations and could not guarantee that the States would comply with the terms, European powers refused to negotiate commercial treaties with the United States. England freely discriminated against American merchants in her home ports and even closed the West Indies to Yankee traders.

Often the States suffered as much from the helplessness of the Confederate government as they did from the excesses and turmoil of their own legislatures. According to the Articles of Confederation, the money power was lodged in Congress. In many of the States, however, radical factions supported by debtors, small farmers, mechanics, and other low-income groups gained control of the State legislatures and used their influence to pass laws fixing prices in paper money, fining merchants for their refusal to accept paper currency at face value, suspending the collection of debts, and forbidding courts to grant judgments for debt. In New England and in the middle Atlantic States, unruly mobs intimidated lawyers and judges, burned courthouses, and interfered with the administration of the law.

The most widely publicized event was Shays’ Rebellion, which occurred in Massachusetts in 1786. Daniel Shays, leading an armed band of farmers and debtors, closed down the courts in the interior and western part of the State and threatened to march on Boston if the legislature did not pass inflationary legislation. Military force was required to put down the uprising. The Articles of Confederation were often blamed for these outbreaks of lawlessness, for the financial chaos of the country, and for the assaults on the rights of property. Shays’ Rebellion probably quickened the pace toward constitutional reform. Those clauses in the Constitution prohibiting the States from coining money, emitting bills of credit, making anything but gold and silver legal tender in payment of debt, and impairing the obligation of contracts are directly attributable to these paper-money struggles in the 1780s.

Despite its many shortcomings, our nation’s first instrument of national government was by no means a total failure. Under the Articles of Confederation, the United States fought to a successful conclusion a long war with one of the most powerful nations on earth, established a new government under a written constitution, and united a diverse population of some three million people scattered over thousands of miles of wilderness. No attempts were made to overthrow the government, and the regime actually achieved a fair degree of order and stability without trampling on the rights of people.

Some constitutional historians have speculated that the Articles of Confederation, had they remained in force, might have succeeded in the long run, and that the government could have eventually evolved into a parliamentary system of some sort, with a cabinet made up of congressional leaders exercising the executive function. This is an optimistic view of the matter, however, and it may be doubted whether the Articles would have long endured without substantial revision. The problem was that, even when members of Congress were aware of the need for change, there was little they could do about it. A major flaw in many of the first State constitutions was the failure of colonial draftsmen to include a provision allowing for amendments to correct errors in the founding document. In some instances the State legislatures sidestepped this difficulty by simply treating amendments as ordinary legislation, thereby assuming the right to amend, as is customary under a parliamentary system. The Articles of Confederation, however, presented a more serious obstacle. Simple legislation required the vote of nine States, making it relatively easy for a minority of States, with a minority of the population, to block legislation. Worse, the Articles specifically required the unanimous consent of all the States for an amendment, making it possible for a single State to prevent any change in the original compact. Thus in 1781 Rhode Island blocked a proposed amendment that would have allowed the Confederation to collect a five percent import duty. In effect, it was exceedingly difficult to pass legislation and virtually impossible to pass an amendment. Indeed, not a single amendment was adopted during the eight years in which the Articles were in force, even though the need for a major overhaul of the system was generally acknowledged by many of the members. Because they could not in reality be changed much, if it all, the Articles of Confederation were doomed to extinction.

By 1786, the situation had become intolerable. The Treasury was empty. The government was so weak and helpless that it could not even protect its western frontier. The United States had become an object of ridicule and jest in England and elsewhere in Europe, and the prospects for improvement and reform were bleak. In a final act of desperation, Charles Pinckney of South Carolina forced the issue of a constitutional convention to a vote on the floor of Congress, only to be soundly rebuffed. Too many members were more interested in their own positions and in the parochial concerns of their individual States than in the general welfare of the country. The American nation was still thought of as a group of nation-States, and the members of Congress were reluctant to surrender their power voluntarily. The government was paralyzed.

If a movement for reform was to succeed, therefore, it would have to be launched outside of Congress. It began by chance in 1785, when Virginia and Maryland signed an agreement settling a longstanding dispute over conflicting commercial interests on the Potomac River. Enthused by this accomplishment, the Maryland legislature came up with the idea that it might be possible for a number of States, through interstate agreements, to improve their commercial relations. Accordingly, the Maryland assembly proposed a commercial convention to Virginia that would include the neighboring States of Pennsylvania and Delaware. Virginia responded by suggesting that the invitation be extended to all of the States, and that a convention be held to consider a general commercial agreement.

Maryland agreed, and in September 1786 a convention met in Annapolis. Only five States were represented, however, and no delegates from New England, the Carolinas, or Georgia made an appearance. Two important delegates to the Annapolis Convention were Alexander Hamilton and James Madison. Seizing an opportunity to organize a constitutional reform effort, they persuaded the delegates unanimously to adopt an address to the States, calling upon them to send delegates to a constitutional convention in Philadelphia the following May. But Congress refused to give its approval, and the proposal seemed headed for defeat.

In November 1786, however, the Virginia legislature broke the impasse with a resolution urging all of the States to send delegates to the Philadelphia Convention. Within a few days, New Jersey responded favorably, followed by North Carolina in January and Delaware in February of 1787. Perceiving the inevitable, a reluctant Congress adopted, without reference to the Annapolis recommendation, its own resolution providing for a convention to meet at the same time and place. All of the other States, with the exception of an intransigent Rhode Island, thereupon agreed to participate in the Philadelphia proceedings. The movement for constitutional reform now had the backing of the nation’s leading statesmen. All the while the Federal Convention was in session in Philadelphia in the summer of 1787, the Continental Congress remained in session in New York, helpless and acquiescent, a spectator, as it were, to its own demise.

The Constitution of the United States that was to emerge from these Philadelphia proceedings in September 1787, it is important to note, was initiated by the States, not by the people at large or by the Congress. Thus it was the States themselves that dissolved their own confederation. Never again would the States together initiate a constitutional change, although the Bill of Rights was the result of their recommendations. Since 1787, however, all of the amendments that have been added to the Constitution have originated in Congress.

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The Articles of Confederation - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

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The Articles of Confederation

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