The Constitutional Convention has adjourned for eleven days while the Committee of Detail organizes the approved propositions into a draft constitution to be presented on August 6. The Convention having been called to revise and improve the Articles of Confederation, it is appropriate for us to review the Articles, their origins, and defects to have a more complete understanding of the task facing the men who have gathered here in Philadelphia for that purpose.
Among the most revered of iconic American statements is Richard Henry Lee’s resolution of June 7, 1776 “that these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.” Less well-known is the remainder of the resolution declaring “that it is expedient forthwith to take the most effectual measures for forming foreign Alliances; that a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.”
On June 11, a committee of five was appointed to draft a declaration of independence. Two other committees were also created: one to draft a template for treaties with other nations, and one to draft “a plan of confederation.” The second committee was composed of one representative from each colony. A month later, under the leadership of John Dickenson, the committee reported its first draft. After four weeks of debate, a revised draft was presented, but by the end of the year, British troops were closing in on Philadelphia, forcing Congress to abandon the city and flee to safer quarters near Baltimore. On December 20, it reconvened at the home and tavern of Henry Fife, described as “a three-story and attic brick house of about 92 feet on Market Street, with a cellar under the whole.” It had fourteen rooms, not counting the kitchen and other service buildings. For two months, until February 22, 1777 Henry Fife’s six-year old tavern became the new nation’s second capital. There Congress continued its deliberations on the Articles of Confederation and other critical matters and received encouraging news that Washington had crossed the Delaware and scored surprise victories at Trenton and Princeton. The British threat to Philadelphia blunted, Congress reconvened in the Philadelphia State House on March 4.
At last, in November 1777, Congress approved the Articles and sent them to the States for ratification. By then, Congress had moved again, to Lancaster, then to the courthouse in York, Pennsylvania, as the British occupied Philadelphia and Washington’s troops encamped for the bitterly harsh winter at Valley Forge. Actual signing of the Articles was delayed until July 9, 1778. Congress had just returned to Philadelphia when delegates from New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Virginia, and South Carolina signed. North Carolina and Georgia were not in attendance and the remaining delegates were unable to sign because their respective states had not yet ratified the Articles. Unanimous consent was required before they could go into effect.
Maryland held out for more than a year, until February 2, 1781 before agreeing to sign, but she was not alone in her hesitation. New Jersey had waited until November 1778 and Delaware did not ratify until February 1779. Their major concern was the disposition of western lands. Only after Virginia relinquished its claims on lands north of the Ohio River to Congress on January 2, 1781 did Maryland finally ratify, exactly one month later.
After declaring independence, the States had begun to draft new constitutions that would protect their liberties and limit powers of the executive. It had been the executive, in the person of the British King and his colonial governors, that had infringed on the rights of Americans as well as on the legislative and judiciary branches. “The executive” needed to be curtailed. Consequently, the Articles do not provide for an independent executive.
The Articles of Confederation are composed of a preamble, thirteen articles, and a conclusion, designed to form “a firm league of friendship and perpetual union” of thirteen States. The union is styled “the United States of America,” under which “each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not expressly delegated to the United States in Congress assembled.”
The Articles established a unicameral legislature made up of representatives from each State. Although each State may appoint from two to seven representatives, each State has only one vote in Congress. Nine States are required to pass laws, while amendments to the Articles require a unanimous vote. The powers of Congress are limited. Although it has the “sole and exclusive power” to declare war, make treaties with foreign nations, and settling disputes between States, it does not have the power to enforce its treaties or laws, the power to tax, or to regulate foreign and interstate commerce. The executive is simply the President of the Congress with no authority. The Confederation also lacks a judiciary.
A government with no power is not a government. Within two years of ratification of the Articles, Thomas Jefferson complained of the impotency of the national Congress. “We have done nothing to enable them to enforce their decisions. What will be the case? They will not be enforced. The States will go to war with each other,” he declared.
The weaknesses of the Articles are apparent to all, but also apparent are the issues that divided the States in 1776 and continue to do so in 1787. The small States insisted on equality in the councils of government. Maryland’s Samuel Chase had observed “the larger colonies threatened they would not confederate at all if their weight should not be equal to the number of people they added to the confederacy, while the smaller ones declared against a majority if they did not retain an equal vote.” They haggled over how to count the population and whether slaves should be considered people or property; if as people, should they be counted completely or as three-fifths? Would slavery actually prevent union?
Perhaps the greatest deficiency in the Articles is its lack of foundation in “the people.” The Confederation is a league of States, each with its own powers to collect taxes, issue currency, provide for its own militia, and more. Even now, States continue to guard that sovereignty. The issue today is the same as in 1776, as James Madison so aptly summarized twelve days ago when he asked, “Can we forget for whom we are forming a government? Is it for men, or for the imaginary beings called States?”