What power did the national government have under the Article of Confederation?

After the Lee Resolution proposed independence for the American colonies, the Second Continental Congress appointed three committees on June 11, 1776. One of the committees was tasked with determining what form the confederation of the colonies should take. This committee was composed of one representative from each colony. John Dickinson, a delegate from Delaware, was the principal writer.

The Dickinson Draft of the Articles of Confederation named the confederation "the United States of America." After considerable debate and revision, the Second Continental Congress adopted the Articles of Confederation on November 15, 1777.

The document seen here is the engrossed and corrected version that was adopted on November 15. It consists of six sheets of parchment stitched together. The last sheet bears the signatures of delegates from all 13 states.

This "first constitution of the United States" established a "league of friendship" for the 13 sovereign and independent states. Each state retained "every Power...which is not by this confederation expressly delegated to the United States. The Articles of Confederation also outlined a Congress with representation not based on population – each state would have one vote in Congress.

Ratification by all 13 states was necessary to set the Confederation into motion. Because of disputes over representation, voting, and the western lands claimed by some states, ratification was delayed. When Maryland ratified it on March 1, 1781, the Congress of the Confederation came into being.

Just a few years after the Revolutionary War, however, James Madison and George Washington were among those who feared their young country was on the brink of collapse. With the states retaining considerable power, the central government had insufficient power to regulate commerce. It could not tax and was generally impotent in setting commercial policy. Nor could it effectively support a war effort. Congress was attempting to function with a depleted treasury; and paper money was flooding the country, creating extraordinary inflation.

The states were on the brink of economic disaster; and the central government had little power to settle quarrels between states. Disputes over territory, war pensions, taxation, and trade threatened to tear the country apart.

In May of 1787, the Constitutional Convention assembled in Philadelphia to revise the Articles of Confederation. They shuttered the windows of the State House (Independence Hall) and swore secrecy so they could speak freely. By mid-June the delegates had decided to completely redesign the government. After three hot, summer months of highly charged debate, the new Constitution was signed, which remains in effect today.

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1
Freedom of religion, speech, press, assembly, and petition.
2
Right to keep and bear arms in order to maintain a well regulated militia.

3 No quartering of soldiers.
4 Freedom from unreasonable searches and seizures.
5 Right to due process of law, freedom from self-incrimination, double jeopardy.
6 Rights of accused persons, e.g., right to a speedy and public trial.
7
Right of trial by jury in civil cases.

8 Freedom from excessive bail, cruel and unusual punishments.
9 Other rights of the people.
10 Powers reserved to the states.

The following is a guest post by James Martin, a Collections and Outreach Specialist, in observation of Constitution Day on September 17, 2011.

The need for a united policy during the War of Independence led the thirteen states to draft and approve an organic document for a national government.  In 1776, the Continental Congress created a committee to draft such a document.  In 1777, the committee reported a draft that had been prepared by Delegate John Dickinson.  After a period of debate and addition of amendments, the text was approved by the Congress and submitted to the states for ratification.  Unlike the current Constitution, all thirteen states had to approve the Articles before it would be in effect.  A number of years elapsed between the approval of the draft of the Articles of Confederation by the Continental Congress in late 1777 and the ratification by the final state in 1781.

Articles of Confederation

Under the Articles of Confederation, the power of the national government was exclusively centered in the Congress.  The Congress, called the “Congress of the Confederation” under the Articles, was based upon the institutions of the Second Continental Congress and, as such, was a unicameral body where each state had one vote.  The Articles provided for the annual appointment of delegates to the Congress, for the recall of delegates, and for the minimum and maximum number of delegates that would make up each state’s delegation.  In addition, provision was made for term limits for delegates.  Delegates were granted protection from arrest for activities arising from their official duties under a Speech and Debate Clause, a practice which was continued in the current Constitution.  The Congress was to meet annually and provision was made for the creation of a Committee of the States to conduct business when the Congress was not in session.

The Articles provided for no permanent national judiciary, although the Congress was given sole jurisdiction in matters of boundary disputes between states, and as part of the war powers it was given the power to create courts to determine prize cases (cases related to the capture of enemy commercial vessels on the high seas).  No national executive was created; instead, after the ratification of the Articles in 1781, the Congress annually elected an individual who served as the President of the Congress.  The position had no broad executive powers, however.

As with the current Constitution, the Articles envisioned a level of comity between the states.  The Articles provided that “the free inhabitants of each of these states, paupers, vagabonds and fugitives from Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states.”  In addition, citizens were allowed the right to freely move with their property between the states.  Clauses governing extradition and the full faith and credit of public proceedings were also included.

In some ways the powers granted to the Congress under the current Constitution and the Articles are similar.  Both provide that the Congress has the sole authority for declaring war (although the Articles allowed for the States to wage war in instances of immediate invasion when the Congress was not in session).  Both provide that the national government would conduct foreign affairs, although the Articles allowed for states to send and receive embassies with the approval of Congress.  Both allow the Congress to set a system of uniform weights and measurements and to set standards for uniform coinage.  The Confederation Congress could also regulate interstate movement of the mails.

However, while the Articles provided that the Congress would have the power to pay the debts of the national government, it did not provide for a means for that body to directly raise revenue.  Although the Congress had certain authority which could be used to regulate the economy, it lacked enforcement power.  In addition, because of the perceived weakness of the national government, the diplomatic standing of the nation suffered.  The new nation was unable to compel the removal of British forces from the territory north of the Ohio River as required by the Treaty of Paris.   These and other shortcomings resulted in proposals to amend the Articles, which ultimately led to the Constitutional Convention of the summer of 1787.

It is worth noting that the government created by the Articles did have a lasting impact.  The Congress was able to successfully resolve disputes over the division of the western lands that had been surrendered by Great Britain after Independence.  The Land Ordinance of 1785 (laws passed by the Continental and Confederation Congresses are called ordinances) and the resulting North West Ordinance of 1787 are the most long lasting as they provided for the disposition of public lands and procedures for organizing territorial governments in the lands west of the Appalachian Mountains.  The framework established by these Ordinances was to be used later in the history of the country.  In addition, the Congress, in establishing the Federal Court of Appeals to resolve prize cases, provided a precedent for the establishment of the later Federal court system.  Finally, although the Articles have not often been cited in subsequent legal opinions, the idea that the union formed by them was “perpetual,” as set forth in Article XIII, was cited in dicta by Chief Justice Salmon Chase in the opinion of the Supreme Court in Texas v. White, 74 U.S. 700, 725 (1868).

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