Articles of Confederation

Overview

The Articles of Confederation are about fifteen pages and can be read in half an hour, which is a good reason to read them rather than read about them. They were drafted by a committee under John Dickinson in 1776, debated and weakened through 1777, agreed by Congress that November, and then sat unratified for over three years because Maryland refused to join until the states with western land claims gave them up. They came into force in March 1781, seven months before Yorktown.

Two things to hold in mind while reading. The first is that this was written during a war against a government the colonists believed had claimed unlimited authority over them, and the drafters’ overriding aim was to make sure the new centre could never do the same. The second is that it is not a constitution in the later sense. It creates no executive, no judiciary and no citizens. It is a treaty among thirteen governments.

The name of the country appears in Article I and it is worth noticing the grammar of the period: the United States are a plural.

The argument

Articles I to III: what this is. A name, a reservation of sovereignty, and a purpose. Article II is the one everything else follows from: each state retains its sovereignty, freedom and independence, and every power not expressly delegated. The word expressly is doing heavy work, and its absence from the Tenth Amendment ten years later was deliberate and much argued about. Article III calls the arrangement a firm league of friendship for common defence and mutual welfare.

Article IV: the beginnings of a nation. Free inhabitants of each state are entitled to the privileges and immunities of free citizens in the others; there is free movement and trade between states; fugitives from justice are to be returned; and the records and judicial proceedings of each state are to be given full faith and credit. These clauses survived into the Constitution nearly intact and are the one part of the document that treats the union as a single society.

Article V: Congress. Each state sends between two and seven delegates, pays them itself, may recall them at any time, and has exactly one vote. Delegates are limited to three years in any six. There is no separate legislature and no upper house; Congress is the whole of the government.

Articles VI to IX: powers, and their limits. The states may not make treaties, keep standing forces in peacetime, or go to war without the consent of Congress, except when actually invaded. Congress has the sole right of war and peace, of sending and receiving ambassadors, of coining money, of regulating Indian affairs, and of establishing post offices. It is the last resort on disputes between states, through an elaborate arbitration procedure in Article IX that is one of the document’s genuine innovations. Nine states of thirteen are required for any important decision.

And then the holes, which are not in what Congress may do but in what it may not. It cannot levy a tax. Article VIII provides that expenses shall be met from a common treasury supplied by the states in proportion to the value of their land, which means Congress may calculate what each state owes and must then ask for it. It cannot regulate commerce, so states taxed each other’s goods and negotiated separately with foreign powers. It cannot compel obedience to a treaty it has ratified, which left the peace treaty with Britain unenforceable in several states and gave Britain its pretext for keeping troops in western forts. And there is no executive to carry anything out and no court to interpret anything.

Articles X to XIII: machinery and the lock. A committee of the states may act when Congress is in recess, Canada is invited to join and any other colony may be admitted by the assent of nine states, the debts already contracted are guaranteed, and the union is declared perpetual. Article XIII requires that any amendment be agreed by Congress and confirmed by every state legislature, which meant that the requisition system could not be fixed: an impost to fund the national debt was proposed twice in the 1780s and defeated first by Rhode Island alone and then by New York alone.

How to read it

Read it straight through, then read the Constitution, and mark what changed. Almost every difference is an answer to a specific failure: taxation that operates on individuals, a commerce power, a supremacy clause, an executive, a judiciary, two chambers, and an amendment rule that does not require unanimity.

Read Article II and Article VIII together. The first states the principle and the second shows what it cost in practice.

Then read a few numbers of the Federalist, particularly 15 through 22, where Hamilton goes through the defects of the confederation one at a time. His central charge, that legislating for states rather than for individuals is the great and radical vice, is the clearest statement of what is wrong with this document.

Know what happened in 1786 and 1787. Farmers in western Massachusetts, in debt and facing foreclosure, shut the courts and marched on the federal arsenal at Springfield, and Congress had no money to raise troops and no authority to intervene; the rebellion was put down by a privately funded militia. Shays’ Rebellion did more than any argument to produce the Philadelphia Convention.

Resist the conclusion that the drafters were naive. They were building a wartime alliance among thirteen governments that had just fought a revolution against centralised power, several of which regarded themselves as countries. That the result could not function is the interesting fact; that they wanted it weak is not a mystery.

Questions it raises

• Could the Articles have been repaired? Two amendments to allow an impost failed by one state each time. Was the problem the design or the unanimity rule that protected it?
• Congress legislated for states rather than for people. Hamilton called that the radical vice. Is it, or is it simply what a confederation is?
• The states are declared sovereign and the union perpetual. Can both be true, and did the Civil War settle the question or only decide it?
• The document creates no executive and no court. What did the drafters expect to happen when a state ignored a decision?
• Article IV creates something close to national citizenship in a document that otherwise refuses to. Why that exception?
• The Constitution was drafted by a convention called to revise the Articles, which then ignored its mandate and wrote a new document ratified by conventions rather than legislatures, in defiance of Article XIII. Was the founding legal?