March 7: Articles of Confederation – Congress Wielded All Three Powers: Legislative, Judicial, Executive, Later Separated – Guest Essayist: Daniel A. Cotter

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On November 15, 1777, the Continental Congress approved what was this newly declared independent nation’s first constitution, the Articles of Confederation.  The Articles included a single governing body, the Continental Congress.   Requiring unanimous ratification by all thirteen of the British colonies, it took until March 1, 1781, when Maryland ratified the Articles, for them to become effective.  The Articles governed until 1789, when the United States Constitution replaced the Articles.

The Articles were a war-time pact intended to bring the thirteen colonies, disparate in their needs and interests, together to fight Great Britain.  Structured very differently than the United States Constitution, the Articles featured a weak central government that had no real power over the thirteen sovereign colonies.  By design, the colonies retained their independence and sovereignty, which pleased the colonies but made it difficult for there to be a unity of purpose or ability to honor the nation’s obligations and commitments.  For example, to fight the Revolutionary War, the colonies had borrowed substantial sums.  Post-war, when Congress attempted to collect the debts from the colonies, it had no power to enforce allocations.

The Articles consisted of 13 articles, likely not a coincidence, with the 13th making it clear that the Articles might only be amended by unanimous ratification by the states’ legislatures.  (The attendees of the Philadelphia convention in 1787 would ignore this requirement, with Rhode Island not attending the convention.)

Article Two provided:

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”

Article Three confirmed that the intent was not to have a centralized government trump the states, specifying:

“The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare….”

The Articles did not contemplate separate branches of government, as we experience today at all levels of government, but rather specified a single governing body.  Article Nine sets forth the powers of the national government, including:

  • the sole and exclusive right and power to determine peace and war; to exchange ambassadors; to enter into treaties and alliances; to establish rules for deciding all cases of captures or prizes on land or water; to grant letters of marque and reprisal(documents authorizing privateers) in times of peace; to appoint courts for the trial of pirates and crimes committed on the high seas; to establish courts for appeals in all cases of captures, but no member of Congress may be appointed a judge; to set weights and measures (including coins), and for Congress to serve as a final court for disputes between states.
    • regulating the post offices; appointing officers in the military; and regulating the armed forces.

The Articles also provided for a President, but that position was mostly an honorific one without any real executive powers with no executive branch and a unicameral legislative house, the Continental Congress.  There was no judiciary, there was simply the Continental Congress. Judicial function was limited to trial of pirates, crimes committed on high seas, and courts of appeals.

What did the Framers think of the Articles of Confederation and why they did not last?

The Articles were the initial effort of the colonies, who declared independence in July 1776, to form a stronger national government.  First introduced in 1776, they were approved by the Continental Congress and from their effective date in 1781 until 1787, when the Constitutional Convention met, they served to get the nascent nation through a war.  When the war was over, and the Continental Congress sought to address war debts, interstate commerce and treaties, it became apparent that the existing Articles needed to be amended.   The Framers considered some of the weaknesses of the Articles, including: 1) each state had only one vote in Congress, regardless of delegation size or size of state, 2) Congress had no power to tax, which became a challenge in repaying the nation’s war debts; and, 3) Congress had no effective power to regulate foreign and interstate commerce.

Some trade disputes ensued, and James Madison called for a convention to be held in Annapolis, Maryland in 1786.  Only five states were represented and so the attendees called for a convention the following May to be held in Philadelphia, Pennsylvania. On February 21, 1787, the Continental Congress approved a plan to amend the Articles in Philadelphia in May in what became known as the Constitutional Convention, to amend the Articles, as the resolution stated:

“to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union.”

George Washington referred to the Articles as effectuating “a half-starv’d, limping Government.”  In 1780, Alexander Hamilton wrote, “The fundamental defect is a want [lack] of power in Congress.”  James Madison stated:

I conceive it to be of great importance that the defects of the federal system should be amended, not only because such amendments will make it better answer the purpose for which it was instituted, but because I apprehend danger to its very existence from a continuance of defects which expose a part if not the whole of the empire [nation] to severe distress. The suffering part [people], even when the minor [minority] part, cannot long respect a Government which is too feeble to protect their interest.

Conclusion

When delegates met in Philadelphia to review the Articles of Confederation, they called for an oath of secrecy and immediately set aside the Articles, our first constitution, to embark on a new guiding instrument, the United States Constitution.  Many may lament that is has significant weaknesses, but many of the flaws of the Articles were corrected by the Framers, and the rest, as they say, is history.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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4 replies
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for highlighting the essentials of the Articles of Confederation. Also for providing direct comments of the founders and historical context.

    PSD

    Reply
  2. Ralph Howarth
    Ralph Howarth says:

    Worthy of note that regulation in conventional context meant “to publish or make regular” as opposed to the modern interpretation of “to control”. Aside from a state having the natural right of controlling trade with other foreign states, regulation of commerce was that of fundamentally publishing exchange rates, applying duties and imposts, and drawing rules for standard clearing of goods in ports. In common law practice, a duty was a unique form of tax in that it was not considered an instrument of raising revenue but a tax specifically for regulating commerce; but the duty itself is not a quota.

    Case in point, when Congress went to task to regulate coin, the Spanish Gold Milled Dollar became the go to coin of commerce as it was the defacto coin in wide use in the Caribbean where much trade with Europe transpired. Congress did not decide what was the value of a coin from a foreign power but simply published its value as the going rate. When states began minting coin and Congress recognized the gold backed American coin, then the American coin was naturally called the Americana Dollar in contrast to the Spanish Gold Milled Dollar. The power of regulate; therefore, is the power to declare what is, which a similar power to setting a standard of weights and measures.

    When it comes to questions of equity in court, the only thing a court really concerns itself with is the instrument of valuation. It does not matter so much what the instrument is; only that a clearly defined instrument is in common use in commerce. If someone comes in with a valuation of barrels of pitch, it is expected that the value of the pitch is the equivalent to 55 gals of pitch. As pitch is a useful substance for waterproofing the holds and ballasts of ships, a shipbuilder may make a complaint that the seller was claiming 53 gal as “barrels” instead of a full 55 gallons. A court may find the petitioner has a cause of action on account of the instruments of valuation.

    Regulation operates exactly in this domain of valuation rather than plenary control for it promotes assurance that matters written in a contract are uniform in their meaning and operation; but has absolutely nothing to do with controlling outcomes. The strongest instrument of control Congress had in commerce was the Duty Tax. Outside of that, Congress only had the power to regulate the conduct that commerce operated in. Later, during the nascent New Deal policies, SCOTUS struck down a number of intrusive federal actions that attempted to control prices, labor, and production that were a far cry from anything to do with merely publishing rules of measurement and conduct. But after SCOTUS knuckled under the court packing threat of FDR to indirectly dilute and ouster the voting power of seated SCOTUS justices (who ruled constitutionally), then SCOTUS started to permit Congress to act as a plenary controller of Congress beyond just regulating. But such a power grab is co-opted into a euphemism of “regulation” to dupe the populace into acquiescence.

    Reply

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