Articles of Confederation | Explained

By | May 14, 2021


Judges and scholars often refer to the Articles of Confederation when making claims about the original meaning of the United States Constitution. Like the Government of India Act in India, the Articles of confederation was in the US before the enactment of the Constitution. The Supreme Court has looked to the Articles of Confederation in more than 150 cases for guidance in determining the meaning of the Constitution.

The most famous example appears in McCulloch v. Maryland.[1] In that case, the Court held that Congress has implied legislative powers based in part on a comparison of the text of the Tenth Amendment of the Constitution to the text of an antecedent provision in the Articles of Confederation. Writing for the Court, Chief Justice Marshall observed that while the Tenth Amendment limits Congress to those powers “delegated” to it by the Constitution, Article II of the Articles of Confederation previously had limited Congress to those powers “expressly delegated” by the Articles.

Evolution of Article of Confederation

The Articles of Confederation and Perpetual Union was the first written constitution of the United States. Written in 1777 and stemming from wartime urgency, its progress was slowed by fears of central authority and extensive land claims by states. It was not ratified until March 1, 1781. Under these articles, the states remained sovereign and independent, with Congress serving as the last resort on appeal of disputes.

Significantly, the Articles of Confederation named the new nation “The United States of America.”

Deep ideological splits over the amount of power that should be vested in the national government accompanied the drafting of the Articles of Confederation. Those favouring a weak national government prevailed, but their creation simply did not work when put to the test of practice.[2]

The national government lacked coercive power over individuals and a reliable revenue source and depended on the voluntary cooperation of the states. Because the national government could not function, the country was wracked by the alarming domestic insurgency known as Shays’s Rebellion and was unable to negotiate effectively abroad or stem protectionism at home.

From the beginning of the American Revolution, Congress felt the need for a stronger union and a government powerful enough to defeat Great Britain. During the early years of the war, this desire became a belief that the new nation must have a constitutional order appropriate to its republican character.

A fear of central authority inhibited the creation of such a government, and widely shared political theory held that a republic could not adequately serve a large nation such as the United States. The legislators of a large republic would be unable to remain in touch with the people they represented, and the republic would inevitably degenerate into a tyranny.[3]

To many Americans, their union seemed to be simply a league of confederated states, and their Congress a diplomatic assemblage representing thirteen independent polities. The impetus for an effective central government lay in wartime urgency, the need for foreign recognition and aid and the growth of national feeling.

Eventually, the baleful effects of governmental impotence fed a centralizing reaction that enabled those favoring a stronger national government to triumph over their opponents by securing ratification of a radically different charter, the Constitution.
Congress was given the authority to make treaties and alliances, maintain armed forces and coin money.[4]

Emergence of US Constitution

The Convention was supposed to open on May 14, 1787. But few of the 55 delegates had arrived in Philadelphia by that date. Finally, on May 25, the Convention formally opened in Independence Hall. Twelve states had responded to the call for the Convention.

The delegates to the Constitutional Convention relied greatly on past experience as they worked to create a new government. They recalled many important events in the development of constitutional government. These included the granting of Magna Carta, an English constitutional document, in 1215, and the meeting of the Jamestown Representative Assembly in 1619.

Rhode Island had refused to send delegates because it did not want the national government to interfere with Rhode Island’s affairs. Of the 55 delegates, 39 signed the United States Constitution on September 17, 1787.

The delegates included some of the most experienced and patriotic men in the new republic. George Washington served as president of the Convention. Benjamin Franklin, at the age of 81, attended as a Representative of Pennsylvania. The brilliant Alexander Hamilton represented New York.

James Madison of Virginia received the title of “Father of the Constitution” with his speeches, negotiations, and attempts at compromise. Madison told the delegates they were considering a plan that would “decide forever the fate of republican government.” He kept a record of the delegates’ debates and decisions.[5]

Morris was probably the most influential delegate after Madison and Washington. He was given the task of putting all the Convention’s resolutions and decisions into polished form. Morris actually “wrote” the Constitution. An original copy of the document is preserved in the National Archives building in Washington, D.C.

Patrick Henry refused to serve after his appointment because he opposed granting any more power to the national government. Three leading members of the convention Elbridge Gerry, George Mason, and Edmund Randolph refused to sign the Constitution because they disagreed with parts of it.[6]

The delegates agreed that each state should hold a special convention to discuss and vote on the Constitution. They also decided that as soon as nine states had ratified (approved) the Constitution, the Constitution would take effect and they could begin to organize their new government.

[1] 17 U.S. 316, 4 L. Ed. 579, 1819 U.S. LEXIS 320, 4 A.F.T.R. (P-H) 4491, 4 Wheat. 316, 42 Cont. Cas. Fed. (CCH) P77,296, Available Here

[2] Edmund C. Burnett, Southern Statesmen and the Confederation, 14 N.C. HIST. REV. 343, 349 (1936).

[3] Eeoc v. Wyo., 460 U.S. 226, 103 S. Ct. 1054, 75 L. Ed. 2d 18, 1983 U.S. LEXIS 134, 51 U.S.L.W. 4219, 31 Fair Empl. Prac. Cas. (BNA) 74, 31 Empl. Prac. Dec. (CCH) P33,364, 4 Employee Benefits Cas. (BNA) 1033., Available Here

[4] Why Constitutional Lawyers and Historians should take a fresh look at the emergence of the Constitution from the Confederation Period: The case of the Drafting the Articles of Confederation, 60 Tenn. L. Rev. 783, 785-787, Available Here

[5] Edward S. Corwin, The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention, 30 AM. HIST. REV. 511, 527 (1925).

[6] Alexis De Tocqueville, Democracy In America 112-14 (Phillips Bradley ed., 1945).

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