Guest Essayist: Joerg Knipprath

The Declaration of Independence that formalized the revolutionary action of the Second Continental Congress of the thirteen states did not, however, establish a plan of government at the highest level of this American confederacy. The members of that body understood that such a task needed to be done to help their assembly move from a revolutionary body to a constitutional one. A political constitution in its elemental form merely describes a set of widely shared norms about who governs and how the governing authority is to be exercised. A collection of would-be governors becomes constitutional when a sufficiently large portion of the population at least tacitly accepts that assemblage as deserving of political obedience. Such acceptance may occur over time, even as a result of resigned sufferance. Presenting a formal plan of government to the population may consolidate that new constitutional order more quickly and smoothly.

That process was well underway at the state level before July 4, 1776. Almost all colonies had provincial congresses by the end of 1774, which, presently, assumed the functions of the previous colonial assemblies and operated without the royal governors. In 1775, the remaining three colonies, New York, Pennsylvania, and Georgia, followed suit. Although they foreswore any design for independence, as a practical matter, these bodies exercised powers of government, albeit as revolutionary entities.

In 1776, the colonies moved to formalize their de facto status as self-governing entities by adopting constitutions. New Hampshire did so by way of a rudimentary document in January, followed in March by South Carolina. A Virginia convention drawn from the House of Burgesses drafted a constitution in May and adopted it in June. Rhode Island and Connecticut simply used their royal charters, with suitable amendments to take account of their new republican status. On May 10, still two months before the Declaration of Independence, the Second Continental Congress, somewhat late to the game, resolved that the colonies should create regular governments. These steps, completed in 1777 by the rest of the states, other than Massachusetts, established them as formal political sovereignties, although their continued viability was uncertain until the British military was evicted and the Treaty of Paris was signed in 1783.

At the level of the confederacy, the Second Continental Congress continued to act as a revolutionary assembly, but took steps to establish a formal foundation for that union beyond resolutions and proclamations. A committee of 13, headed by John Dickinson of Pennsylvania, the body’s foremost constitutional lawyer, completed an initial draft in July, 1776. That draft was rejected, because many members claimed it gave too much power to Congress at the expense of the states. Although time was of the essence to set up a government to run the war effort successfully, Congress could not agree to a plan until November 15, 1777, when they voted to present the Articles of Confederation to the states for their approval.

Ten states approved in fairly short order by early 1778, two within another year. Maryland held out until March 1, 1781, just a half year before the military situation was decided decisively in favor of the Americans as a result of the Battle of Yorktown. Since the Articles required unanimous consent to go into effect, this meant that the war had been conducted without a formal governmental structure. But necessity makes its own rules, and the Congress acted all along as if the Articles had been approved. Such repeated and consistent action, accepted by all parties established a de facto constitution. While the British might demur, at some point between the approval of the Articles in Congress and Maryland’s formal acceptance, the Congress ceased to be merely a revolutionary body of delegates and became a constitutional body. Maryland’s belated action merely formalized what already existed. The Continental Congress became the Confederation Congress, although it was still referred to colloquially by its former name.

One of the persistent arguments about the Articles questions their political status. Were they a constitution of a recognized separate sovereignty, or merely a treaty among essentially independent entities. There clearly are textual indicia of each. The charter was styled “Articles of Confederation and Perpetual Union,” a phrase repeated emphatically in the document. On the other hand, Article II assured each state that it retained its “sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not … expressly delegated to the United States.” Moreover, Article III expressly declared that the states were severally entering into “a firm league of friendship with each other, ….”

Article I provided, “The Stile of this confederacy shall be ‘The United States of America.” That suggests a separate political entity beyond its component parts. Yet the document had numerous references to the “united states in congress assembled,” and defined “their” actions. This, in turn, suggests that the states were united merely in an operative capacity, and that an action by Congress merely represented those states’ collective choice. Indeed, the very word “congress” is usually attached to an assemblage of independent political entities, such as the Congress of Vienna.

As an interesting note, such linguistic nods to state independence continue in some fashion under the Constitution of 1787. Federal laws are still enacted by a “Congress.” More significant, each time that the phrase “United States” appears in the Constitution, where the structure makes the singular or plural form decisive, the plural form is used. For example, Article III, section 3 declares, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, ….”

The government established by the Articles had the structure of a classic confederation. Theoretical sovereignty remained in the states, and practical sovereignty nearly did. The Articles were a union of states, not directly of citizens. The state legislatures, as part of the corporate state governments, rather than the people themselves or through conventions, approved the Articles. Approval had to be unanimous, in that each state had to agree. The issue of state representation proved touchy, as it would later in the Philadelphia convention that drafted the Constitution of 1787. While the larger states wanted more power, based on factors such as wealth, population, and trade, this proved to be both too difficult to calculate and unacceptable politically to the smaller states. Due to the need to get something drafted during the war crisis, the solution was to continue with the system of state equality used in the Continental Congress and to leave further refinements for later. States were authorized, however, to send between two and seven delegates that would caucus to determine their state delegation’s vote. This state equality principal was also consistent with the idea of a confederation of separate sovereignties.

The Confederation Congress had no power to act directly on individuals, but only on the states. It was commonly described as a federal head acting on the body of the states. Congress also had no enforcement powers. They could requisition, direct, plead, cajole, and admonish, but nothing more. Much depended on good faith action by state politicians or on the threat of interstate retaliation if a state failed to abide by its obligations. Of course, such retaliation, done vigorously, might be the catalyst for the very evil of disunion that the Articles were designed to prevent.

From a certain perspective, the Congress was an administrative body over the operative political units, the states, at least as far as matters internal to this confederation. This was consistent with the “dominion theory” of the British Empire that Dickinson and others had envisioned for the colonies before the Revolution, where the colonies governed themselves internally and were administered by a British governor-general who represented the interests of the empire. Thus, Congress could not tax directly. Instead, it would direct requisitions apportioned on the basis of the assessed value of occupied land in each state, which the states were obligated to collect. With funds often uncollected and states frequently in arrears, Congress had to resort to borrowing funds from foreign sources and emitting “bills of credit,” that is, paper money unbacked by gold or silver. Those issues, the Continental currency, quickly depreciated. “Not worth a continental” became a phrase synonymous with useless. Neither could Congress regulate commerce directly, although it could oversee disputes among states over commerce and other issues, by providing a forum to resolve them. Article IX provided a complex procedure for the selection of a court to resolve such “disputes and differences … between two or more states concerning … any cause whatever.”

It was easy for critics, then and more recently, to dismiss the Articles as weak and not a true constitution of an independent sovereign. The British foreign secretary Charles James Fox sarcastically advised John Adams, then American minister to London, when the latter sought a commercial treaty with Britain after independence, that ambassadors from the states needed to be present, since the Congress would not be able to enforce its terms. Yet, a union it was in many critical ways, as was recognized in the preamble to its successor: “We, the People of the United States, in Order to form a more perfect Union, ….” The indissolubility of this union was attested to by affirmations of its perpetuity. The Articles gave the Congress power over crucial matters of war and peace, foreign relations, control of the military, coinage, and trade and other relations with the Indians. Indeed, the states were specifically prohibited from engaging in war, conducting foreign relations, or maintaining naval or regular peacetime land forces, without consent from Congress. As to congressional consent, exceptions were made if the state was actually invaded by enemies or had received information that “some nation of Indians” was preparing to invade before Congress could address the matter. A state could also fit out vessels of war, if “such state be infested by pirates,” a matter that seems almost comical to us, but was of serious concern to Americans into the early 19th century.

The controversial matter of who controlled the western lands, Congress or the states, was not addressed. Nor did Congress have any power to force states to end their conflicting claims over such lands, except to provide a forum to settle disputes if a state requested that. Instead, Congress in 1779 and 1780 passed resolutions to urge the states to turn over such disputed land claims to Congress, which most eventually did. This very issue of conflicting territorial claims caused Maryland to refuse its assent to the Articles until 1781.

Yet, it was precisely on this issue of control over the unsettled lands where Congress unexpectedly showed it could act decisively. Despite lacking clear authority to do so, the Confederation Congress passed the Land Ordinance of 1785 and the even more important Northwest Ordinance of 1787. Those statutes opened up the western lands for organized settlement, a matter that had been dear to Americans since the British Proclamation of 1763 effectively put the Trans-Allegheny west off-limits to White settlers. Ironically, during the later debate on the Constitution of 1787, James Madison, in Federalist No. 38, theatrically used these acts of strength by Congress to point to the dangers of unchecked unenumerated powers. This was quite in contrast to the usual portrait of the Confederation’s weakness that Madison and others painted. To be fair, Madison conceded that Congress could not have done otherwise.

Significant also were the bonds of interstate unity that the Articles established. Article IV provided, “The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each state shall be entitled to all privileges and immunities of free citizens in the several states; ….” These rights would include free travel and the ability to engage in trade and commerce. As well, that Article required that fugitives be turned over to the authorities of the states from which they had fled, and that each state give full faith and credit to the decisions of the courts in other states. These same three clauses were brought into Article IV of the Constitution of 1787.

The Articles were doomed by their perceived structural weakness. Numerous attempts to reform them had foundered on the shoals of the required unanimity of the states for amendments. Another factor that likely caused the Philadelphia Convention of 1787 to abandon its quest merely to amend the Articles were their complexity and prolixity, with grants of power followed by exceptions, restrictions, and reservations set out in excruciating detail. The Articles’ weak form of federalism was replaced by the stronger form of the Constitution of 1787, stronger in the sense that the latter represented a more clearly distinct entity of the United States, with its republican legitimacy derived from the same source as the component states, that is, the people.

All of that acknowledged, the victor writes the history. Defenders of the Articles at the time correctly pointed out that this early constitution, drafted under intense pressure at a critical time in the country’s history and intended to deal foremost with the exigencies of war, had been remarkably successful. It was, after all, under this maligned plan that the Congress had formed commercial and military alliances, raised and disciplined a military force, and administered a huge territory, all while defeating a preeminent military and naval power to gain independence.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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