The Articles of Confederation
Before the Constitution, before the Bill of Rights, there were the Articles of Confederation. These articles were drafted shortly after the Declaration of Independence was issued, and ratified by each of the States (Maryland being the last in 1781). The young Confederacy was at war with Britain, attempting to assert their independence from a tyrannical King and government.
Most of us never learned about the Articles, except that it was the predecessor to the Constitution, and that they failed. What do the Articles do and say? A summary:
Article I: The delegates settled on the name of “The United States of America”; for whatever reason, the “style” of the nation was very important to the delegates. This also appeared in early drafts of the Constitution, as well as Charles Pinckney’s notes.
Article II: Each state retains it’s sovereignty, freedoms and independence, as well as rights, powers and jurisdictions not expressly given to Congress. Somewhere between the Articles and the Constitution, the sovereignty of the individual states was replaced by references to the “several states”. Within the Articles, there was no mention of a “national” government, only a league of friendship between states. Sovereignty had to be removed in order to pave the way for a national government.
Article III: The states enter into a league of friendship, and will assist each other if any are attacked for any reason.
Article IV: Free citizens are free to move about from state to state for any reason, and enjoy the privileges of trade and commerce. Fugitives from justice who flee to another state will be extradited if the Governor of the state from which the fugitive fled shall demand it. Full faith and credit extended to each state. The freedom to travel between states was included in the Constitution as part of the Immunities and Privileges Clause in Article IV, as was the fugitive extradition. The key word here is “free”. Vagabonds and paupers, poor people in general, were not considered to be “free” peoples, and were restricted in their movements, as were the slaves.
Article V: States can choose delegates in any manner they choose, and when they must meet, numbers of delegates, and length of service. Each state will have one vote in Congress. Congressional immunity, except in cases of treason, felony or breach of the peace. Freedom of Speech and debate cannot not be held against Congress in a court. Congressional immunity was retained in the Constitution, but the “one state, one vote”, and the requirements for serving as a representative and the selection process was overhauled.
Article VI: Only Congress can make treaties, send ambassadors, or enter alliances. No member of Congress shall accept presents or titles from foreign dignitaries. States can’t enter into alliances between themselves without the consent of Congress. States cannot lay imposts or duties where it might interfere with treaties made by Congress. States can’t keep standing armies, or vessels of war, but must keep equipment for soldiers in public facilities ready to be drawn upon by the state militia. States cannot engage in war with another state or nation without the consent of Congress, unless they have been invaded. Most of this article was included in the Constitution, but the ability to make treaties and enter alliances was transferred to the Executive, with the approval of the Senate. The ability to send, or appoint ambassadors was also transferred to the Executive.
Article VII: When the militia is called up, the state legislature can give ranks to officers up to Colonel.
Article VIII: The common treasury is to be filled via property taxes in each state. The costs for the war are to be paid out of the common treasury. Article VI of the Constitution confirmed the validity of the war debts, and transferred them to the new Confederacy.
The debates over the taxation power were over slaves. The original proposal was that each state was to pay taxes in proportion to the number of people who lived in the state. Virginia had the largest population at that time, including slaves, and would have had to pay the most in taxes, so of course they objected to it. Their argument was that since slaves were property and not people, they should not be included in the census any more than cattle in the north did when it came to setting the tax rate. The irony to this is that when it came time to write the Constitution, they would argue that they should be counted as people for the purposes of representation.
John Adams (Massachusetts) took a different view. He argued that since the slaves helped create wealth in the state, then they should be counted as people. In addition, they had been taken to account for tax purposes in the southern states. He also advocated for giving states votes in proportion to their population.
Benjamin Franklin (Pennsylvania) argued that if the states had equal votes, they should have to pay taxes equally.
Samuel Chase (Maryland) suggested that the states pay taxes in proportion to population, but that the states also receive votes based on that same proportion.
Dr. John Witherspoon (New Jersey) contended that each state should only receive a single vote.
James Wilson (Pennsylvania) was of the same mind as Adams, and brought illustrations to show the dangers of too much sovereignty for the individual states.
In the end, they settled on one state, one vote, and they contributed equally on the question of taxes.
It should be noted that John Adams, Benjamin Franklin, Samuel Chase and James Wilson were signatories to the Articles of Confederation.
Article IX: Only Congress can declare or end wars, send or recall ambassadors. If a conflict arises between the states, Congress is the last resort of resolving the dispute. How Congress will resolve disputes. Only Congress can determine the alloy and value of any coin struck. Congress regulates trade with and all affairs of the Indians. Congress regulates the postal services and appoints general officers above the rank of Colonel. A committee to sit in recess of Congress can pay bills, borrow money and make decisions that don’t require all of Congress to convene. Congress shall never engage in wars, set letters of marque and reprisal (set pirates out) in times of peace unless there is a majority vote of the entire Congress. Power to adjourn, for how long, and to where they shall reconvene. Most of these powers were retained by Congress in the Constitution, except the sending or recalling of ambassadors, which was transferred to the Executive. The resolution of disputes between the states was delegated to the Judicial Branch.
Article X: If Congress is in recess and the committee has not been granted specific recess powers, a committee of any nine states can make decisions in lieu of Congress. This was overhauled in the Constitution as the members of Congress began to realize there were more states that may wish to join the union.
Article XI: Canada can join the Confederation, but no one else, unless 9 states approve it. Canada had no desire to leave the Empire, though the Founders may have wished otherwise. By Canada, the authors of this document meant Quebec.
Article XII: All debts incurred will be considered as debts incurred against the United States, rather than individual states.
Article XIII: All states will abide by the decisions and determinations of Congress. The articles can only be modified by Congress, but EVERY state has to agree to the modifications. The Union is to be perpetual.
The Articles were created at a time when the colonies were at war with Britain, trying to gain their independence. The push for greater cooperation between the colonies had been going on for over 20 years up to the point where they were finally adopted. They were adopted out of necessity, and while they worked for the period of the war, it was very weak as a form of government. Overall, however, it worked. One of the major criticisms of the articles was that there was no judiciary to resolve disputes.
After the war, James Madison suggested delegates get together and discuss ways to improve the Articles. A few delegates met at Annapolis, Maryland and agreed that all of the states’ delegates should meet in 1787 in Philadelphia to discuss how to improvements.
While the delegates were tasked with amending the Articles, they met in secret, closed door meetings and drafted the Constitution.
This is where “Constitutional law professor” of 40 years, Louis Michael Seidman gets it wrong. He claims in his New York Times editorial that the Congress disobeyed the Articles, because they were sent to amend it, not abolish it.
In fact, they did obey the Articles. The Articles specifically state, in Article XIII:
…And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.
I would argue that abolishing something that isn’t working is amending it. Here is the definition of amend:
1. to alter, modify, rephrase, or add to or subtract from by formal procedure
2. to change for the better; improve
3. to remove or correct faults in; rectify
4. to grow or become better by reforming oneself
The Articles of Confederation, which essentially established a wartime government, formed the basis of the Constitution. Once the war was over and peace established, that’s when tensions began to rise.