Articles of Confederation, Part I: Context

            I should hope that by this point the regular audience of this program has developed some understanding of what the Articles of Confederation and Perpetual Union were and why they are significant to a discussion of the American Founding. For those who may have forgotten, however, or who are just joining us now, they were in effect the first constitution of the American republic, forged in wartime and rendered obsolete by the drafting and ratification of the Constitution of the United States in 1787-88. Compared to that later document – still in force after over two hundred years – the Articles formed a fairly meagre national government whereby the individual states retained nearly all of their accustomed autonomy and Congress acted more as a chamber of debate than a sovereign legislature on the level of the contemporary British Parliament. Much has been written in these pages of the weakness of the Articles, the inability of the resulting government to maintain the cooperation of the various states, and consequently of the issues that arose among America’s ambassadors abroad in securing much-needed trade agreements without any guarantee that they would be honored at home. Indeed, the chief importance of the Articles of Confederation in most histories of the American Founding is that their failings made it necessary to create another, more activist national government whose balance of authority, restraint, energy, and reflection has since – and most emphatically – stood the test of time.

            There is, of course, far more to the Articles than just their shortcomings. While they may not have possessed the proper elements in the proper ratio to effectively bind together the various states during the economically tumultuous post-war era – when debt was rampant, hard currency was scarce, and runaway populism often held sway – they undeniably succeeded in seeing the United States through the bloodshed and privation of the Revolutionary War. Granted, the presence of a common enemy in Britain doubtless did much to engender a sense of solidarity among the often fractious and unruly states. In consequence, while the Articles may indeed have possessed some quality which enabled them to hold what were in effect thirteen independent republics together amidst an extensive military conflict with one of the most powerful empires in the 18^th century world, their true significance almost certainly lies elsewhere. Indeed, it may have much more to do with what they represent than what they ever managed to accomplish. Consider, to that end, how and why the Articles came to be. The men who drafted, debated, approved, and ratified them were attempting to erect a national government for what had theretofore been thirteen separate British colonies, each with their own political customs and administrative norms. Furthermore, they were undertaking this task while confronting an empire whose centralizing tendencies formed the very seed of American independence. The results of their efforts, therefore, were surely the product of any number of compromises, ambitions, anxieties, and hopes whereby one might arguably be able to chart the ideological ideal of the Founding Generation as it existed at the height of the American Revolution. A more intriguing prospect would seem difficult to conceive.

            Before delving into any of that, of course, a few words ought to be said about the specific context from which the Articles emerged. First, unlike the Constitution, the Articles were not the product of a convention called to order outside the auspices of the Continental Congress for the express purpose of crafting a frame of government for the United States of America. Rather, they were drafted by a committee formed and delegated by Congress on June 12^th, 1776 to prepare a plan of union of the soon-to-be independent states. John Dickinson (1732-1808), delegate from Pennsylvania, was made chairman of this body, which presented its first completed draft to Congress proper on July 12^th. A fairly lengthy debate followed, resulting in any number of revisions and which concluded with a final draft in the summer of 1777. Congress subsequently debated this version further, voted to approve it on November 15^th, and submitted it to the states for ratification. This process, for the most part, proceeded swiftly. Virginia was the first, on December 16^th, 1777, followed by South Carolina, New York, Connecticut, Rhode Island, and Georgia the following February, New Hampshire, Pennsylvania, and Massachusetts in March, North Carolina in April, New Jersey in November, and Delaware in February, 1779. In spite of this fairly rapid progress, however – particularly impressive in light of the fact that these same states were actively fighting off a military invasion – the Articles did not officially take effect until February 2^nd, 1781.

There were, in essence, two reasons for this. On one hand, the Articles themselves dictated that ratification would not be deemed successful unless or until all thirteen states voted in the affirmative. Doubtless intended as a concession to the sovereignty of said states – thus preventing those that had not yet approved or had disapproved from being either carried along by the majority or left out of the resulting federation – this decision on the part of the framers of the Articles had the unfortunate effect of allowing a single state to indefinitely postpone the formal establishment of a national government until all of its demands were met. Maryland, as it happened, was that state. Dissatisfied with the claims made by certain of its counterparts – Virginia and New York chief among them – to large swaths of territory in what is now the Midwest, the contemporary government of Maryland maintained that it would not approve a closer union of the states until all parties agreed to cede any lands they held west of the Ohio River to the proposed national government. After holding out for over three years from the time of the approval of the Articles by Congress, and exacting a number of promises from its brethren, Annapolis finally permitted its delegates to affix their names to the document in question in the second month of 1781, thus finally and firmly confirming the legitimacy of the first national government of the United States of America.

While, in practice, this made little effective difference to the manner in which Congress functioned – in spite of Maryland’s stubbornness, the United States operated from 1777-78 as though the Articles had been ratified – that this kind of situation was allowed to arise at all was quite telling. Whereas the Constitution was deemed by its framers to take effect once nine of thirteen states had submitted their approval, and while the national government that resulted likewise pivoted upon the primacy of the majority – be it simple or super – the Articles were conversely structured around the notion that consensus was the only means by which the most important decisions could claim legitimacy. While this was certainly a noble sentiment, the fact that it was fairly quickly cast aside speaks powerfully to both the optimism and the inexperience with which the Articles were crafted. Not only was unanimity required for the new government to be formed, but it was also a necessary ingredient for almost any major policy or initiative that Congress would care to pursue. While the Articles did permit the national government to make financial or military requisitions of the states, for example, these were effectively only requests that the states could freely refuse to honor. As such consensus of opinion was rarely in evidence during the life of the Articles (1777-1789), Congress most often found itself cash-strapped and manifestly unable to provide the Continental Army with the manpower it so desperately needed.

Unfortunately, any attempt to alter this state of affairs by modifying the Articles – so that, for example, the states were bound by law to respect Congressional levies – would have run up against this same basic issue. Just as the approval of all thirteen states was necessary for the Articles themselves to come into force, so was the unanimous approval of every state legislature required for any amendment to achieve the same. By thus exalting consensus to the point of enshrining it as the core value of the government they aimed to create, the framers of the Articles thus crafted a cage around said government, built of their own best intentions and permitting only the most limited movement for its unfortunate inhabitants. Granted, this state of affairs was very much in keeping with the circumstances from which the Articles emerged. Not only were the individuals responsible for drafting, debating, and approving the relevant plan of government almost wholly lacking any practical experience in the realm of law, statecraft, and public affairs that they were about to enter, but the object to which they were ostensibly dedicating their efforts – the United States of America – was as yet something of an abstract and untested concept.

Certainly, the various colonies which preceded the states were possessed of written charters that provided detailed descriptions of the administration thereof, though nearly all of them had been drafted and approved long before the lifetimes of any delegate to Congress circa 1776-77. In consequence, while the authors of the Articles were better equipped than, say, the average inhabitant of Great Britain to understand the form and function of a written constitution, they almost certainly lacked any applied knowledge as to how such things were constructed. Just so, while the fact that the various colonies had successfully coordinated a series of responses to one piece of British legislation after another – the Stamp Act (1765), the Townshend Duties (1767), the Tea Act (1773), the Coercive Acts (1774) – and subsequently cooperated in overseeing Patriot efforts during the opening phase of the Revolutionary War, the notion of binding the thirteen states together in any substantial, permanent way remained something of a novel prospect. Benjamin Franklin (1706-1790), at a meeting of delegates from the various colonies convened in Albany in 1754 at the outset of the Seven Years War (1754-1763), had notably proposed a “Plan of Union” that would have created a kind of American federation within the larger British Empire, though the proposition met with little success. A similar bid submitted to the first Continental Congress in October, 1774 by Pennsylvania delegate Joseph Galloway (1731-1803) was likewise rejected, and along similar lines. Cooperation among the various colonies became increasingly common beginning in the 1750s, and there was certainly something to the notion that being “American” somehow set one apart from being “British.” But the traditions, priorities, resentments, and ambitions of said colonies remained powerful impediments to the success of any proposal that even appeared to threaten their sovereignty.

This state of affairs understandably left the delegates to Congress responsible for crafting a frame of government for the United States of America over the course of 1776-77 in a somewhat awkward position. Not only had they taken on a task for which none of them were particularly well-equipped, but their central objective required a feat of imagination for which few practical examples then existed. Of course the inhabitants of British America were familiar with the concept and characteristics of a national legislature, Parliament serving as a venerable and well-established model. But their aim was not – could not have been – to simply replicate Parliament in an American context. Great Britain was – and continues to be, in large part – a unitary state. The legislature thereof has accordingly functioned without much, if any, concern for the existence of strong sub-national entities like states or provinces. Parliament represents the people of Great Britain, via the mechanism of free and frequent elections, and it accordingly makes law for Great Britain. America, however, could never admit so simple an arrangement. The very crux of the Anglo-American crisis had been the failure of Parliament and the Crown to recognize the sovereignty of both the American people and the colonies to which they identified as citizens. Any American equivalent of Parliament, therefore, by necessity must have pursued the opposite tack. The colonies-cum-states formed an integral part of the contemporary American cultural and political identity, and it was accordingly imperative that they correspondingly occupy a central role in whatever government was formed to administer a prospective union of the same. This was easier said than done, of course, and the potential solutions that Dickinson and his fellow delegates hit upon were understandably somewhat…wobbly.

As if having to account for the existence of strong, assertive states wasn’t problem enough, the framers of the Articles also faced the unusual problem of having to decide which responsibilities could reasonably be considered to fall under the heading of “national interest” at a time when the inhabitants of British America had rarely had cause to think of themselves as belonging to a community that spanned the Atlantic seaboard yet was untethered from Parliament or the Crown. It was true that projects like the aforementioned Albany Congress (1754), the Stamp Act Congress (1765), and the Continental Congress (1774) had encouraged the citizens and governments of the various colonies to begin to think in terms of the sensibilities and objectives that united all Americans, but none of these cooperative ventures embodied quite the same degree of substance as a national government. It was one thing for colonial delegates to assemble and discuss various non-binding proposals in which they identified the interests of their respective communities and quite another for a body intended to represent thirteen different states to make requisitions, conduct military affairs, pursue treaties of alliance or commerce, and administer land donated by those states in a way that spoke to the needs of the nation as a whole. Which powers could be delegated to the national government without violating the sovereignty of the states? Should the states possess a veto on national legislation or would the reverse be permissible? How much authority – and in what ratio – was enough for the national government to enjoy the respect of the American people without arousing their suspicion? Despite all that has occurred in nearly two hundred and fifty years to strengthen the sense of nationality and community nurtured by the citizens of the American republic, these kinds of questions continue to accompany nearly any exercise of federal power by the United States government. It should therefore come as no surprise – and it should to some degree excuse the generally mixed results – that the framers of the Articles were not always certain how to successfully balance and separate state and national priorities.

That the Articles were also crafted under the auspices of the Continental Congress doubtless added further impediments to its authors creating a viable final product, though the impulse behind the project itself was eminently sound. As mentioned above, the committee assigned to draft a plan of union was comprised of sitting delegates to Congress, to whom responsibility was also delegated to debate and approve the end result. In consequence, unlike the later Constitution, the Articles were crafted via a fairly slow and highly deliberative process. Over a year went by between the time that Dickinson submitted the first draft to Congress in July, 1777 and the final draft was approved by the same in November, 1778. Over the course of those many months, any number of articles, provisions, and clauses were doubtless weighed, modified, inserted, or excised as waves of delegates newly appointed to Congress by their respective states made known the concerns held by themselves and their constituents. Compared to the Philadelphia Convention of 1787, whose members drafted, debated, and approved the Constitution in a little less than five months, the process that birthed the Articles of Confederation represents nothing short of a marathon.

It likewise bears noting that the curtain of secrecy under which the Constitution was drafted was necessarily absent during the creation of the Articles. In the midst of a war, with delegates coming and going and the whole of Congress forced to relocate between December, 1776 and February, 1777 from Philadelphia to Baltimore, any such effort at confidentiality would surely have been doomed to failure. The Articles, therefore, were debated in public, in sometimes unsettled circumstances, by a rotating body of delegates, and over the course some sixteen months. The end result of these all these factors would seem to be a working environment in which a whole host of views, perspectives, and priorities were required to at least be considered if not accommodated, some form of external scrutiny was almost always present, and final approval would only result from an affirmative majority vote on the part of a supervising body whose membership and physical conditions were subject to fairly frequent change. Surely this qualifies as a less than ideal context in which to craft the first national government of the newly-minted American union, and may perhaps be said to account for some amount of the shortcomings of the resulting document.

In spite of the manifest impracticality which seemed to attend every circumstance under which the Articles of Confederation were crafted, however, the very fact of their existence was the result of a highly pragmatic observation on the part of Congress. Well and truly at war with Great Britain as of April, 1775, and struggling for independence rather than reconciliation as of July, 1776, the Thirteen Colonies were in desperate need of both international recognition and military and financial aid as the year 1777 dawned and the American victories at Lexington and Concord, Ticonderoga, and Boston gave way to a series of defeats and reversals in and around New York City. The obvious solution – and that which Congress hit upon – was the enlisting of foreign allies. France, for one, appeared a natural choice, owing mainly to its longstanding rivalry with Great Britain and its desire for unrestricted access to American markets and raw materials. The Dutch Republic, whose trade wars with Britain had spanned the better part of fifty years from the middle of the 17^th century, likewise seemed a probable supporter of American independence in the event that a suitable offer was made. In addition to sizable loans, direct military assistance, and diversionary attacks on British trade, these venerable European powers could be encouraged to exert the necessary diplomatic pressure to both bring Great Britain to the negotiating table and ensure that the newly-minted United States of America was afforded the respect it was owed as an independent nation and an ally in good standing. Promising though these prospects were, however, there were as yet certain logistical issues that wanted resolving before agreements between the United States of America and Britain’s various continental rivals could be signed and sealed. 

While the formal declaration of American independence effectively rendered moot any concerns that prospective allies might have nurtured as to the propriety of intervening in what was otherwise an internal conflict of the British Empire – as per the parameters of the Peace of Westphalia (1648) and its influential recognition of national sovereignty – there remained the question of whom precisely the nations in question would be negotiating with. The Continental Congress served reasonably well as a mechanism of interstate coordination and debate, but it lacked most of the characteristics that contemporary European sensibilities had come to associate with national governments. Absent the President of Congress – whose authority and duties resembled those of the contemporary Speaker of the House of Commons – there was no chief executive, nor any executive departments, nor an accompanying order of precedence. Responsibility for specific policy areas was exercised through a series of committees – some temporary, others permanent – with every major decision put to a vote by the larger body of delegates. And while Congress, in this state, managed to commission military officers and ambassadors, issue paper currency, and allocate requisitions of men and resources, it remained something of an ad-hoc institution bound together only by the voluntary participation of its constituent states. For the European empires to whom the United States wished to present its case, such a precarious state of affairs would have done little to inspire either confidence or trust.

A more substantial union of the states was called for – one which possessed the authority to create administrative departments, delegate authority on a permanent basis, and ratify treaties on behalf of its constituent states. Accordingly, Congress responded to the June 7^th, 1776 resolution of Virginia delegate Richard Henry Lee (1732-1794) that the united colonies ought to declare their liberation from British rule by commissioning three committees to draft three separate but linked documents. The first, the so-called “Committee of Five” set to work on a formal, written affirmation of the logic and reasoning behind the independence of the American states. The second committee was instructed to create a model treaty by which the United States might begin to seal the foreign military and economic agreements it so sorely required. And the third, led by the aforementioned John Dickinson, was given the task of creating a frame of government by which the effects of first committee’s declaration would be consolidated and made manifest and the product of the second committee’s efforts would be given substance and strength. The resulting Articles of Confederation were most certainly flawed, owing in large part to the circumstances of their creation. Nonetheless, their very existence was the product of a fairly insightful reading of contemporary European diplomatic norms on the part of authorities in Congress.