December 5, 2022: Constitutional Contexts: The Articles of Confederation

[On December 7^th, 1787, Delaware became the first state to ratify the U.S. Constitution. So for the 235^th anniversary of that historic moment, this week I’ll AmericanStudy a handful of Constitutional contexts, leading up to a special weekend post on present issues and debates!]

On what was drastically different in the new nation’s first unifying documents, and what wasn’t.

Until researching this post, I hadn’t really understood just how much the Articles of Confederation paralleled the American Revolution. I knew they went into effect in March 1781, while the Revolution was still very much ongoing, but it turns out that that timing was due solely to how long it took all 13 states to ratify the Articles (Maryland was the last state to do so, on March 1, nearly two years after Delaware had become the 12^th to ratify); they were initially proposed in the immediate aftermath of the Declaration of Independence, in July 1776, and were after more than a year of heated debate approved by that Second Continental Congress and sent to the states for ratification in November 1777. Which is to say, the Articles weren’t a product of the Revolution (as I had always thought of them) so much as part of its impetus and origins, which now that I’ve reframed it that way does make sense—once the colonies had declared independence, it was vital that they immediately and consistently envision a political and civic arrangement through which they could exist in Perpetual Union (the usually elided part of their full title) without England, even (if not especially) while their war to establish and cement that independence was entirely ongoing.

Better understanding that Revolutionary context for the Articles can help explain some of the ways in which they differed from the Constitution that would eventually replace them. The most famous such difference is that under the Articles the central government (known first as the Continental Congress and then, after 1781, as the Congress of the Confederation) was quite weak, both on its own terms and in comparison to the individual states. I had always attributed that to the colonists’ hatred of the King and thus fears of a tyrannical government, and of course those were factors; but given the highly regional nature of the Revolution (with different battles/campaigns fought across the regions and states in somewhat disconnected and certainly discrete stages), it makes perfect sense that the Articles granted each state the power necessary to respond to those particular, evolving circumstances without needing to rely on or wait for a central authority. It’s harder to understand the choice to deny Congress any ability to levy taxes, leaving the central government entirely dependent on funding from the states; that limitation frequently left not just Congress but the Continental Army in the lurch. But on the other hand, that too can be seen as a wartime decision: fighting a war requires continued support and buy-in from civilians, and it’s fair to say that in a war which originated with opposition to onerous taxes, many colonists might have been unwilling to continue supporting a new government which immediately began imposing its own taxes.

Explicable or not, that element of the Articles continued to produce financial difficulties after the Revolution, and (along with the related histories of Shay’s Rebellion) contributed significantly to the move toward a new governing document. The ability to levy taxes was just one of many powers given to the far stronger federal government created by the Constitution (although not without extended debate, as I’ll discuss in tomorrow’s post). But despite those shifts, the Articles can be seen as a predecessor to the Constitution, and not just in symbolic ways (ie, how the Constitution’s Preamble echoes part of the Articles’ opening: “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”). In particular, the Articles created the new nation as a representative, democratic republic, with the state legislatures appointing representatives from each state to the Congress of the Confederation. Since the fundamental nature of the nation’s political system was just as uncertain as every other Revolutionary aspect, this was a vital choice, and one that was carried forward into and enhanced by the Constitution.

Next Constitutional context tomorrow,

Ben

PS. What do you think?