The Articles of Confederation together with the Declaration of Independence formed the first national compact of the United States of America. Following ratification of the Articles by the states on March 1, 1781, Congress assembled for the first time under a formal constitution. Although the plan of confederation proved inadequate to continental governance after independence, the Articles established in law several of the main provisions of American federalism retained and strengthened in the U.S. Constitution of 1787.
The Second Continental Congress proposed drafting articles of confederation on June 11, 1776, just before a plurality of the states adopted the Declaration of Independence. The Congress approved thirteen articles on November 15, 1777, sending a document to the states for ratification on June 26, 1778. Eight states immediately agreed to “The Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia,” as the proposal was officially titled. On March 1, 1781, Maryland became the last to ratify and the first continental constitution took effect. On the next day, the Journals of the Continental Congress, 1774–89 opened with the words “The United States in Congress Assembled,” recognizing the completion of the ratification process and the new relationship among the states. As the Journal shows, the following days and months found Congress focused on the prosecution of the War for Independence until hostilities with Great Britain officially ceased with the Treaty of Paris, signed September 3, 1783, and ratified by Congress on July 14, 1784.
The institutional deficiencies of government under the Articles became increasingly clear in peacetime, as catalogued most famously by Alexander Hamilton in The Federalist Nos. 9, 15, 20, 21, and 23. According to the Articles, the unicameral Congress could address none of its legislative action directly to individual citizens, nor, indeed, could it enforce any laws pertaining to its proper sphere of authority, the collective choices made by its member states. During the war, the states had pledged to share the burdens of raising troops, but when some failed to follow through with their agreements, Congress lacked the power to sanction them. The Articles granted Congress the power to borrow money, but offered no reliable mechanism to secure funds to repay such debts. Congress could apportion federal expenses, but could not force the states to pay their shares. Congress could make, but not enforce, treaties. The Articles also gave Congress the power to set standards for striking and valuing coinage, fixing weights and measures, and establishing and regulating post offices and postage, but not the ability to sanction its noncompliant members, Congress could use none of these important powers to regulate interstate and foreign commerce. Following the War of Independence, many states erected barriers to trade with tariffs and custom duties that advanced transitory local interests at the expense of national economic development. Rhode Island took considerable advantage of such weaknesses in the Articles by printing paper currency to use for repaying its debts (often devaluing these notes following the exchange), while accepting only specie from its debtors. As Hamilton noted in The Federalist No. 9, a body without enforcement powers could not function effectively as a government. The resulting “government of governments,” he insisted, had not secured the mutual benefits of association to its member states and was unlikely to remain intact, since member states could not be penalized for pursuing their particular advantage at the expense of the whole. As representatives from the states to the Congress increasingly learned, the defects of the Articles could be summed up in the compact’s provisions for remedying these problems—an amendment process that reinforced Congress’s dependence on the state legislatures and disconnection from the citizens of the states.
The idea for an amendment procedure was arguably one of the most innovative aspects of the Articles. Although some American colonial governing documents had specifically provided for amendment (e.g., Article XXXIX of the Charter of Liberties and Frame of Government of the Province of Pennsylvania in America, 1682) and many colonial communities offered some method of revisiting and revising their collective choices, formal amendment procedures remained relatively rare in eighteenth-century constitutional designs. The architects of the Articles not only anticipated the need for correction and improvement, but also designed an amendment process that distinguished such constitutional choices from ordinary acts of legislation. By conceiving constitutional decision making as a separate activity, requiring different processes to show a more extensive degree of consent than would be needed for ordinary collective choices, they significantly advanced the theory and practice of representative, constitutional government. Yet, the amendment procedures described in the Articles seemed unable to address the confederacy’s defects. Article XIII empowered Congress to propose amendments, which would only become effective if they were ratified by all of the state legislatures. Every attempt to alter the Articles failed to achieve the required unanimous agreement of the states.
The aim of unanimous consent is not as unrealistic as it may sound. Colonial experience with covenants and compacts that required profound processes of deliberation and collective choice often produced broad consensus from diverse interests. Well into the nineteenth century, many American institutions were predicated on the idea that interested parties might be expected to discern their community’s long-term common interests and set aside narrow interests when the good of the whole required. The belief that the general government should only address itself to the states as corporate bodies also had federal colonial antecedents. For many architects of the Articles, it would have been difficult to envision an “individual” who was wholly separable from the community; even for those who looked to the more abstract conception of individual rights, actual liberties and obligations as well as more mundane notions of the individual good were secured in the reality of communities. Accordingly, it often only made sense for government to act upon the community; if the states could be considered communities, then a general government could, in fact, destroy them by circumventing the whole to patronize or punish individuals directly. In the view of many, such had been the experience of the colonial communities in relation to Great Britain. The inadequacies of the Articles and its amendment process suggested the limitations of these views, however. Often, the legislatures represented neither communities nor majority interests; amendments, in view of many critics, often failed because an oligarchic legislature shielded narrow interests at the expense of their states.
For many statesmen, including James Madison, the requirement of unanimity only underscored more serious flaws in the confederacy’s design. In Madison’s view, even unanimous ratification of an amendment by the state legislatures would not change the basic problem that the people might neither secure republican government for their states nor maintain a union of the states, since a violation of the Articles by any state could justify the others in dissolving the entire compact. Only by rethinking the nature of the compact could the “firm league of friendship” described in the Articles develop into a “more perfect Union,” as later envisioned by the U.S. Constitution. When such rethinking occurred in 1787, amendment brought forth a new form of government. What remained, however, was the national compact composed of the Declaration of Independence and the U.S. Constitution. It was the compact basis of the confederation that allowed amendment of the amendment procedure under the Articles, ensured uninterrupted rule of law, and preserved constitutional continuity during a period of revolutionary institutional change.
PROVISIONS OF THE ARTICLES OF CONFEDERATION
The form of institutional relationships formed by the Articles of Confederation reflected its framers’ experiences and expectations of existing colonial agreements. Article I described a confederacy of “The United States of America,” using a phrase that first for the first time in American documentary history. In the Articles, the states entered into their perpetual union, establishing “a firm league of friendship” to “perpetuate mutual friendship and intercourse,” as the preamble and Articles III and IV announce. Such language echoes the description of “a firm and perpetual league of friendship” found in the Articles of Confederation (1643) joining the governments of Massachusetts-bay, New Plymouth, Connecticut, and New Haven as the United Colonies of New England. According to Article II of the 1781 agreement, each state was to retain its “sovereignty, freedom and independence” as well as its powers, rights, and jurisdiction except as it expressly delegated such authority “to the United States, in Congress assembled.” Article V detailed methods of representation (no less than two and no more than seven delegates to be appointed annually according to procedures designed by each state’s legislature), term limits (no member could serve for more than three years in a six-year period), and a “one state, one vote” rule that also drew on colonial practice and early efforts toward a colonywide confederation, including Joseph Galloway’s Plan of Union (1774), the Albany Plan of Union (1754), and William Penn’s Plan of Union (1697). Like many of the existing state constitutions, the Articles called for a weak executive. When in session, a single president, chosen annually by the delegates, presided. When out of session, the executive was a Committee of the States, composed of one delegate from each state. Also as in many colonial and state legislatures, the court was under the direct congressional control. In these and other provisions, colonial experience shaped the Articles. The colonial legislatures had represented the ever-present expectations of local liberty under the charter governments of British North America in counterpoise to the governors who embodied the authority of the Crown. In gaining independence, conditions no longer dictated legislative preeminence, but existing institutions and assumptions prevailed.
In the new institutional environment, which lacked the counterbalancing authority of the Crown, formerly beneficial aspects of the legislatures’ dominance became liabilities. Various flaws in the institutional design represented by Articles VI, VII, VIII, IX, and XII (regarding congressional powers to borrow money, make treaties, raise troops, levy taxes, and regulate commerce) have already been noted. Yet, also within these Articles were several provisions of significant import to the U.S. Constitution as framers sought a new balance among the powers of government as well as the governments of the new nation. Article IV supplied concepts and wording for “full faith and credit” as well as “privileges and immunities” that each free inhabitant would enjoy when traveling or trading across state borders. As a basic expression of federalism, such language indicated that citizenship in the United States exceeded the boundaries of citizenship in a given state. Although the meaning of the Privileges and Immunities Clause was not yet what it would become, the nascent orientation to dual citizenship is to be found in the Articles. Similarly, Article IX suggests the basis for a general court system in which Congress was empowered to adjudicate boundary, jurisdictional, and other disputes between the states. In all, more than half of the provisions and wording of the Articles found their way into the U.S. Constitution, where their authority was given effect by the increase in enforcement powers of the federal government. In 1787, the constitution of a “general government” did not mean a central or unitary government, however; independence from the Crown did not bring about parliamentary government in the American case. The confederal experience had revealed the most basic feature of federation as shared authority. The Articles had captured the conditions of limited, distributed, shared constitutional authority in the critical concept of dual citizenship, with the broader implication that citizens must be directly subject to the laws of Congress as well as the laws of their state legislatures. The result of carrying such provisions into the new constitution was a new institutional form—an extended and compound republic—that lay between the extremes of unitary government and a league of sovereign states.
FEDERAL THEORY AND PRACTICE
The Articles contributed to the theory and practice of federalism in several important ways. The Articles provided the institutional basis for an extended republic. By advancing the compact conception of government, the Articles facilitated an amendment process that eventually produced the compound republic of the multiple local, regional, state, and federal governments comprising modern American federalism. Together, the ideas of an extended and compound republic enabled the union of diverse political associations without destroying the integrity of their existing institutions or their peoples’ identities.
The primary elements of the extended republic are found in Article XI, which enabled the addition of new states to the confederation upon the approval of 9 member states. The potential addition of new states as the equals of the existing confederation members (itself an unusual provision for the times) supplied one condition for a continental republic. The supermajority requirement for approving new state admissions thwarted any expansionist aspirations of the existing states and provided that republican government would be extended by deliberation and negotiation. The Articles make use of various voting rules to achieve legislative ends. Although a simple majority of 7 states sufficed to enact most matters, Article IX listed several serious matters, including declarations of war, treaties, appropriations, that required a majority of 9 states. This supermajority requirement had several effects, including the refinement of legislative proposals so that they would be attractive to at least 3 of the large states and their adjacent, regional constituencies. In this way, the 9-state rule performed much as Madison would later envision representation in the extended republic. In The Federalist No.10, he considered the problems and benefits of small and large republics, concluding that the scope and scale of representation could be designed to refine diverse, contested interests and define their common ground. Elements of such thinking and its institutional expression are already apparent in the Articles. What remained to complete the Madisonian vision was a way for Congress to affect the citizens within the states directly. That institutional transformation turned on the possibility of understanding the Articles as a partial expression of the more fundamental aims set forth in the Declaration of Independence. By interpreting the Articles as part of a compact, these aims were more fully realized in the “amendment” and ratification processes resulting in the U.S. Constitution.
As with every other attempt at amendment, Article XIII appeared to pose an immediate problem to ratification of the new constitution. The Declaration offered a principled way to rethink the basis of union and the amendment process through its doctrine of popular sovereignty. If governments derive “their just powers from the consent of the governed,” as the Declaration said, then it followed that amendments to the Articles must be submitted for ratification to the people of the several states in their capacities as citizens of the states. According the Articles (and a basic supposition of federalism), the people could not vote (or be represented) in an amendment process as the “American People,” taken as a whole, because that would amount to the people of one state amending a document that would change the constitution of another state. To fulfill the conditions of popular sovereignty and federalism simultaneously, the voters within each state would choose delegates who would convene for the sole purpose of deciding whether to ratify the new constitution. Using the tested 9-state supermajority, the process provided that if 9 states approved the new Constitution, it would become binding upon them; other states would be free to join or remain separate from this new union. In this way, membership continued to be based on unanimous consent, constitutional choice remained distinct from ordinary legislation, and popular sovereignty and republicanism were maintained along with federalism as the basic principles of American government. To meet the requirements of the Articles, the framers submitted the proposed constitution to Congress, requesting that Congress send it to the state legislatures who were requested to call a “Convention of Delegates, chosen in each state by the People thereof.” The first step in amending the flaws in the Articles, thus, amounted to amending the amendment procedure to constitute a direct relationship between the general government and the citizens of the several states. The first remedy, thereby, also opened the way for a new relationship between the general government and the people as a whole, completing the initial revolution in American federal theory and practice. This compact enabled a new form of government to emerge from the confederal experience, taking shape as the institutions described by the 1787 U.S. Constitution.
Worthington C. Ford et al., eds. Journals of the Continental Congress, 1774–1789 (Washington, DC, 1904–37); Merrill Jensen, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774–1781 (1940; reprint, Madison: University of Wisconsin Press, 1970); Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988); Vincent Ostrom, The Meaning of American Federalism: Constituting a Self-governing Society (San Francisco: Institute for Contemporary Studies, 1994); and Stephen L. Schechter, ed., Roots of the Republic: American Founding Documents Interpreted (Madison, WI: Madison House Publishers, 1990).