THE ARTICLES OF CONFEDERATION AND THE CONSTITUTION

R. B. Bernstein,
Daniel M. Lyons Visiting Professor in American History, Brooklyn College/CUNY (1997-1998),
and Adjunct Professor, New York Law School

Just as it took time and painful political experimentation for the colonists to break with Great Britain and embrace independence, so, too, it took time for Americans to think of themselves as (in Alexander Hamilton's words in The Federalist No. 85) "a nation without a national government" -- something he decried as "an awful spectacle" -- and take steps to remedy that defect. Again, as with independence, there were no guarantees undergirding this process of national development; the outcomes were neither assured nor foreordained. Rather, the Americans had to do some heavy political lifting to prepare the political ground for reform of their government, and some heavy intellectual and theoretical lifting as well to devise the mechanisms and institutions that they felt ought to be put into place as a new national constitution.

I. THE ARTICLES OF CONFEDERATION

In the 1770s, as the Americans moved toward independence and began to lay the groundwork for state constitution-making, they tried, but more hesitantly and nervously, to do the same at the national level. Few were ready for a unified national government. Most distrusted centralized government, both because they associated it with the failure of the British colonial empire and because of a theoretical and ideological context that we have to address: that of republicanism.

What does republicanism mean? Americans wanted republican government, which in its simplest terms meant no kings, no hereditary nobility. Under republican forms of government, the people would be the ultimate source of power and legitimacy in the polity, the ultimate source of political authority -- whether exercising that power directly (highly unlikely) or through representatives they elected directly (or, in some cases, indirectly). But all the accumulated wisdom of human history in the Atlantic Civilization taught that a republic could work only with a small population in a small territory. Each of the American states was at the outside limit of territorial and population size for a republic to have a chance of surviving external and internal threats to its existence. This is the intellectual context in which the Second Continental Congress tried constitution-making for an American nation.

In the summer of 1776, at the same time that the Second Continental Congress adopted the resolution authorizing American independence and the framing of the Declaration of Independence, they adopted two other resolutions offered by Richard Henry Lee at the same time that he proposed the famous one for independence: the first authorized the opening of negotiations for military and commercial alliances with European powers such as France and Spain, and the second authorized the framing of "articles of confederation and perpetual union." The first draft of what became the Articles of Confederation was prepared by the noted constitutional thinker and lawyer John Dickinson of Pennsylvania. Because other delegates objected that his draft vested too much power in Congress, they subjected it to more than a year of redrafting and watering down. On 15 November 1777, the Continental Congress sent the finished draft to the states. It took nearly four years for the Articles to win the support of all thirteen states; during that time, the Continental Congress did business under the Articles, hoping that the document would be ratified. On 1 March 1781, Maryland ratified the Articles; as the last of the thirteen states to act, it put the Articles into effect.

The Articles created a one-house Confederation Congress; each state delegation had one vote. On most matters, a majority vote was needed; on certain key matters, such as treaties, a two-thirds vote was needed; Article 13 required consent (ratification) by all thirteen states to any proposed amendment of the Articles. At the core of the Articles was the enduring conflict between a perpetual union and state sovereignty, never clearly resolved. The Confederation had no independent executive or judiciary, no federal power of taxation or raising revenue, no federal power to operate directly on individual citizens. The Confederation had to depend on the willingness of the states to comply with congressional requisitions, and the willingness of the state governments to enforce measures to secure American interests.

As time went on and the delegates realized that they needed to flesh out the administrative structure of the Confederation, Congress created independent executive departments (War, Finance, Foreign Affairs) and a court (the Court of Appeals in Cases of Capture). Were these ad hoc institutions unconstitutional? Probably -- but, fortunately, nobody challenged them. And if they had? The obvious course would have been to amend the Articles to authorize such institutions -- but Article 13 would have made it impossible, for none of the four or five attempts to amend the Articles between 1781 and 1787 got the consent of all thirteen states. One state -- Rhode Island -- blocked every attempt (in 1783 Rhode Island's dissent then encouraged localists in Virginia to reverse the state's position).

How was the Confederation to be financed? Because the Confederation Congress had no independent taxing power, it therefore depended on contributions made by the several states -- and on loans negotiated by American diplomats abroad. The states were to levy and collect taxes for the benefit of the Confederation and to remit the moneys collected to the Confederation; each state's share of the burden of raising money for the Confederation was based on the value of its land. Why did they do it this way, when we would expect that it might not work well, if at all? First, we must remember that the Americans of the 1770s were nervous about a powerful central government, especially nervous about a government with a real taxing power; they had just launched a revolution against one such government and were leery of trusting another, even one of their own devising. Second, we must remember that the Americans who framed the Articles were caught up in the fervor of the Revolution and believed that the people's and politicians' general faith in the glorious cause would be enough to prompt the states to do what they were asked to do.

II. EVALUATING THE CONFEDERATION

For more than 150 years, the conventional wisdom deemed the Articles of Confederation to be a total failure. Nothing good ever came of them, and as soon as they could be replaced they were. Not until 1940, really, did the great historian Merrill Jensen -- in his first book, The Articles of Confederation (1940) -- set out to redeem the Articles from the strictures of the conventional wisdom. His work launched a creative argument among historians about the achievements and failings of government under the Confederation. Today, we have a clear-eyed view of the strengths and weaknesses of the Articles and of the achievements of the government under the Articles as well as its drawbacks.

We can lump the achievements of the Confederation into two major categories -- foreign and domestic.

FOREIGN:

Under the authority of the Confederation, the United States established its place in the community of nations -- first, by establishing diplomatic relations with foreign nations (the Netherlands, France, Morocco, Prussia, Spain, Russia, etc.); second, by borrowing money from international lenders (establishing America's place as a participant in the world economy); third, by fielding a Continental Army and winning the war; fourth, by negotiating the Treaty of Paris (1783) under which Britain recognized American independence and sovereignty and ceded all territory between the Allegheny Mountains and the Mississippi River to the United States; and fifth, by fielding a brilliant array of American diplomats who continued to represent the new nation on the stage of power politics.

DOMESTIC:

The most important domestic achievements of the Confederation were (i) the resolution of the conflicting claims of landed and landless states and (ii) the establishment of a system of territorial governance under federal authority.

The colonial charters were notoriously sloppy about boundaries and claims. Some states' claims extended across the North American continent to the Pacific Ocean. Others found that their land claims overlapped, and engaged in sharp, bitter disputes over these rival claims. Landed states seemed to have the capacity to make windfall profits by selling their lands to investors and settlers; the landless states resented this, and argued that the Union should benefit from this windfall. The obvious solution was for the landed states to cede their claims to the United States; but it took until 1781 for this to happen; landless states (such as Maryland) withheld their assent from the Articles of Confederation in an attempt to force landed states (such as Virginia) to make the cession.

How to govern these lands? The Northwest Ordinance of 1787 was the last and most important of three territorial ordinances adopted (1784, 1785, 1787) by the Confederation Congress to establish a procedure for governing the new territories acquired from Britain. Basic principle: these territories would not be colonies but instead were to be organized into prospective states, each of which when admitted to the Union would have full and equal status with the original thirteen states. As a result, the Americans apparently solved the problem of colonialism. Further, in the region north of the Ohio River (the Northwest Territory) slavery would not be permitted to take root; further, there would be systems for organizing local government, townships and counties, and for providing for public education.

Despite these achievements, the Articles had fundamental weaknesses that threatened the existence of the United States. Moreover, despite the general successes of state constitution- making, state economic and political problems (which the Confederation was powerless to resolve or to control) threatened the political stability of the American experiments in government.

FOREIGN:

(i) The Treaty of Paris contained a pledge by the Americans to honor debts owed to British or Loyalist creditors and to refrain from adopting laws that would impede creditors' recovery of just claims. But the states ignored this promise (for example, in the litigation that led to the case of Rutgers v. Waddington [N.Y.C. Mayor's Court, 1784]). For these reasons, the British refused to withdraw their forces from the western territories.

(ii) Britain, France, and Spain imposed limits on trade with the new nation -- and the new nation was powerless to retaliate or to force the lifting of these limits.

(iii) Spain controlled the lower Mississippi, strangling American settlements in that area -- unless the Americans swore allegiance to Spain. The United States could not do anything about this. Indeed, in the summer of 1786, the Spanish minister to the United States, Don Diego de Gardoqui, offered the Confederation's Secretary for Foreign Affairs, John Jay, a deal by which the United States would receive a commercial treaty with Spain in exchange for giving up its claims to free navigation of the Mississippi. Jay believed that this deal was the best that the United States could get, and that future population growth would force the Spanish to give in on access to the Mississippi -- but the delegates of the five southern states voted to reject the plan, ensuring that they would be able to block any Spanish-American treaty negotiated on that basis,

NATIONAL

(i) States rarely paid their requisitions fully and almost never did so on time. Some states -- for example, Georgia -- never paid at all. The Confederation was powerless to satisfy the war debt the United States had run up during the Revolution, or to compel the states to pay what they had pledged to pay to the Confederation.

(ii) States repeatedly violated treaties with Indian nations, and the Confederation was powerless to prevent or punish those violations.

(iii) States regularly failed to send delegates to Congress; thus, there were times when the Congress lacked even a quorum.

(iv) the Confederation could not even secure an amendment to the Articles to permit the Confederation Congress to levy a simple five percent tax on imports.

STATES:

(i) States sought to solve their economic difficulties by disputing boundaries, arguing over fishing rights, waging trade wars against one another, and imposing tariffs on goods imported across state boundaries. As James Madison observed, New Jersey, between New York and Pennsylvania, was like a cask tapped at both ends; North Carolina, between Virginia and South Carolina, was like a patient bleeding at both arms.

(ii) Secessionist movements: In each of four states -- New York, Virginia, Massachusetts, and North Carolina, settlers in distant regions sought to break free and set up their own independent states. Virginia had little trouble reining in the settlers of Kentucky, and Massachusetts managed to preserve its authority over the district of Maine. In North Carolina, however, the state government strove to subdue the would-be state of Franklin, and New York struggled for fourteen years (until 1791) to bring back under its control the "independent republic of Vermont." Even though New York, in particular, demanded action by the Confederation Congress to vindicate its authority over the rebellious Vermonters, nervous delegates from other states declined, not wanting to set inconvenient precedents cutting one way or the other.

(iii) Many states were convulsed by political turmoil over the respective rights and responsibilities of debtors and creditors. The economic downturn of the mid-1780s and the always difficult lives of farmers, who could be ruined by just one bad harvest, made relations between debtors and creditors a fertile source of controversy. In such states as Rhode Island, debtor and creditor parties struggled to control the state government in annual elections; these battles often resulted in rapidly-changing state laws that hobbled interstate commerce and seemed to nervous creditors to assail the rights of private property. For example, debtors in many states demanded -- and in some states achieved -- the enactment of paper-money laws, that would spur inflation so as to help debtors more easily satisfy their creditors. The resulting inflation, however, injured not only creditors but the value of the states' paper money and the stability of interstate economic transactions. Some creditors refused to accept inflated paper money; in response, states such as Rhode Island enacted "tender laws" under which a citizen-debtor could require his creditor, whether a fellow citizen of the state or a citizen of another state or foreign nation, to accept the paper money as the sole means of paying the debt.

(iv) In those states where debtors could not secure relief for their plight through the ordinary processes of politics, they sometimes took arms to defend their homes and families against what they deemed to be cruel and heartless creditors and an indifferent judicial system. The most famous of these debtor's rebellions was Shays's Rebellion, which focused on western Massachusetts. It was not just limited to western Massachusetts, however, nor was it just a simple riot of people who sought to avoid paying just debts. Outbreaks of debtor violence associated with Shays's Rebellion ranged from Vermont to Virginia; by some estimates, one-fourth of the armed men of New England took part in Shays's Rebellion. Shays himself had been a valiant captain in the Continental Army, but he also was a debt-ridden farmer who struggled to keep a roof over his family's head. He was more a symbol of revolt than an actual leader. Ultimately, in the winter of 1787, Massachusetts authorities put down Shays's Rebellion by force, but its lessons and its warnings lingered.

III. THE ROAD TO THE CONSTITUTION

Thus, for all these reasons, in the mid-1780s Americans who thought in national terms determined to find and give effect to a constitutional solution for the diseases plaguing the Confederation. They thus paralleled the process of intrastate, interstate, and then coordinated national organization that created the revolutionary movement between 1765 and 1776. The key markers -- that is, the major interstate gatherings in this process, are as follows:

* 1785: Mount Vernon Conference -- a meeting of delegates from Virginia and Maryland to work out boundary disputes, navigation rights, etc.

* 1786: Annapolis Convention -- a meeting of delegates from Virginia, New York, Delaware, Pennsylvania, and New Jersey that was supposed to solve national commercial problems but instead, after lack of attendance nearly derailed it, redefined the agenda of American politics by calling for a general convention "to render the constitution of government adequate to the exigencies of the Union."

* 1787: Federal Convention -- the culmination of the interstate movement for national constitutional reform, attracting delegates from every state except Rhode Island.

The Annapolis Convention issued a sweeping mandate (to render the constitution of government adequate to the exigencies of the Union) in September of 1786; on 21 February 1787, when the Confederation Congress endorsed the call for the Federal Convention, its more circumscribed resolution clashed with the Annapolis formula. The resolution adopted by the Confederation Congress was needed to provide a warrant for the Convention, but the delegates to the Federal Convention found themselves saddled with a divided and inconsistent mandate, and before anything else had to resolve that confusion.

IV. THE FEDERAL CONVENTION

Twelve of the thirteen states named a total of 74 delegates, only 55 of whom actually showed up at one time or another. John Adams was not there (he was American Minister to Great Britain); Thomas Jefferson was not there (he was American Minister to France); John Jay was not there (he was the Confederation's Secretary for Foreign Affairs in New York City); and Patrick Henry -- though chosen -- was not there (he was uninterested in national politics at the time, although he later claimed, "I smelt a rat").

Five kinds of delegates did attend the Federal Convention:

First, there were the national heroes, George Washington and Benjamin Franklin, whose mere presence at the Convention bestowed on it the gift of their prestige. Their association with the Convention and its work meant that the American people would probably be willing to give anything the Convention proposed at least a fair hearing; if they walked out, their departure would doom anything the Convention suggested.

Second, there was a small and vigorous group of theorists of government -- such men as James Madison of Virginia, James Wilson of Pennsylvania, Alexander Hamilton of New York, and Charles Pinckney of South Carolina. These men brought the ideas that the Convention would use as raw materials in fashioning its proposals.

Third, there were the elder statesmen of American public life -- such men as George Mason of Virginia, William Livingston of New Jersey, John Dickinson (now of Delaware), and Roger Sherman of Connecticut. These men brought their experience and detailed knowledge of the realities of American politics at both national and state levels; their collective experience and knowledge formed the first of two vital reality checks on the Convention's deliberations.

Fourth, there were the spokesmen for state and local interests -- such men as William Paterson of New Jersey, John Rutledge and Charles Cotesworth Pinckney of South Carolina, Luther Martin of Maryland, and Edmund Randolph of Virginia. These men reminded their colleagues of the interests of the several states and of the challenges of accommodating local and state interests in an American constitutional system; they thus formed the second vital reality check on the Convention's deliberations.

Finally, there were the quiet delegates -- such men as Jared Ingersoll of Pennsylvania, John Blair of Virginia, and Jacob Broome of Delaware. Although most Americans have never heard of these men, they formed a small majority of the delegates assembled in Philadelphia. They brought themselves, their votes, which formed the raw material for consensus and compromise.

As we study what the delegates to the Federal Convention did between May and September of 1787, we wrestle with the often fragmentary and frustrating evidence that they left of what they thought, said, and did. We have drafts of plans, memoranda, midway drafts. We have notes of debates taken under extremely difficult conditions, by several delegates.

We do not have exact, verbatim transcripts detailing comprehensively what the Framers intended, for three reasons. First, the technology of the time did not permit such a record to be made. (Even James Madison's notes, the greatest achievement of parliamentary reporting of the age, captured at best about 10% of what was said in that room.) Second, they themselves did not know what they intended to do in a clear and comprehensive and fully articulable fashion, even once the Convention had ended. Third, it is far from clear that the Framers intended their direct, personal expressions of intent (even if ascertainable and articulated) to be unequivocally binding.

Historians have struggled to understand just what the Convention did and in what stages it did it. The following sketch marks out the major stages of what the delegates did and when.

From 25 May through 28 May, the delegates elected officers (their President, George Washington, and their formal secretary, Maj. William Jackson of Georgia) and adopted rules governing their deliberations.

From 29 May, when Edmund Randolph of Virginia proposed the resolutions known as the Virginia Plan up to 14 June, the large-state delegates prevailed on virtually every issue in devising a constitution for a new American nation.

Beginning on 15 June, the small-state delegates counterattacked, proposing the New Jersey Plan offered by William Paterson. By 19 June, the delegates had rejected that plan and reaffirmed their support for the Virginia Plan, but that short-lived victory set the stage for a full-blown conflict between the large-state delegates and the small-state delegates over the issue of representation in the new Congress of the United States.

The conflict between large-state and small-state delegates lasted from 19 June through 16 July, when the Convention finally agreed on what later historians have called the Connecticut or Great Compromise. Under this formula, the House of Representatives would be apportioned on the basis of each state's population, and each state would have an equal vote in the Senate.

For the next nine days, 19-26 July, the delegates marched through the rest of the plan under adoption, tinkering here and adjusting there, leaving the business in the hands of a Committee of Detail. Edmund Randolph was assigned to prepare the first draft of what was already being called a Constitution for the United States, and drew on the advice and guidance of, among others, James Wilson. The Convention then recessed for a week.

Reconvening on 6 August, the delegates struggled to resolve problematic gaps in the emerging constitutional framework. An aid to their labors was the so-called Committee on Postponed Matters, which devised among other things the formula for the electoral college for electing the President and Vice President. The delegates in late August also agreed on a series of compromises that would appease the delegates from the slave states, notably South Carolina; for twenty years, the federal government would have no power to interfere with the trans-Atlantic slave trade, and each state would count three-fifths of its slaves along with its free inhabitants for purposes of determining representation in the House and proportionate shares of tax burdens.

From 10 September to 12 September, another notable committee, the Committee on Style and Arrangement (which in turn delegated the task to Gouverneur Morris of Pennsylvania), prepared the second and nearly-finished draft of the Constitution. Then, from 12 September to 17 September, the delegates moved through the final stage of review and revision; among the decisions they made in this stage was that, on 15 September, not to add a declaration or bill of rights to the proposed Constitution. On 17 September, thirty-seven of the forty men present voted to adopt and sign the Constitution (George Read also signed John Dickinson's name, for the elderly Delaware delegate had departed, exhausted, the weekend before) and adjourned after voting to send their handiwork to the Confederation Congress in New York City.

The Convention worked in the following fashion -- they first met in formal debate, and then adjourned to meet as the Committee of the Whole House (a parliamentary device permitting more informal debate and greater flexibility in decision-making). In this informal stage, the delegates would air their views and argue about how to solve the problems facing them; they also would propose resolutions, which then became the focus of clause-by-clause debate. They then would "report their progress" to the full Convention, which then would go through another cycle of clause-by-clause debate. If needed, the Convention would appoint a committee to resolve thorny questions postponed in the principal debate; then the Convention would appoint another committee to prepare a draft report summing up the work they had done to date, and that report would become the basis for the next stage of deliberations.

These men did not get their way. Time and time again, they were called to account, whether by senior statesmen who warned them that they were going too far and too fast for their colleagues, or by localist politicians demanding fairness for the small states, or by the architects of compromise. Nothing is more fatal to theoretical purity than the spirit of compromise. There took place at the Convention a deep, profoundly important shift -- from devising the best Constitution that theory could support to devising the best one that had a chance of being adopted.

What kind of document did this process produce? The Constitution creates a separate government, of three branches, with a limited but expansive grant of power and ability to operate directly on individual citizens:

The House of Representatives represents the people.

The Senate represents the states.

The President is indirectly elected by an electoral college which mixes together national and federal elements; his powers, largely undefined, reflect the influence of the good example of George Washington (whom most Americans expected would become the first President) and the bad example of George III.

The structure of the Supreme Court and the lower federal courts was left to be shaped by whatever judiciary statute would be enacted by Congress.

The Constitution also included compromises over slavery -- the most famous being the three-fifths clause, the fugitive slave clause, and the slave trade clause. It should be noted as well, however, that the words slavery or slave appear nowhere in the document, reflecting the hopes of the framers that the institution somehow would die out without obligating the politicians of the new nation to take deliberate and potentially suicidal steps to abolish it.

The Constitution also included an amending process that was easier to work than the cumbersome Article 13 of the Articles of Confederation, yet one that would require action by both the general government (Congress) and the state legislatures.

One other important feature of the Constitution was the clause of Article VI making it the supreme law of the land; this Supremacy Clause not only made the Constitution a fundamental law, but in turn empowered federal courts to interpret it as part of their constitutional duties.

Finally, because of fatigue and the impatient conviction, as Roger Sherman put it, that such a provision would be "unnecessary," the proposed Constitution lacked a bill of rights.

As the delegates wended their way home from Philadelphia, many of them read over the full text of the proposed Constitution with care and attention for the first time. Would this document be adopted? What would happen now?

Related Topics

THE ARTICLES OF CONFEDERATION AND THE CONSTITUTION

R. B. Bernstein, Daniel M. Lyons Visiting Professor in American History, Brooklyn College/CUNY (1997-1998), and Adjunct Professor, New York Law School

R. B. Bernstein,
Daniel M. Lyons Visiting Professor in American History, Brooklyn College/CUNY (1997-1998),
and Adjunct Professor, New York Law School