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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.
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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