THE ARTICLES OFCONFEDERATION

Topic #5

Original U. S. Governments• The Declaration of Independence did not create a new

U.S. government.– Nor did prescribe what form such a government

should take; however, it did prescribe that• it should be based on the consent of the governed;• it should secure, not abridge, natural rights; and• it should lay its foundation on such principles and organizing

its powers in such form, as to the peoples shall seem most likely to effect their Safety and Happiness.

– It was generally understood that the “consent of the governed” was given by

• convening a group of (directly or indirectly) elected delegates • who would draft a constitution (in effect, a social contract)• that would be subject to some form of popular ratification (by

which the constitution/social contract would be agreed to)– It was further understood that the existing states

would remain in existence as significant political entities.

Original U. S. Governments (cont.)• How was the new U.S. governed?

– Prior to the Declaration of Independence:• Even the colonies had considerable self government:

– elected local/town governments– popularly elected (lower house, at least) colonial legislatures– appointed (royal) governors– built-in conflict between legislature and executive

• Extent of franchise:– far from universal (but much more extensive than in Britain):

primarily adult white males owning some property– voting (and office-holding) qualifications varied across colonies

and were often “scaled” to office

– The revolution accelerated “democratic” trends in popular sentiments and political institutions.

• Opinion was “radicalized”• Revolutionary leaders sought popular support.• Exit by loyalists.

Original U. S. Governments (cont.)

• After the Declaration of Independence:– Colonial governments => state governments– States held constitutional conventions to draft new

constitutions.– Typically:

• Bicameral legislature (both houses elected)• Governor (a weak office, usually selected by the legislature,

with a short term and few powers)• Suffrage and office-holding qualifications generally

liberalized (but still not universal)

Original U. S. Governments (cont.)

• At the national/continental level:– The provisional Second Continental Congress remained in

session and• supervised the war effort (not very effectively), and• drafted a set of Articles of Confederation and sent them to

the states for ratification in November 1777, • which were not ratified and put into effect until March 1781.

• The Articles of Confederation are commonly and correctly said to have provided for only a “weak” central government.– But it is important to understand precisely the most crucial ways

in which the A. of C. central government was [too] weak.– To help understand this, we revert to social contract theory.

A Constitution as a Social Contracts

• The social contract theory of Hobbes and Locke pertains to individuals in a state of nature (and to a perhaps not very realistic-seeming thought experiment).

• We can apply the same logic more realistically to collectivities (e.g., states vs. individual persons) that lack a central government:– States => U.S. government;– European nations => European Union– All nations => United Nations (or a stronger “world

government”)

Constitutions as Social Contracts (cont.)

• Consider the formation of larger political union in social contract theory terms.

Consolidation Dimension _________________________________________________

| | | |

anarchic confederal federal unitary

system system system system

• One extreme: anarchic system = no union• Other extreme: unitary system = total union

– A “Hobbsian social contract” among states– In effect, state governments agree to abolish themselves and

create an all-powerful central government.

Constitutions as Social Contracts (cont.)

• Intermediate positions on the consolidation dimension: (con)federal systems.– Such systems result from social contract among

states that is “Lockean” in nature, in that• the states agree give up some powers and functions and

give them to the central government, but at the same time• the states retain other powers and functions and deny them

to the central government, so• the central government has some powers but they are

limited, and• there are two independent and distinct levels of government,

– i.e. the states and the central government.

Constitutions as Social Contracts (cont.)• In U.S. constitutional language:

– Delegated powers are the powers given up by the states and delegated to the central government.

– Reserved powers are the powers not given up by the states and not delegated to the central government.

– In anarchic systems, all powers are reserved and none are delegated.

– In unitary systems, all powers are delegated and none are reserved.

– In con/federal systems, there is some balance between delegated and reserved powers.

• In this respect, there is no fundamental difference between confederal and federal systems.

• The difference between confederal and federal systems pertains to how delegated power are exercised and how the central government operates.

Confederal vs. Federal Systems• The Articles of Confederation (1781-1789) created a

confederal union of states,• In contrast, the subsequent U.S. Constitution

(1789-????) created a federal union of states.• They were similar in that both entailed a balance

between delegated and reserved powers.– The balance between delegated and reserved powers was

somewhat more favorable to the central government under the Constitution than the A. of C.

– But this is largely a matter of degree.

• The fundamental difference between the A. of C. and the Constitution (and between federal and confederal systems generally) pertains to how the central govern-ment exercises its delegated powers.

The Articles of Confederation

• Under the A. of C., the central government may be characterized as “government by the states and of the states.”

• The A. of C. provided for “government by the states” in the following respects.– Members of the Confederal Congress were not elected

by the people of their states.• Rather they were appointed by their state

governments; moreover – they did not have fixed terms, so– they could be recalled at any time, and– they were paid by their state governments, not the U.S.

The Articles of Confederation (cont.)• Voting in the unicameral Confederal Congress:

– Each state delegation in Congress cast one vote (regardless of the size of the delegation or the population of the state).

• State delegations could have 2-7 members.– A 7/13 (simple majority) vote was sufficient only for procedural and

minor questions.– A 9/13 (supramajoity) vote was required for major questions

including $$$.– A 13/13 (unanimity) vote was required to approve amendments to

the A. of C.

• Congress (“The United States in Congress Assembled”) was the sole organ of the central government.– There was no central government executive or judiciary.– Congress had an “executive committee” (Council of States) that

remained in session year round.– Congress (in particular, the Council of States) supervised the

several central government departments, e.g., Treasury, Army, Navy.

The Articles of Confederation (cont.)• A. of C. provided for “government of the states” in the

following fundamental respect.– Congress could not directly exercise most of the

powers delegated to it.– For example, the delegated powers of Congress

included conducting foreign affairs and providing for the common defense.

• Exercising these powers requires money and manpower.• But Congress itself could not lay and collect taxes.

– Only states had the power to lay and collect taxes.• Congress had to lay assessments on the state governments (in

accordance with an agreed upon “quota of contribution”), asking the states transfer funds to the U.S. Treasury.

• Likewise, Congress could not recruit (let alone conscript) men into the U.S. armed forces and likewise had to rely on states to provide manpower and/or organize their own militias.

The Articles of Confederation (cont.)

– Congress could make treaties with foreign nations (e.g., with Britain regarding property claims).

• But Congress had to rely – on state legislatures to pass appropriate laws to carry out the terms of a

treaty, and – on state courts to enforce them.

• In summary, there were no direct connections, in terms of either representation or authority, between the central government and the people of the United States.– See the following diagram

• This was the critical weakness of the A. of C.

Summary Confederal Diagram

Hamilton, Federalist 16

• Hamilton’s Federalist 16 is a strong critique of the Articles of Confederation and of confederal systems in general.

• Confederation may be styled the parent of anarchy.• What if a state does not meet their obligations?

– Congress cannot put a state in jail for failure to pay its assessment.

– All it can do is resort to force against the recalcitrant state(s).– But the guilt of all [states] becomes the security of all.– It seems to require no pains to prove that the States ought not to

prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government.

Hamilton, Federalist 16• Yet such perpetual resort to force is the plain alternative

involved by those who wish to deny [the central government] the power of extending its operations to individuals.

• The central government must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States.

Articles of Confederation (cont.)

• By the mid-1780s, there was a widespread view that the A. of C. were not working and the confederation was unraveling.

• This in due course led to a convention that drafted a new constitution that did endure.– The new constitution was based on federal, rather

than confederal, principles.

Summary Federal Diagram