ARTICLES OF CONFEDERATION

On March 1, 1781, Congress proclaimed ratification of the constitution for a confederation named "the United States of America." People celebrated with fireworks and toasts, and a Philadelphia newspaper predicted that the day would forever be memorialized "in the annals of America.…" Another newspaper gave thanks because the states had at last made perpetual a union begun by the necessities of war.

The war was only three months old when benjamin franklin proposed the first continental constitution. He called it "Articles of Confederation and Perpetual Union," a name that stuck. Because the war was then being fought to achieve a reconciliation with England on American terms, Congress would not even consider Franklin's plan. But a year later, when Congress appointed a committee to frame a declaration of independence, it also appointed a committee, consisting of one member from each state, to prepare "the form of a confederation to be entered into by these colonies." john dickinson of Pennsylvania, whom the committee entrusted to draft the document, borrowed heavily from Franklin's plan and seems not to have been influenced by other committee members. One complained that Dickinson's plan involved "the Idea of destroying all Provincial Distinctions and making every thing of the most minute kind bend to what they call the good of the whole."

Dickinson was a "nationalist" in the sense that he believed that a strong central government was needed to build a union that could effectively manage its own affairs and compete with other nations. Congress, which was directing the war, became the hub of the Confederation. It was a unicameral house in which each state delegation had a single vote, making the states equal, and Dickinson proposed no change. Franklin, by contrast, had recommended that representation in Congress be apportioned on the basis of population, with each delegate having one vote. Dickinson carried over Franklin's generous allocation of powers to Congress, except for a power over "general commerce." Neither Franklin nor Dickinson recommended a general tax power. Congress requisitioned monies from each state for a common treasury, leaving each state to raise its share by taxation. Congress had exclusive powers over war and peace, armies and navies, foreign affairs, the decision of disputes between states, admiralty and prize courts, the coinage of money and its value, borrowing money on the credit of the United States, Indian affairs, the western boundaries of the states claiming lands to the Pacific, the acquisition of new territory and the creation of new states, standards of weights and measures, and the post office. Dickinson also recommended a "council of state" or permanent executive agency that would enforce congressional measures and administer financial, diplomatic, and military matters. Dickinson proposed many limitations on state power, mainly to secure effective control over matters delegated to Congress. The states could not, for example, levy imposts or duties that violated treaties of the United States. Even the sovereign power of the states over their internal concerns was limited by the qualification in Article III, the crux of the Dickinson draft: "Each colony [Dickinson always referred to "colony" and not "state"] shall retain and enjoy as much of its present Laws, Rights and Customs, as it may think fit, and reserves to itself the sole and exclusive Regulation and Government of its internal police, in all matters that shall not interfere with the Articles of Confederation." Clearly Dickinson envisioned a confederation in which the states did not master the central government.

Nationalists who supported the Dickinson draft in Congress argued, as did john adams, that the purpose of the confederation was to meld the states into "one common mass. We shall no longer retain our separate individuality" on matters delegated to Congress. The four New England states had the same relation to Congress that "four counties bore to a single state," Adams declared. The states could build roads and enact poor laws but "they have no right to touch upon continental subjects." james wilson, another centralist, contended that the Congress should represent all the people, not the states, because "As to those matters which are referred to Congress, we are not so many states, we are one large state." Few Congressmen were nationalists, however, and few nationalists were consistent. Congressmen from Virginia, the largest state, rejected state equality in favor of proportional representation in Congress with each delegate voting; but because Virginia claimed a western boundary on the Pacific, it rejected the nationalist contention that Congress had succeeded to British sovereignty with respect to the West and should govern it for the benefit of all. Congressmen from Maryland, a small state without western claims, adamantly held to that nationalist position but argued for state equality—one state, one vote—on the issue of representation. How requisitions should be determined also provoked dissension based on little principle other than self-interest.

The disputes over representation, western lands, and the basis for requisitions deadlocked the Congress in 1776. The next year, however, state supremacists who feared centralization won a series of victories that decisively altered the character of the confederation proposed by Dickinson and championed by Franklin, Adams, and Wilson. Dickinson's Article III was replaced by a declaration that "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled." Thus, colonial control over internal police became state sovereignty over all reserved powers, and the central government received only "expressly delegated" powers rather than implied powers to control even internal police involving matters of continental concern. State supremacists also restricted the power of Congress to make commercial treaties: no treaty could prohibit imports or exports, and no treaty could prevent a state from imposing retaliatory imposts. The revised Articles also scrapped Dickinson's executive branch, accepted the state sovereignty principle that each state cast an equal vote, modified Congress's judicial authority to decide all intercolonial disputes, and denied the power of Congress to fix the western boundaries of states.

Maryland, however, refused to accept the decision on the boundary issue. Although Congress completed the Articles in November 1777, unanimous ratification by state legislatures came hard. By the beginning of 1779, however, Maryland stood alone, the only state that had not ratified, and Maryland was unmovable. As unanimity was necessary, Maryland had the advantage as well as a great cause, the creation of a national domain. In 1780 New York and Connecticut ceded their western lands to the United States. Congress then adopted a report recommending the cession of western claims by other states, and in October 1780, Congress yielded to Maryland by resolving that ceded lands should be disposed of for the common benefit of the United States and be formed into "republican states, which shall become members of the federal union" on equal terms with the original states. Virginia's acceptance in January 1781 was decisive. Maryland ratified.

When Congress had submitted the Articles for ratification its accompanying letter accurately stated that its plan was the best possible under the circumstances; combining "in one general system" the conflicting interests of "a continent divided into so many sovereign … communities" was a "difficulty." The Articles were the product of the american revolution and constituted an extraordinary achievement. Congress had framed the first written constitution that established a federal system of government in which the sovereign powers were distributed between the central and local governments. Those powers that unquestionably belonged to Parliament were delegated to the United States. Under the Articles Congress possessed neither tax nor commerce powers, the two powers that Americans in the final stages of the controversy with Britain refused to recognize in Parliament. Americans were fighting largely because a central government claimed those powers, which Americans demanded for their provincial legislatures. Given the widespread identification of liberty with local autonomy, the commitment to limited government, and the hostility to centralization, the states yielded as much as could be expected at the time. Because Congress represented the states and the people of the states, to deny Congress the power to tax was not logical, but the opposition to centralized powers of taxation was so fierce that even nationalists supported the requisition system. "It takes time," as john jay remarked, "to make sovereigns of subjects."

The sovereignty claimed by the states existed—within a limited sphere of authority. The Articles made the United States sovereign, too, within its sphere of authority: it possessed "sole and exclusive" power over fundamental matters such as foreign affairs, war and peace, western lands, and Indian affairs. The reservation of some sovereign powers in the states meant the surrender of other sovereign powers to the central government. Americans believed that sovereignty was divisible and divided it. In part, federalism is a system of divided sovereign powers. The Articles had many defects, the greatest of which was that the United States acted on the states rather than the people and had no way of making the states or anyone but soldiers obey. The failure to create executive and judicial branches, the requirement for unanimity for amendments, and the refusal to concede to Congress what had been denied to Parliament resulted in the eventual breakdown of the Articles. They were, nevertheless, a necessary stage in the evolution of the Constitution of 1787 and contained many provisions that were carried over into that document.

(See constitutional history, 1776–1789.)

Leonard W. Levy
(1986)

Bibliography

Henderson, H. James 1974 Party Politics in the Continental Congress. New York: McGraw-Hill.

Jensen, Merrill 1963 (1940) Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution. Madison: University of Wisconsin Press.

Rakove, Jack N. 1979 The Beginnings of National Politics: An Interpretive History of the Continental Congress. New York: Knopf.