An Architect Reads the Articles of Confederation and Perpetual Union

When the members of the Second Continental Congress voted in favor of the Declaration of Independence in July of 1776, they created a new form of government, a democracy of the people, by the people, and for the people, right? Well, actually, no. The Declaration of Independence didn’t give birth to a new nation, but that wasn’t its purpose. Rather, it was to justify in the eyes of the world why 13 British colonies felt they should be free and independent states. These new states jointly declared their independence with the hope that other countries would, if not go so far as to support their break with Great Britain, at least not help the British in repressing the revolution. The Continental Congress also knew that some form of unification of the 13 states was needed to win the war, so they authorized the drafting of another document to define the peculiar relationship of these 13 new “United States.”

On June 12, 1776, Congress appointed 13 men (one per colony, and of course they were men) to draft a set of rules to establish how these states would govern themselves. John Dickinson of Pennsylvania did most of the writing—Ben Franklin, John Adams, and Thomas Jefferson were already busy writing the Declaration of Independence—and presented it to Congress on July 12, 1776. During the following year, while Congress was jumping from Philadelphia to Baltimore to Lancaster to York to stay ahead of the British soldiers, they argued their way through two more drafts before agreeing on a final version on November 15, 1777. The Articles of Confederation and Perpetual Union were then submitted to the states for ratification.

What do the Articles say? Before I started researching this topic, I had no idea; I’d never read them. But now I have, and here are the highlights:

The Preamble to the Articles starts with these stirring words that all American children learn in elementary school: “To all to whom [1] these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.” Okay, so we didn’t learn them in school, and they aren’t all that stirring, nowhere near a “We the People” level of inspiration. The rest of the preamble just confirms that the delegates met in 1777 (or “the Second Year of the Independence of America” [2]) and lists the 13 states.

Article I gives a name to the new “nation”: “The Stile of this Confederacy shall be ‘The United States of America.’” At a time when most nations were kingdoms or empires, this was an unusual name, but not without precedent. For example, in 1581, what eventually became the Netherlands was born as the United Provinces of the Netherlands.

In fact, the delegates didn’t think of the United States of America as a nation at all, but as a confederation of states. When the Declaration of Independence starts with “The unanimous Declaration of the thirteen United States of America,” it wasn’t naming a new country, it was merely saying that the 13 former colonies were now states, that is, nations, which had decided to become independent from Great Britain as a group because that was their only chance of success. On September 9, 1776, after the Declaration was approved but well before the final draft of the Articles was completed, the Continental Congress declared that “United States” was to be used in lieu of “United Colonies.”

Article II says that “each state retains its sovereignty, freedom, and independence.” In other words, the Articles weren’t meant to create a single nation; they were just defining a way for the 13 new nations to work better together in such matters as fighting the British and paying for the war. Article II goes on to assert that each state retains “every power, jurisdiction, and right, which is not . . . expressly delegated to the United States.” That is, if the Articles don’t explicitly give the Confederation a specific power, each state retains that power.

Article III says the states are entering “into a firm league of friendship with each other,” hardly the strong union that binds the states today. The purpose of this friendship was “their common defense, the security of their liberties, and their mutual and general welfare, . . . to assist each other, against . . . attacks made upon them, or any of them.” In 1777, when the British were concentrating their forces against New York, Massachusetts, New Jersey, and Pennsylvania, this agreement ensured that other states, including such powerhouses as Virginia, that had not yet been attacked wouldn’t make a separate peace with the British. It’s in this article that the term “United States” starts being used consistently in lieu of “Confederacy” or “Confederation.”

Article IV allows people from any state to freely travel to any other state (with the exception of “paupers, vagabonds, and fugitives from justice”), and that fugitives from justice (including, presumably, escaped slaves) fleeing from one state “shall be delivered up and removed to the State having jurisdiction of his offense.” This article also ensures considerable freedom of trade between states.

Article V talks about Congress. Each state could have from two to seven delegates in Congress. The states determine this number arbitrarily rather than by population, but the number didn’t matter since each state had just one vote. Delegates were assured freedom of speech and debate and, while they were members of Congress, were protected from arrest or imprisonment, except for treason, felony, or “breach of the peace,” which seems to allow considerable leeway in interpretation.

Article VI prohibits anyone who held an office under the United States from accepting “any present, emolument, office, or title of any kind whatever from any King, Prince, or foreign State.” (Note how “foreign State” is distinguished from one of the “United States.”) This article also prohibits states from waging their own wars unless in self-defense, and talks about what kinds of armed forces each state can maintain. In times of peace, states could have armed forces and vessels of war as allowed by Congress. But “every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”

This sounds a lot like what the U.S. Constitution’s Second Amendment, in its botched and poorly worded way, is trying to say, that is, that well-regulated militias are officially maintained and armed by the states, not by individuals or groups of individuals, and it’s these state-controlled militias that have the right “to keep and bear Arms.”

Article VII gives the legislatures of each state the power to appoint certain military officers when “land forces are raised by any State for the common defense.”

Article VIII provides for a common treasury to cover the costs of war. How much each state puts into the treasury is “in proportion to the value of all land within each State,” including “buildings and improvement thereon.” However, since the power of taxation is given to the states, Congress doesn’t seem to have had a way to enforce this article.

Article IX is by far the longest article [3], describing the various powers and rights of Congress (with all other powers and rights being the States’, per Article II). Briefly, and skipping a lot of messy details, Congress has the power of “determining peace and war,” of “entering into treaties and alliances,” of “regulating the alloy and value of coin struck by their own authority,” of fixing standards of weights and measures, of “managing all affairs with the Indians,” of “establishing and regulating post offices . . . throughout all the united States,” [4] of appointing all officers of the land and naval forces and directing the operations of those forces. Congress “shall also be the last resort of appeal in all disputes . . . between two or more States concerning boundary, jurisdiction or any other causes whatever.”

It sounds like Congress has quite a bit of power, except for one thing: None of those powers could be used unless nine states gave their assent. Remember, each state had just one vote, regardless of population or land value, so little states had as much say as the big ones. (That would be the equivalent today of needing 35 states to agree before any law could be passed.) Not only that, but no topic, other than when the members would adjourn for the day, could be debated in Congress unless the majority of the states assembled agreed it could.

This article also established another governing entity, the “Committee of the States,” consisting of one member from each state, to carry out congressional duties when Congress was in recess. The committee members would appoint one member to preside; this “president” could serve for no more than one year in any three-year period. Don’t let the name mislead us into thinking the president had any power; other than presiding over the Committee of the States, the Articles don’t give the president any authority or responsibility.

Article X talks about who’s in charge when Congress is in recess. In that case, the Committee of the States was authorized to execute the powers of Congress, provided at least nine states were represented. This recognized how difficult and time-consuming it would have been to reassemble Congress back then.

Article XI invites Canada to join the United States and be “entitled to all the advantages of this Union.” I guess that didn’t work out. This article also stipulates that, other than Canada, “no other colony” could be admitted to the U.S. unless agreed to by nine states.

Article XII says that all “bills of credit, monies borrowed, and debts contracted by, or under the authority of Congress” are to be paid by the United States.

And finally, Article XIII says that “the Articles of this Confederation shall be inviolably observed by every State, and the union shall be perpetual.” (The eventual U.S. Constitution never talks about the union being perpetual; thus, the Civil War.) Moreover, any changes to the Articles must be agreed to by Congress and “confirmed by the legislatures of every State.” In other words, amending the Articles required unanimous agreement by the states; as a result, they were never amended. (In 1786 a revision to the Articles giving Congress more power over commerce and a means to collect money was proposed but couldn’t get the unanimous approval needed.)

Following this last article, we read that “we the undersigned delegates, . . . in behalf of our constituents, fully and entirely ratify and confirm each and every of the said Articles.” The Articles are here dated July 9, 1778 (or “the Third Year of the independence of America”). The version of the Articles sent to the states in 1777 for ratification was unsigned and undated. It wasn’t until July of 1778 that the final, “prepared” copy was ready to be signed. It’s this copy that’s held in the National Archives.

The Articles were signed by 46 men (of course they were men). They are mostly unknown to most of us now, but a few names stand out: John Hancock (of signature fame), Elbridge Gerry (of gerrymandering fame), Samuel Adams (of beer fame), and Roger Sherman and Robert Morris, the only two people to sign the Declaration of Independence, the Articles of Confederation, and the U.S. Constitution. No future U.S. presidents signed the Articles. 

In December 1777, Virginia was the first state to ratify the Articles, just a month after they were submitted to the states, followed by eleven more states by February 1779. But the Articles required unanimous ratification to take effect, and Maryland held out for two more years until February 2, 1781. When Congress learned of Maryland’s ratification on March 1, they declared the Articles as taking effect throughout the 13 confederated states. It was just a few months later when the siege of Yorktown began, followed by the British surrender in October.

Ten men (of course they were men) served as president of the Committee of the States from March 1781 to November 1788. The first was Samuel Huntington of Connecticut, who had also been president of the Continental Congress from 1779 to 1781. The presidents included two illustrious names: John Hancock and Richard Henry Lee, of Virginia’s politically important Lee family, who also, on June 7, 1776, had submitted to Congress the Lee Resolution, which was the first formal proposal for the colonies to declare independence from Great Britain. Some folks think these 10 presidents should count, and that George Washington would thus be the 11th president of the United States. That implies that a president under the Articles is equivalent to a president under the Constitution. But Constitutional presidents have many defined powers and responsibilities, whereas under the Articles, presidents had none of either.

I don’t know what elementary students are learning today, but in the 1960s, if we learned anything at all about the Articles, it was that they were a failure. And in many ways they were: All power resided with a single-house legislative branch, but the one-state/one-vote rule and the need for nine states to agree meant that it was difficult to resolve anything. There was no executive branch or judicial branch. States often failed to meet their financial commitments to the confederation, and the confederation government, such as it was, had no way to force them to pay. Moreover, states frequently violated treaties with Native Americans, and they argued over any number of things, including boundaries, fishing rights, and tariffs.

On the other hand, under the Articles, the United States negotiated the 1783 Treaty of Paris, in which the United States were [5] not only officially recognized as independent of the British but also were granted all the land east of the Mississippi and south of Canada. Those vast western lands were a matter of dispute among the states. States that bordered the new territories might have claimed them as their own, leaving smaller states to the east—for example, Delaware, Maryland, and Rhode Island—to receive no benefit. Even before 1781, these land- and sea-locked states withheld ratification of the Articles until the better positioned states surrendered their rights to western lands, granting them to all the states. Furthermore, these western territories would not be treated as colonies to a mother country, but as territories to eventually be admitted as states with a status equal to the original 13.

One glaring thing that isn’t mentioned in the Articles is slavery. The only indirect reference is in Article IX, which says that the Committee of the States was empowered to make requisition of funds from the states “in proportion to the number of white inhabitants in such State,” which benefitted states where slavery was legal. It wasn’t until the Constitution was being hammered out that counting slaves benefitted those states, leading to the three-fifths-of-a-person compromise.

Another important thing missing from the Articles is a bill of rights, or any mention at all of individuals’ rights. This became a point of contention during the ratification of the Constitution. Several states refused to ratify unless the Constitution was amended with a Bill of Rights. This was resolved in 1788 when Massachusetts appended a list of proposed amendments to its ratification. Other states followed this practice, and the eventual list of amendments became, under the First Congress, the first 10 Amendments.

In 1785, delegates from Maryland and Virginia met at Mount Vernon to settle some boundary disputes. The Virginians then suggested that all 13 states meet to resolve some of the problems the confederation was facing. In September 1786, representatives of just five states—Virginia, New York, Pennsylvania, Delaware, and New Jersey (but not Maryland)—met in Annapolis and decided that something needed to be done about their so-called confederation and the Articles. They proposed a convention of the states to meet the following year, to see what could be done about fixing the Articles to make them more effective.

By then, 10 of the states [6] had already written constitutions to govern themselves, so the spirit of constitution writing was in the air. Meanwhile, a new generation of Founding Fathers (of course they were fathers) was coming into their own, men such as James Madison and Alexander Hamilton, who saw the value of and could passionately argue for a stronger national government. When the delegates met in Philadelphia in the summer of 1787, they knew better than to try patching up something that wasn’t working. Instead, they created something new, something better, something that, if we’re diligent and lucky, will survive for many generations to come. [7]

Follow the author on Twitter @bill_schmwil.

Footnotes:

[1] These four words are in large, ornate letters filling the top of the parchment. See image above.

[2] Is this the first time that “America” is used synonymously with the United States? Probably not. It’s used at least twice in the Articles, so perhaps it was already a common shorthand for the British colonies in North America.

[3] Perhaps the most amazing feature of this article is a 428-word sentence that goes on and on (and on) about how Congress can resolve disputes between states. This sentence includes a statement within quotation marks, starting with “well and truly”: “Where the cause shall be tried, ‘well and truly to hear and determine the matter in question, according to the best of his judgement [sic], without favor, affection or hope of reward’. . .” No explanation is given as to where this quotation comes from, or why it’s in quotation marks.

[4] Note the lower-case united. The Articles sometimes uses “United States” and sometimes “united States.” This reinforces the point that, under the Articles, this confederation wasn’t so much a single country as a union of 13 countries.

[5] For many decades, United States was a plural term, fitting for how the country was formed of independent states. It wasn’t until after the Civil War that that United States became a singular entity.

[6] The early constitutions were by Delaware, Georgia, New Hampshire, New Jersey, North Carolina, Pennsylvania, South Carolina, Virginia, (1776), New York (1777), and Massachusetts (1779).

[7] The next two episodes of this story, about the Constitution and its Amendments, can be found at https://www.dhirubhai.net/pulse/architect-reads-constitution-william-schmalz-faia?published=t and https://www.dhirubhai.net/pulse/architect-reads-amendments-william-schmalz-faia?published=t.