Sparks Commentary: How different was the Constitution from the “Articles of Confederation”?

“The Stile of this Confederacy shall be 'The United States of America'.”

– Article I of the “Articles of Confederation and perpetual Union”

First of all, what is a “Confederation”; and how does it differ from the “Confederacy”?

So what is a “confederation,” and how does it differ from the “Confederacy”? The website of Princeton University defines both “confederation” and “confederacy” as “a union of political organizations” (see entry on “confederation” and entry on “confederacy”). There are other definitions for each word, but this is the one that applies here. Another meaning of a “confederacy,” noted by their website, is that of “the southern states that seceded from the United States in 1861” (see entry on “confederacy”), which is defined as synonymous in this context with the “Confederate States of America.” It is important to understand this point: This is not the meaning that applies here. However, the similarity between these two words was not a coincidence, as the Confederates chose this name carefully. The southern states intended their “Confederacy” to be a union of independent nations with strong “states' rights,” as you may know. The Southern states rejected the idea of a “powerful federal government” with strong central control, and preferred that each state retain its “independence” and “sovereignty.” This may have contributed to their eventual downfall in the American Civil War, as the squabbling between the states proved to be catastrophic for them (but good for the country that they were trying to dissolve). The lack of centralized control was then believed to be a virtue, but it ultimately seems to have proved something of a weakness. The “Articles of Confederation” shared many of these same weaknesses, I am sad to say. It may have been more like the “United Nations” than the United States of America.

Interior of Independence Hall

The Declaration of Independence created thirteen “independent states” …

However, the Articles of Confederation actually started out: “The Stile of this Confederacy shall be 'The United States of America'.” (Source: Article I) The Articles of Confederation was not the first official document to use the phrase “United States of America,” because the operative paragraph of the Declaration of Independence had a sentence that began: “We, therefore, the representatives of the United States of America, in General Congress assembled … ” (Source: The Declaration of Independence, 1776) The idea that the thirteen states would be united together into a “confederacy” was an idea new to the Articles of Confederation in 1781, and was probably a step in the right direction. By contrast, the Declaration of Independence had said that “these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do.” (Source: The Declaration of Independence, 1776) Unfortunately, each of the thirteen states still possessed most of these powers for themselves under the Articles of Confederation. But by saying that “The Stile of this Confederacy shall be 'The United States of America',” the Articles of Confederation was trying to unite the thirteen states together into a “perpetual Union” (in the words of the Preamble to the Articles).

John Trumbull's Declaration of Independence

… which were only united into a “perpetual Union” under the Articles of Confederation

And a word about that Preamble to the Articles of Confederation: It might be appropriate here to note that it actually said that “To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting … Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.” (Source: Preamble to the Articles of Confederation) This was a far cry from the Preamble to the Constitution, which began with the words: “We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” (Source: Preamble to the Constitution) However, the Articles of Confederation did say elsewhere that “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, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.” (Source: Article III) The parts about “for their common defense, the security of their liberties, and their mutual and general welfare” would find their way into the previously mentioned Preamble to the Constitution (sometimes with some modifications). But when the Preamble to the Constitution was written by a man named Gouverneur Morris, he added the parts about “form[ing] a more perfect Union, establish[ing] justice, and insur[ing] domestic tranquility” (Source: Preamble to the Constitution). I shall talk more about “form[ing] a more perfect Union” when I get to the advantages of the Constitution over the Articles.

Gouverneur Morris

Under the Articles of Confederation, the Congress consisted of only one house (just as before)

Before the American Revolution, there had been several different Congresses in the American colonies. For example, there was the Albany Congress in 1754, the Stamp Act Congress in 1765, the First Continental Congress in 1774, and the Second Continental Congress from 1775 to 1781. During all of these Congresses, the assembly had consisted of only one house; and this tradition would continue under the Articles of Confederation. The Articles were actually debated by the Congress from July 1776 to November 1777, before they were finally approved by the Second Continental Congress on November 15, 1777. But it was decided that the Articles had to be ratified by the state legislatures (rather than by the people), and this ratification was not completed until March 1, 1781. James Madison would later criticize the Articles of Confederation for being ratified by the state legislatures, rather than directly by the people. (But that's a subject for another post.) The new “Congress of the Confederation” (essentially a continuation of the old) was still called the “Second Continental Congress” by the people of that time. It actually met from March 1, 1781 until March 4, 1789; after the Articles of Confederation had been replaced by the Constitution. Only when this new Constitution was ratified would there be the two-house “United States Congress” that we know today (a legacy of the two-house British Parliament). Moreover, it took until 1789 to get this new Congress elected.

A replica of Independence Hall, which is not surrounded by high-rise buildings (that don't belong in the period) the way the real one is today

The federal government had a judicial branch on paper, but not a real one in practice …

In theory, the Articles of Confederation had a judicial branch – or, at least, it did on paper. The Articles of Confederation said that “the United States in Congress assembled” shall have the sole and exclusive right and power of “appointing courts for the trial of piracies and felonies commited on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.” (Source: Article IX) But the reality was far different, because another part of the Articles said something that contradicted that. Specifically, it said that each state retained “its sovereignty, freedom, and independence” (Source: Article II). Thus, the idea of a court system that would be binding on “sovereign” and “independent” states was considered forbidden by the Articles.

The Articles of Confederation and Perpetual Union

There was also no executive branch to enforce laws (even on paper), and no real power to tax!

More importantly, the Articles of Confederation did not contain any executive branch to enforce laws, even on paper. Americans feared powerful executives like King George the Third, and so denied any enforcement powers at all to the federal government. Thus, virtually every other clause (including the clauses about the courts) were meaningless. For example, in theory, the federal government actually had a power to tax under the Articles of Confederation – or, at least, it did on paper. Specifically, the Articles said that the common treasury shall be supplied by the several states “in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint” (Source: Article VIII). The Articles of Confederation further said that “The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.” (Source: Article VIII) But the reality was far different, because the federal government could not enforce these tax clauses to gain the needed revenue. In practice, these quotas and requisitions were never filled. Thus, the biggest weakness of the Articles may have been this lack of real taxing power.

King George the Third

No power to regulate trade, either; and states retained every power not “expressly” delegated

In theory, the federal government had the power to regulate trade under the Articles of Confederation – or at least, it did on paper. It said that “the United States in Congress assembled” shall have the sole and exclusive right and power of “regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits [shall] be not infringed or violated” (Source: Article IX). But the reality was far different, because the Articles of Confederation also said 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.” (Source: Article II) As noted earlier, this was a major weakness that made every other clause in the Articles moot. To make matters worse, the Articles said that “nor shall any alteration at any time hereafter be made” to the Articles of Confederation, “unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State” (Source: Article XIII). The unanimity required here was virtually impossible to achieve in practice. Thus, the prospects for “amending” the Articles looked somewhat bleak when the Constitution was written. (More on that in my later post about the Constitutional Convention.)

Constitutional Convention at Philadelphia, 1787

Secession from the Union would have been illegal, even under the Articles of Confederation …

That being said, after the Civil War, the Confederate president Jefferson Davis would later try to justify “seceding from the Union” by discussing some of these clauses in the Articles of Confederation. But there were a number of problems with this argument, among them the fact that the full title of the Articles of Confederation was “the Articles of Confederation and perpetual Union.” (Source: Preamble to the Articles of Confederation) – something that Jefferson Davis himself would later acknowledge in his memoirs. Indeed, if I may say so here, how could the United States of America be “a more perfect Union” under the Constitution (as the Constitution's Preamble said), if it was not also a “perpetual Union” like its immediate predecessor? Ironically, Davis seems to have considered this argument somewhat in his memoirs, but (for reasons that are not entirely clear to me) nonetheless rejected it; declaring that it had “no foundation in the Constitution itself.” (Source: Davis's memoir “The Rise and Fall of the Confederate Government,” Appendix H) One shall give a full response to some of these erroneous arguments about the Constitution, in a later post about “states' rights” in this series. For the purposes of discussing the Articles of Confederation herein, suffice it to say that his “pro-secession” argument is not supported by the historical evidence. Even under the Articles of Confederation, many of the South's rebellious actions during the Civil War would have been illegal even then, as I will show below.

Jefferson Davis, who tried to justify "seceding from the Union" by discussing the Articles of Confederation

… as the following clauses from the Articles show

For example, the Articles said that “No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled” (Source: Article VI) – something which the rebellious states clearly violated when they formed a “Confederacy” amongst themselves. The Articles also said that “No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies” (Source: Article VI) – something that the rebellious states clearly violated when they waged war against the federal government. And before someone argues that the South was “actually invaded by enemies” during the Civil War – namely, the North – another part of the Articles of Confederation actually said that “If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall … be delivered up and removed to the State having jurisdiction of his offense.” (Source: Article IV) Thus, treason was considered a crime even under the Articles of Confederation; and the idea that the South was “actually invaded by enemies,” in anything like the intended legal sense of this phrase, is thus somewhat hard to support. The Articles also said that “the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual” (Source: Article XIII) – not a Union that could be “dissolved” anytime you were dissatisfied.

Early 13-star American flag, commonly called the “Betsy Ross flag”

Did James Madison contradict himself in the Federalist Papers about the Articles?

The Federalist Papers contain a lot of words about the “Articles of Confederation,” as you might imagine, because it was the immediate predecessor to the “proposed Constitution.” It was the document that they were trying to replace at this time. In one of these essays, James Madison actually emphasized the Constitution's novel aspects, by saying that “The novelty of the undertaking immediately strikes us. It has been shown in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it.” (Source: Federalist No. 37) This is probably accurate, and reflects the innovative nature of the “proposed Constitution.” But there were many at this time who wanted to keep the old system of the “Articles of Confederation.” The Articles were still very popular at this time, since many people wanted to keep the status quo going into the future. Madison thus said in a later essay that “The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation.” (Source: Federalist No. 40) Are these things a contradiction? I shall examine this question below.

James Madison

Perhaps not …

Some have supposed that if “the existing Confederation [was] founded upon principles which are fallacious” (as James Madison said), then the Constitution must be fallacious as well; because James Madison also said that the Constitution was an “expansion of principles which [were] found in the Articles of Confederation.” But the truth of the matter, it would seem to me, is that the “Articles of Confederation” were not founded on just one set of “principles” – they were founded upon some principles which were sound, and other (different) principles which were “fallacious.” The Constitution, in other words, was an “expansion” of the good principles found in the Articles of Confederation that were sound, and a rejection of the bad principles found in the Articles of Confederation that were “fallacious.” Both of these statements can be true, if you take the Articles of Confederation to be founded on both good and bad principles. I might note that Madison also said in one of these essays that “The misfortune under the latter system [the Articles] has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old.” (Source: Federalist No. 40)

James Madison

They had many good provisions that influenced the final Constitution, and many bad provisions that needed to be replaced

Thus, the Articles seem to be something of a mixed bag. They had many good provisions which influenced the final Constitution, and many bad provisions that needed to be replaced. But it would take a rebellion against the government of Massachusetts before the shortcomings of the Articles became obvious to everyone. (More on that in the next post of this series.)