20. Confederation
Articles,  Blog

20. Confederation

Prof: 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 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.
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.
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.
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.
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. 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.
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.
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.
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.
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.
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.
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.
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. 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.
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.
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.

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