Today in History, on March 1, 1781, the states adopted the Articles of Confederation, putting into operation the first constitution for the United States.

In July of 1776, the Continental Congress passed the Richard Henry Lee Resolution and adopted the Declaration of Independence, dissolving all political attachments between the former colonies – now states – and the British Empire. Even so, a body of representatives, populated with delegates from each state, was still considered necessary to execute the war against Britain and secure foreign alliances.

By the end of 1776, a plan was developed to transform the Continental Congress into a legal entity. This would transpire through the adoption of a republican framework that took the form of a written constitution. The proposal called for the creation of a confederation – a league of sovereign countries – which would serve as the general agent of the states on matters the states deemed convenient. The man who spearheaded this effort was John Dickinson, an esteemed lawyer from Pennsylvania that played a key role in the colonial resistance against Stamp Act and Townshend Acts.

The Articles went unratified for several years, mainly due to various disputes between the states. In 1781, however, Maryland finally assented to the plan and effectively put the Articles of Confederation into motion after a series of concessions between states.

After Dickinson’s draft was produced, and a series of debates in Congress, the Articles of Confederation were adopted as the first Constitution of the United States. The constitutional model included several defining characteristics.

First, under the Articles, each state retained its sovereignty, freedom, and independence” in a confederation of state republics. In an unmistakable embrace of federalism, a citizen’s connection to his home state remained the most basic and important relationship in the American political system.

Second, rather than bestowing a general power to enact law on every conceivable subject, it was decided that Congress, a unicameral legislature, should only have the authority to pass laws on a predefined list of enumerated topics. For example, Congress could emit bills of credit, but had no power to set guidelines on education. As Article II put it, “every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled,” was to be retained by the states.

Third, it was decided that the Confederation Congress would only assume the role of a legislature, and that no executive or judicial branch would be created. Executive power would reside in the executives of the state governments only, and the judicial authority would remain in the state courts.

Fourth, all funding for Congress would be based upon a system of apportionment, where the states would be assigned a sum of money in direct proportion “to the value of all land within each State.” From there, the states would enact laws to raise the funds in ways that were conducive to their own constitutional systems. This arrangement for raising funds became known as the requisition system.

Fifth, the approval of nine out of 13 states would be required to do almost anything of significance. This requirement pertained to declaring war, borrowing money from foreign powers, entering into treaties, appointing a commander-in-chief, printing money, and several other functions.

There were also some other important facets of the Articles of Confederation worth noting. For instance, under the Articles, Canada could join confederation at any time as a member state on equal footing, but the addition of any other state required the consent of nine states.

Congress was to be represented by no less than two, but by no more than seven delegates from each state. If a state did not have at least two delegates in Congress, it could not vote until at least two delegates arrived. In addition, no delegate could serve for more than three years in a six-year period. Full control over the selection of delegates was granted to the state legislatures, which could also recall delegates and replace them with alternatives.

In addition, the official title of the document was “The Articles of Confederation and Perpetual Union.” However, in 18th century legal terminology, the term “perpetual” did not mean everlasting.

Instead, in this context, perpetual meant that the framework lacked a specific sunset date. Similarly, the 1783 Treaty of Paris secured a “perpetual” peace between the states and Great Britain. Of course, the War of 1812 threw that agreement by the wayside, just as the future Constitution would supplant the Articles.

The Articles of Confederation remained in effect until 1789. After a new Constitution was drafted by the Philadelphia Convention of 1787, ratified by the requisite number of nine states by 1788, and brought into fruition in the following year, a new constitutional order was established. The efficacy of the Articles is still debated by scholars. Those that perceive the system to be weak, deficient, and impotent usually point to several provisions as notable defects.

For instance, the document could only be amended if all 13 states agreed to do so. This was an incredibly difficult barometer to reach, and the framework was never amended despite the widespread mentality among almost all political factions that some changes were necessary.

In addition, the document enabled each state to enact crippling economic policies. During the 1780s, several states enacted highly protective tariffs, passed individual debt forgiveness measures that absolved individuals of debts in other states, and printed paper money – or bills of credit – which rapidly depreciated in value and penalized savings. These policies, by and large, inhibited free trade, heightened tensions between the states, and punished creditors. In addition to this, the Articles did not require coinage in gold and silver, and permitted Congress to print paper bills of credit. All of this transpired even after the disastrous Continental Currency, which ruined the value of money and became virtually worthless by 1780.

Under the Articles, the Confederation Congress also had trouble raising revenue to fund the government, as some states underpaid their assigned requisitions or refused to pay at all. Discomfort grew within states that paid in full, especially upon the observation that the free-riding states continued to retain the same standing in the government even after neglecting to pay the expected quotas.

Lastly, the Articles did not establish any type of law enforcement apparatus, or any institution to bring law to fruition. Consequently, almost all enactments of Congress had to be carried out by the individual states. This had the effect of making some laws and decisions virtually futile.

On the other hand, those who continue to hold the Articles in high regard usually cite several benefits of the framework.

First, the relative weakness of the central government lessened the possibility of encroachment upon the reserved powers of the states. This kept Congress for growing too powerful by holding it to strictly defined powers, and seemed to prevent happenings that traditionally undermined governments of the past, such as military coups and perpetual debt.

In addition, the Articles gave each state an absolute equal say in proceedings. This facet prevented the large, populous states – like Virginia, New York, and Pennsylvania – from overpowering and outmaneuvering the smaller states. Though some of the nationalist politicians of the era actually considered this a shortcoming, the equal footing of all states brought government closer to home for Americans and helped solidify the federal orientation of the union.

Another strength of the Articles was that it prohibited a national, standing army, where government maintained a permanent and professional army and held a monopoly on arms. Standing armies had led to the end of republics in both Rome and England, and the history of those events was especially familiar to the founding generation. As such, the stability of the republican system was protected through a deliberate provision in Article VI to restrain military power.

Some that champion the Articles also argue that the requisition system ultimately kept taxes from being too oppressive, even though Congress struggled to persist when requisitions were not paid.

This was because no central collection agency existed, and requisitions had to be raised by the respective states. States could even be compelled to withhold payments to Congress if they felt it was acting in a nefarious fashion.

Also, the Articles did not establish a unitary, powerful executive. Again persuaded by English and Roman history, the delegates generally perceived a strong executive as a dangerous impediment to liberty and republicanism. The system also did not ordain any unelected, bureaucratic establishments that would come later in American history. This prevented the imposition of rule by civil officials rather than representation by elected delegates.

Most traditional narratives generally hold that the Articles of Confederation were too weak to provide for governmental stability in a trying time. Federalists generally argued that without significant restructuring, the Articles would perpetuate political arrest and produce anarchy. Such circumstances, they claimed, could not be easily overcome by a fledgling republic.

Even so, skeptics who disagree sometimes counter that the Articles of Confederation actually allowed the states to be too powerful, and that the system’s supposed shortcomings, to the extent that they existed, could have been corrected through amendments. Because of the harsh precondition that required all 13 states to amend the document, and the proposal of a new constitutional system, however, no amendments ever came to fruition.

By 1787, many were willing to concede that the lack of a law enforcement mechanism, insufficient taxing power, and the nine-state barrier to policy, and 13-state requirement to amend the constitutional system were facets that required possible adjustment. A convention was called to convene in May, which later became known as the Philadelphia Convention, with the purpose of proposing amendments to the Articles of Confederation.

When the several states ratified the new Constitution that was drafted by the Philadelphia Convention in 1787-1790, the Articles faded into relative obscurity, and the Confederation Congress ceased to exist. Nonetheless, the document was one of the chief cornerstones of the Critical Period of United States history.

Dave Benner
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