HIST 116: The American Revolution

Lecture 20

 - Confederation


This lecture discusses the ongoing political experimentation involved in creating new constitutions for the new American states. Having declared independence from Great Britain, Americans had to determine what kind of government best suited their individual states as well as the nation at large; to many, this was the “whole object” of their revolutionary turmoil. Different people had different ideas about what kind of republican government would work best for their state. Should there be a unicameral or a bicameral legislature? How should political representation be organized and effected? How far should the principle of popular sovereignty be taken?

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The American Revolution

HIST 116 - Lecture 20 - Confederation

Chapter 1. Introduction: Confederation [00:00:00]

Professor Joanne Freeman: So today I’ve titled the lecture for today “Confederation,” but in a sense I’m going to be talking about something larger than that, and by the end of the lecture I’ll be talking about the Articles of Confederation. I’ll talk a little bit more about them on Thursday. But as I mentioned last Thursday, last Thursday’s lecture, today’s lecture and actually some of the few that are left — that are still to come — are all in one way or another dealing with big questions that were left looming after the fighting of the Revolution had passed. And we dealt with one of them on Thursday and that was the question of what would happen to American society, and I looked at that in a very specific way but I was touching on that broader question, which is: okay, so we’ve had a Revolution; what does that do? And we sort of explored some things it did or didn’t do.

Today I’m going to discuss a different big question left over after the fighting and actually going on even during the fighting, and that is the question of what would happen to American governance; how would independence from Great Britain actually affect the way that the states individually functioned and the way that they were governed together? And it’s not — obviously it’s not just a question of little political technicalities because, as people at the time really knew, aside from the obvious task of winning the war and gaining independence, it was really political change. It was the shaping of new state governments and the creation of some kind of a new national or American government that would most shape the real outcome of the Revolution as a whole.

As Jefferson put it right in the middle of the Revolution, “In truth [a new government] is the whole object of the present controversy.” See, I love finding quotes from Founders in which I think to myself I need a Founder to say that politics is important. Oh, there’s Thomas Jefferson now. [laughs] A new government “is the whole object of the present controversy; for should a bad government be instituted for us in [the] future it had been as well to have accepted at first the bad one offered to us from beyond the water without the risk and expence [sic] of contest.”

So basically, as people at the time well knew, it was in the creation of governments in the states and one for all of the states that the Revolution ultimately would be lost or won. We’re going to hear this — people talking about the 1780s, when they’re a little alarmed at what is happening in the 1780s. They’re going to repeat that sentiment, like: ‘uh oh, we thought we won and now we’re going to lose because everything’s going to fall apart because of problems of government.’ So on a really immediate level, Americans knew that if they wanted to win the war in a broader sense, they had to have effective governments. And obviously also in the longer term, they needed effective governments to survive, to prosper, to last more than five years. It’s fascinating when you look at letters between these people in the first couple years under the Constitution, and they’re really not convinced it’s going to last more than a few years: nifty little experiment; maybe it’s not going to work.

Chapter 2. An Atmosphere of Experimentation with Governance [00:03:12]

So people understood government is the key. So when the colonies declared independence in 1776 and these former colonies became states, they needed to create new state governments that would basically write the royal government out of their form of governance. And they — each state now needed to come up with a new way to govern itself, or some decision about how they were going to govern themselves. So from roughly 1776 through the 1780s, the individual states, and as we’ll see in a little bit, the Continental Congress, grappled with trying to figure out the best mode of establishing new governments according to prevailing hopes and ideals.

And this whole period was really a remarkable period of political experimentation. As Benjamin Franklin said, “We are, I think, in the right Road of [the spirit of] Improvement, for we are making Experiments.” Right? There’s a man of science. Basically, in this whole period, not just the Revolution but a little before and certainly after, fueled by the optimism of the Revolution and fueled by the whole spirit of the Enlightenment, this was an age of experiments in government.

And — I always find when I try to get across what it felt like at that time, how people thought about politics at that time, I’m always sort of trying to figure out some great metaphor, something that I can say, and I always come back to the same comparison, which somehow, at least in the last five or six years, has always been true. And that is, in a sense to get a feeling for what it felt like to think about politics and experience politics in the late eighteenth century, think about how we now experience and think about technology. Okay, because basically they could announce tomorrow that Apple was secretly coming up with a device that allows you to see inside every home in America, and we would go, ‘Oh, interesting,’ but we would accept that maybe that exists. There’s — On our part there’s a sort of expectation that new technological innovations are popping up all the time, and they might have us doing or thinking things that we never did before. We’re communicating in new ways. Technology I think for us is this realm where anything can happen and things are happening all the time and we’re adjusting and we’re excited and we’re interested. And that’s where a lot of the innovation is now with people sort of trying to pour — every app-maker in America — people creating and innovating and devising and creating. And that kind of spirit — transport that back to the late eighteenth century. That’s the way that people were feeling about government.

That was the period in which government was doing all of those things. There were innovations. There were — It was experimental. People didn’t know what was going to happen. They were challenging rules of government and sort of seeing what would happen. It was — Particularly for people who were interested in politics, it was a fascinating sort of wonderful time because all of these weird things were happening and they were big, literally constitutional things on a really big level.

And you can hear this kind of excitement in a statement that John Adams wrote in 1776 in a pamphlet that I’ll be discussing in a few minutes, and it’s titled Thoughts on Government, and Adams wrote: “You and I, my dear Friend, have been sent into life at a time when the greatest lawgivers of antiquity would have wished to have lived. — How few of the human race have ever enjoyed an opportunity of making an election of government … for themselves or their children.” People knew that what they were doing at that time was a big deal, and they knew it could effect enormous change.

So what I’m going to be talking about today, in that spirit, are these experiments in government — people experimenting in government — and I’m going to talk about these kinds of experiments on two levels. First, I’ll talk about state constitution-making and how people were trying to figure out what to do on a state level, and then I’ll discuss the process of joining all of these states together into some kind of a confederation or, as the Articles of Confederation themselves put it, a “league of friendship.” That’s how the government defined itself — the Articles — a league of friendship.

Chapter 3. Congressional Encouragement of New State Constitutions [00:07:37]

But I want to start with state constitutions — and the fact is, although to us we think “constitution” is sort of the big, looming thing that’s important in that period, to people at the time, certainly in the middle of the Revolution, it was really in the drafting of state constitutions that they really thought the future of the American people was going to be decided. Even before the formal Declaration of Independence in July of 1776, already people in the colonies had been giving some thought to the fact that they were going to need new state constitutions because already things were unstable, sources of authority — royal sources of authority — were not necessarily in place, but it was unclear what was in place instead of them. So people already saw the need for some kind of new legitimate source of authority and they began thinking: ‘okay, well, if we do end up being independent we need some kind of a new government so we’d better start talking about it now because sooner or later, probably sooner, we’re going to actually have to implement something.’

So as early as the beginning of 1776, states began considering what they should do about the unsettled state of governance in their own colonies. And some colonies actually wrote to the Continental Congress asking for advice on what they should do about governance in their colony. And there were some people in the Continental Congress that suggested: ‘well, you guys should take some kind of an interim measure; things aren’t sorted out yet with England’ we don’t know what’s going to happen — sort of do something to tide you over until we figure out what’s coming next. But there were others who were more radical in their politics in the Continental Congress who thought that the colonies actually should really establish new political institutions, basically new constitutions. More conservative Congressmen argued that adopting new forms of government would be as good as declaring independence. Even if independence hadn’t been declared, if the colonies start creating their own constitutions, these conservatives are arguing, that’s just as good as saying you’re independent and it’s going to make sort of reconciling with England even harder if you begin to do that.

Even so, in May of 1776, the Continental Congress adopted a resolution saying that colonial assemblies should adopt new governments. And just as the conservatives in Congress argued, certainly to John Adams and many others, that resolution was what really was the instrument of American independence. That’s — To Adams, he saw that resolution as a really key turning point when the Continental Congress said to the colonies becoming states, ‘I think it’s time that you should devise your own constitutions.’

Now it’s important to note, the Continental Congress wasn’t in the lead here. What happened is that colonies were asking them what to do and Congress sort of responded and figured out what it thought and then made a recommendation. So states were thinking about government before the Continental Congress necessarily did anything about it. The first new constitution had already been drafted in New Hampshire in January of 1776, making it the first written constitution drawn up by one of the colonies without consultation with or approval of the Crown or Parliament. So the states are all occupied with constitution-making, and that continued through 1777.

Now at first, people in the Congress were undecided about whether maybe it would be smart to recommend to all of the colonies one model constitution; maybe they should come up with one model, and sort of send it out and say, ‘Here’s what we think the best kind of a government would be.’ But after a brief debate, the idea went nowhere, and that’s basically for two reasons. I think one of them is really obvious, which is what is the likelihood that everybody in that Congress was going to agree on what a model constitution ought to look like for all of the states? Okay, not. On a purely pragmatic level, that would be very hard to do.

But second and more important than that, the Congress ultimately felt that people in each colony or each state should really be adopting and devising their own governments that really suited their own character, their own habits, their own specific needs — local conditions. So really, it was the colonies themselves who were best suited. It wasn’t a smart idea to the Congress ultimately for them to be imposing a model anything, since part of the purpose of the Revolution was for people to devise governments that suited them better.

And in making this suggestion, that each colony should be free to create a constitution that reflected their particular values and habits, the Congress was pretty much acting in accordance with a prevailing belief at the time that there was, or certainly that there should be, an intimate connection between the values of a people — between the habits of a people on the one hand and between their instruments of government and systems of law on the other. It’s a general assumption. One shapes the other. One should shape the other. And that’s part of the assumption that the Continental Congress is acting on.

But just because Congress didn’t design a model constitution, it doesn’t mean that individual Continental congressmen didn’t begin thinking about what ought to be happening in their own states back home. And in fact, so many Continental congressmen became so obsessed with the idea of state constitution-making for their own states that some people feared that some of the basic demands of the Revolution were falling by the wayside because everyone was saying, ‘Oh, well, back home they’re making up a constitution. That’s amazing and I have some ideas about that. Maybe I should even go back there. Okay. Maybe not, but I’ll send them some ideas about what they ought to be doing.’ So these delegates in the Continental Congress are extremely interested, for really obvious reasons, in what’s being devised back in their home colony, their home state.

Chapter 4. Adams’s Thoughts on Government: Support for Bicameral Legislature [00:13:39]

One result of this obsession with constitution-making was this pamphlet I mentioned a few moments ago, which ends up being an important and influential pamphlet written by John Adams that’s titled Thoughts on Government. Now Adams had long been really interested in constitutional issues, and he actually had something of a reputation for being someone who was pretty knowledgeable on the subject. So when these states began talking about new constitutions beginning at the very, very end of 1775 going through 1776, several men from different states came to him to ask his advice: ‘Hey, you’re the guy who knows a lot about constitutions. What do you think we ought to be doing, Mr. Adams?’ So Adams — so many people asked him, that he wrote up what he called a sketch of what a new constitution might look like. And he gave the sketch out to a few people. ‘Well, you want to know what I think a new constitution ought to look like? Here you go, my best idea.’ Well, obviously, if everyone’s casting about like: ‘I don’t know what to do, what should I say’ — and one guy pipes up and says, ‘I think this is a pretty good idea,’ not surprisingly other people went to Adams and said, ‘Hey, I’d like a copy of that sketch too. I’d like to see what your model constitution looks like.’

So by April of 1776, Adams had turned this sketch into this pamphlet. The full title of his pamphlet is one of these great eighteenth-century titles, Thoughts on Government Applicable to the Present State of the American Colonies in a Letter From a Gentleman to his Friend. We can call it Thoughts on Government. [laughs] Now besides the obvious practical use the pamphlet, and I’m going to come back to some of the things he recommends in a minute, Adams also intended it to be a response to the concluding section of Thomas Paine’s Common Sense published a few months earlier. And you’ll remember the wonderful opinion that John Adams registered on Common Sense, quote, “A poor ignorant, Malicious, short-sighted, Crapulous Mass.” [laughs] Thank you, John Adams.

So Adams basically thought that that final section of Common Sense was irresponsible and impractical; it was giving ideas about forming a new government that didn’t make sense. And if you remember, Paine had said that there should be a unicameral — a one-house legislature for each of the colonies, and that would be — all of those would be subordinate to a unicameral legislature like the Continental Congress. No level of government would have an independent executive. So basically as Adams is thinking about it, Paine is just tossing off separation of powers and the balance of powers and saying, Eh, we don’t need to think about that. We should be thinking about the people.’ Right? ‘We should be thinking about making a government responsive to people,’ which is a nice idea, but Adams thought, in reality there’s no way that that’s going to work.

Adams and others, though they valued what Paine had to say obviously about independence, did not appreciate that whole plan. And in Thoughts on Government, Adams argued that whatever the states did with these new governments they should at least preserve the best of Anglo-American traditions of government, and particularly, separation of powers. Adams really did not like the idea of having a one-house assembly and having no executive at all. He argued that there was no way that that could work well; a one-house legislature would never be effective; it could never do anything executive; it could never do anything judicial. As he put it, a one-house legislature could not act as an executive power, quote, “for want of two essential properties, secrecy and despatch.” Okay. That’s what executives need to be; no congress will ever manage those two things.

He also said that a one-house legislature couldn’t be a judicial power because it was “too numerous, too slow, and too little skilled in the laws.” And just as bad to Adams, a unicameral legislature was just unstable in and of itself. As he put it, it was “liable to all the vices, follies, and frailties of an individual; subject to fits of humor, starts of passion, flights of enthusiasm, partialities, or prejudice, and consequently productive of hasty results and absurd judgments.” I think that sounds like a quote from a guy who’s really tired of being in congresses. He was like: ‘I know what congresses do. [laughs] This unicameral legislature, bad idea.’

He really preferred a bicameral legislature, both houses of which would elect a governor. The governor would have a veto over legislation, and could appoint judges and some other officers with the consent of the upper house. Judges would have tenure for life during good behavior. And all officials apart from judges would be elected annually to prevent an aristocratic ruling class from rising up, and to keep politicians humble because they’d have to go home every year and get reelected, and to Adams that would successfully keep politicians humble. Rotation in office would be something that would keep the right spirit of government going.

Now it’s hard to say how much direct influence Thoughts on Government had. It’s always very hard. You always want to say, ‘Wow. These five states were extremely influenced.’ It’s hard to say that, but the fact is that most of the state constitutions ended up being in hailing distance of what Adams suggested in that pamphlet and he did receive letters from a number of friends saying: ‘well, actually that was helpful. Thank you very much, John Adams. That was actually very helpful.’ So we have this little moment in which John Adams must have been smiling because he’s getting recognition. Right? ‘Yay.’ He’s like: ‘I wrote a good pamphlet and they’re saying thank you. Yay.’ Poor John Adams.

Okay. So, all this talking about new governments. The fact is, as I suggested when Adams says we should be preserving the best features of Anglo-American governance, these state constitutions generally did preserve some basic features of Anglo-American governance. So take for example a bicameral legislature, obviously resembling Parliament’s House of Commons and House of Lords. Obviously, America did not have Lords and Commons in quite the same way, but the idea remained. You had two houses and you had different sets of people in the two, although it was not entirely clear what that meant in the American example, and this was actually a source of confusion.

Chapter 5. Core Tenets and Ideas in the State Constitutions [00:20:12]

When the Constitution first starts, with this new bicameral legislature, people aren’t sure if the Senate is kind of like a House of Lords, meaning that the people in the Senate were sort of higher up than the representatives. Should they have special privileges? Should there be — Should they get a higher salary? Are they “special people” in comparison to the House? Should we really be making that kind of difference between the House and the Senate? And you can see this throughout this period. You can see it in somewhat ridiculous ways, but you can see how people were so focused on it.

And one example of this is from 1790 — so one year of government — and the Senate wrote some kind of a bill, and they included I suppose names of people who had drafted the bill, and before the names of the people they put “the honorable,” like “the honorable messieurs,” and they sent this to the House. The House got this bill. They didn’t even look at the content of the bill. They just looked at the bill. ‘Why are the Senators calling themselves “the honorable?” We don’t like that. What’s it suggesting about who they are? Do they think they’re better than us? No, they’re not better than us.’ So the House — before it votes on the content of the bill — votes to cut those two words out. Right? That’s not going to be on the document, none of this honorable stuff. Then they pass it, and it goes back to the Senate, and the Senate passes another amendment in which they take their names off the document because they don’t want them printed without “the honorable” attached to them. Okay. A seemingly little, trivial, petty thing, but that clearly two parts of the legislature were focused on, and there was even a letter from Madison — and I can’t remember who he was writing to — and he says, ‘This seems trivial. [laughs] It really isn’t because it’s getting down to these kind of basic questions, of exactly what is the House and what is the Senate, and what’s their relationship to the House of Lords, the House of Commons.’ So a bicameral legislature is one tradition that Americans held on to, generally speaking, and I’m going to come back to an exception.

A second traditional assumption that was represented in the new state constitutions concerned the need for property requirements for voting and for holding elected office. And the reasoning there being, men who owned property were independent men, so they could vote for themselves as they thought rather than being dependent on someone else and thus maybe having to vote in a way that somebody else wanted them to vote. And likewise it was thought that if you had literally financial investment in a community, you were the people best qualified to affect that community through elections. So though the Revolution would inspire many states to reduce the level of the property requirement for voting, the fact is that those kinds of restrictions remained in place. And on average, in the new state constitutions, roughly there was an increase of fifteen percent in the number of adult white males voting — which in a sense, compared I suppose with England, maybe seems a little bit — somewhat substantial, if not revolutionary in scope. So that was held on to, as well, as something that people felt comfortable with. It was a precedent, a tradition that made sense to them.

Now there were other ways in which these constitutions — these state constitutions — rather than reflecting traditions, Anglo-American traditions, instead more obviously reflected the immediate impact of the Revolution. And the first and most obvious example of that is the simple fact that they’re writing constitutions. Right? Americans were revealing their recognition of what they believed to be the instability and lack of security in unwritten constitutions. As they looked at Great Britain, they thought, we don’t like that system very much. We want everything in writing. We want it all on paper. Americans wanted to fix the principles of their new governments in writing in a form that was distinct from and superior to mere legal statutes.

You can also see the immediate impact of the Revolution in the three main ideas that were at the core of most of these state constitutions, three sort of basic ideas. Number one, most of these constitutions were premised on the idea that they had to be grounded on natural rights. And you can really see this belief reflected in the declarations of rights that were appended to most state constitutions. And again, there is a lot that’s traditional in these reclarations of rights, because a lot of the rights that are being declared in these declarations are traditional English rights, but they’re being put in — on paper in these documents and then attached to these sort of constitutional statements creating whatever these new states were going to be. Most of these declarations of rights specified things like the right of trial by jury. Right? They thought back to the Revolution. They remembered those Vice Admiralty courts, not popular, so now they were like: ‘okay, we want the right of trial by jury; we want the right not to be deprived of life, liberty and property through the protection of due process of law; freedom of speech, freedom of the press, and in some states like Virginia, freedom of religion — again, rights that are familiar to us, rights that they’re putting down on paper and attaching to constitutions at this moment in time. So declarations of rights were shared by constitutions, this sort of idea that there are these natural rights that need to be written down and memorialized, one of the things that all of these state constitutions generally share.

The other two main ideas that were at the core of these constitutions are related. So these — the last two ideas are: most constitutions declared that representation is based on consent, again, obviously coming right out of the Revolution; consent is important in the process of representation. And then the third and last basic idea related to that is — and maybe it’s the most central one of all — sovereignty rests with the people; the people are sovereign. As the Virginia Constitution declared, and a lot of the other states in one way or another rephrased it, but said something like it: “all power is vested in, and consequently derived from, the people; that [the] magistrates are their trustees and servants, and at all times amenable to them.” The main question about this was, as John Adams put it at the time, “to what extent shall we carry this principle?” Like, ‘nice idea. What does that exactly mean? How is it going to actually boil down into what people are actually doing? How beholden should the government be to the people?’

And this varied in different states depending on a number of different kinds of factors. One dramatic way in which you could really see the sovereignty of the people being emphasized in these new state constitutions is through the way in which they curbed executive power. They curbed the power of state governors. They made state governors less important. They usually made the lower house of their legislatures more important. They often made the upper house of their legislatures less important. They’re really trying to limit power, to curb power. Again, that’s obviously really connected to what they had just experienced in the Revolution, which felt to them like this sort of monarchical unlimited power that they had no control over. So they’re really worried about executive power, fear of a concentration of power, fear of executive power like the power of the monarch that they had just — or were at least, were in the process of breaking away from. So as I said, almost every new state constitution increased the power of the lower house, decreased the power of the governor, decreased the power of the upper house of their legislatures.

And, as we’ll see in a moment, the national government that ends up being created under the Articles of Confederation follows the same general pattern. They just eliminate executive, and they don’t have a judicial branch either. So basically, everyone’s really scared of executive power, of centralized power at this point. Okay. So summing up what I’ve just been discussing, in essence: Most new state constitutions shared a few basic institutional features. They had a bicameral legislature. They had a weak executive. They had rotation in office. They had — As far as principles go, a lot of them at least had declarations of rights; the idea that representation should be based on consent; that the government rests on the people — that the people are sovereign; a somewhat broader electorate voting in annual elections.

Now that said, the most extreme constitutional revisions actually took place in Pennsylvania, and Pennsylvania is really where the constitution ultimately reflected the most radical impulses of the Revolution. The new Pennsylvania constitution had no property requirements for voting, it had a one-house legislature, and it had some special features that clearly, to the people who were devising that constitution, were aimed at making the government as responsible to popular consent as possible. So for example — and this is kind of wild to me. Imagine how many laws would actually pass if this is the case. For a law to become a law in Pennsylvania, a bill had to be passed in two consecutive sessions of the legislature, so a bill had to be passed twice. So — and between those two sessions, the politicians who were passing the bill had to go home and explain it to their constituents. So you would pass a law. The representatives would go to their constituents and explain why they liked it, and then they’d have to go back and pass it again. Right? Obviously, the idea being: okay, these people are really beholden to their constituents and nothing’s going to happen unless the constituents really approve of it.

The Pennsylvania constitution also created this nifty little sort of body called the Council of Censors, and this Council of Censors was kind of like a big grand jury. It would be elected every seven years. And the job of the Council of Censors was to evaluate all aspects of government action. So basically, they create this little body, and the job of it is to just police government and make sure that everything is above board and operating in the way it’s supposed to be operating. So you can really see, in comparison with what I was just saying about the sort of generality of these state constitutions, Pennsylvania really has an extreme reaction to the experience of the Revolution against what the colonists perceive to be as tyranny. So in a sense, if you think of ideas about government as being kind of a pendulum, and on one end you’ve got sort of British monarchical centralized power, in Pennsylvania, boy, that pendulum went way over onto the other side. Like, ‘we don’t want any centralized executive power; we are just going to be over here sort of experimenting with this interesting government that we haven’t ever had one like it before.’ And, as we’ll see as we look at what happens over the next ten, fifteen, seventeen years, the Constitution in a way represents a midpoint between these two ends of the spectrum.

One last point I want to discuss about state constitutions before we get into the Articles. While all of this state constitution revision was taking place, there were actually two states that were not taking part in it, not out of protest but because their colonial charters actually had in a sense been more radical than the other colonies’ to begin with, and of course they are Connecticut and Rhode Island. Continuing theme, Connecticut and Rhode Island. Their colonial charters had basically made them self-governing already in — on a certain level. So they didn’t have to do dramatic changes to make them into state constitutions. So they basically — Rhode Island and Connecticut — basically preserved their colonial charters as constitutions and didn’t really change them until into the nineteenth century.

Chapter 6. The Development of the Articles of Confederation [00:32:31]

Okay. That gets us out of the world of state constitutions and into the world of creating some kind of government for the new union of American states, and that ends up being the Articles of Confederation. Now on July 12, 1776, just after they had declared independence, the Continental Congress also was trying to create some kind of a proposal for a new national government. And between 1776 and 1777, the Continental Congress drafted the Articles of Confederation.

And the Articles are the document that literally created the United States of America. They literally gave that name to the United States of America, but it’s important that — to note that they actually meant that really literally. We sort of don’t think of what that phrase means, but it was meant really literally. In the context of what I’m talking about now, what that said was: this was not one consolidated nation. This was “united states ” — what the articles created; it united some states together. That’s what that phrase literally meant. As John Adams explained later, they never thought “of consolidating this vast Continent under one national Government” but instead erected “a Confederacy of States, each of which must have a separate Government.” So when thirteen free and independent states had defeated England and now had to figure out how to come together, they were not thinking of one big unified republic at this point. They really definitely were not, and that’s — the Articles of Confederation went along with that thinking. It did not create one unified government; it did not bond people together in anything other than a loose league. The Articles created a loose league of individual republican governments.

Now if, as the founding generation assumed, absolute power corrupts absolutely, then the Articles of Confederation was a very virtuous form of government because under the Articles, the Confederation Congress had almost no power to enforce its will at all. The newly-created Confederation was almost more of a United Nations than a central governing institution. As the Articles themselves stated, they were intended to create, quote, “a firm league of friendship … for their common defense, the security of their Liberties, and their mutual and general welfare.” The Articles were basically a pact between thirteen sovereign states which agreed that certain powers would be delegated to this new central government for very specific purposes, but these thirteen sovereign states retained all powers not expressly delegated by them in the Articles.

So under the Articles, the national government consisted of a one-chamber national Congress elected by the state legislatures. Each state had one vote. Congress could request funds from the states but it could not enact a tax of its own without every state’s approval — how likely is that to happen? — so it could not really make its own taxes. It could not regulate interstate commerce between the states. The Articles did not provide for any kind of an executive branch or any kind of an executive character at all. Instead, Congressional Committees oversaw anything having to do with finance or diplomacy or military affairs. There was no judicial system by which this new national government could compel allegiance to its laws.

So basically as far as the powers of Congress were concerned, the Confederation Congress was kind of filling the place of the imperial system. It could regulate foreign affairs. It could declare war with foreign countries. It could negotiate peace treaties. It could fix standards for weights and measures. It could manage Indian affairs. It could borrow money although it couldn’t really tax. Basically, the Confederation Congress had power over war and foreign affairs and the states maintained control over what they called “internal policing.”

Now it’s important to realize that in the context of the time when they were created, the Articles of Confederation actually make perfect sense. I think it’s really easy — and I’ll talk a little bit more about this on Thursday — I think it’s really easy to look at the Articles and say, ‘Huh? What were they thinking? How did that make sense? Let’s create a government and give it no power. Go.’ So I think the Articles get a bum rap basically, in the long view of history. And I think it’s important to realize at that moment in time they made perfect sense, given the experience of the Revolution and what people had just experienced in the realm of government.

Basically, the Articles denied to this new government the very powers and violations that they had seen at the heart of the Revolution. So the Congress can’t tax; the Congress can’t overrule local laws; the Congress can’t alter a state constitution; it can’t interfere with state judicial proceedings. All of these things are things that we saw in past weeks happening during the course of the Revolution, inflicted by the British. So this is a really — Again and again, when people are creating constitutions, they learn a lesson and then they act based on that lesson that they learned, and then they look at this new thing they created and go: ‘okay, new lesson learned. Let’s make another government because we didn’t like that one so much.’ But you can actually see people experiencing something, thinking about what that means, and then creating a government based on those immediate lessons. That’s what we see here with the Articles of Confederation.

And then to avoid an entrenched elite — They don’t want any kind of a little aristocracy coming up in America — the Articles did establish rotation in office. So you could not be in office more than three or every six years; you couldn’t be President of Congress more than one in any three years; and any delegate could be instantly recalled by his home state. Okay. So there we see this weak central government, lots of things it can’t do.

There were very, very few things that the states were restricted from doing under this new compact, but there were a couple of things that the states were not supposed to do — and you’ll hear, they’re not exactly dire restrictions. Okay. So no state could enter into an alliance or treaty with a foreign nation without the consent of Congress, so New Jersey cannot make a treaty with France. Okay. They need to go through Congress. No two or more states could enter into a confederation without the consent of Congress. Okay. Think about that one. So New England can’t break away and form its own confederation without at least checking with us first. Would you allow us to break off and form our own confederation? No? That would have been an interesting little game. No? Well, try to stop us. But at least it’s saying, states are not supposed to form their own little mini-confederations. States were not to keep warships or troops in peacetime unless Congress deemed it necessary for defense. States were not supposed to declare war without consent of Congress — that’s nice — except where sudden invasion admitted of no delay.

Okay. Those are the restraints. Right? Ooh, [laughs] those are not dire restraints. Don’t make war with another country all by yourself. Don’t break away from the Articles, from the league of friendship, and form your own little country. Don’t make a treaty with a foreign nation all by yourself. Those are the restrictions on the states. Obviously, none of these restraints placed too serious a check on the sovereignty of the states under this compact.

So essentially the Articles of Confederation were designed so that the new nation’s central government would not infringe on the states. As I said before, it would kind of fill the hole where the British imperial system had been before, have a very, very limited sphere of actions, not really have a power of enforcement, and leave everything that wasn’t specified to the states to control on their own. Now, this is a document that’s being drafted in the middle of a revolution, and what we’re going to see over the course of the next few lectures is that once revolutions end — Remember we started the course by talking about how the colonies came together basically when they needed to defend themselves and then as soon as they didn’t need to defend themselves they went “boom” and sort of parted.

Chapter 7. Conclusion [00:41:32]

Okay. So we had this Revolution, and the states, the colonies, they come together, they unite, they fight together, and then the war ends, so guess what the 1780s is going to look like. Okay. It’s going to look like just what you think it will look like. The states basically all turn their back on each other and say, ‘Well, that was nice. [laughs] Now we’re going to do our own thing. Thank you very much.’ So the Articles is drafted in a time when there is this cooperation going on between the states.

What we’re going to see in the next two lectures is what happens when these Articles actually go into effect. What do the 1780s look like? And that’s going to take us on the road to new lessons being learned and yet another government. Think about the pace at which governments are being created in this period. It gets back to where I started at the beginning of this lecture. They’re just: ‘Hey, we need a new government. Let’s make one now. Okay. How do you like that one? I don’t know. We need to revise it.’ They’re also revising these governments throughout this period. That’s also got to be a little unsettling. It’s part of why in this period, people tend to get very upset, very scared. Something goes a little wrong and they think, ‘Aah, it’s the end of the government!’ Well, if it’s only two years old, maybe it will collapse, and if these are the guys who actually made the government, then they kind of have a good reason for thinking that it could fall apart. They were there when they put it together. Maybe it’s actually going to collapse.

So that’s actually — And we’re going to see that particularly in the 1780s and then the 1790s. We won’t be talking so much about the 1790s. If you want to take my Early National America course, that will start right where this one drops off actually, and takes us into the 1790s — but you can see that spirit in the 1790s, of people saying, ‘Wow. We’ve been creating a lot of governments. Do you think this one’s going to stick around? I don’t know. I hope so. Maybe it’ll last for five years. That’ll be exciting.’ So — Okay. I will stop there. On Thursday we will look at what happened when the Articles go into effect.

[end of transcript]

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