The Articles of Confederation Was Much More Pro-Freedom Than The U.S. Constitution That Replaced it in 1789

By Hans Sherrer ©

(July 16, 2011)

The Articles of Confederation is an important document in American history, but its contents are virtually unknown to all but amateur and professional historians.

Drafting of the Articles of Confederation was authorized by the Second Continental Congress on June 12, 1776, a day after it authorized drafting of the Declaration of Independence. In the summer of 1777 the final draft of the Articles of Confederation became the working constitution that loosely tied together the 13 colonies (states) during their war of separation from British rule that was symbolized by the Declaration of Independence. While the Declaration of Independence notified the British that the 13 colonies considered themselves to be independent states, the Articles of Confederation were not formally ratified by all of them until 1781.

The United States of America was created by the Articles of Confederation (AOC) which states, “The Title of this Confederacy shall be “The United States of America.”” (Art. I) The AOC, however, did not create a nation separate from its member states. Instead the AOC created an overseer of the 13 states collective interests. The states entered “into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other …” (Art. III) The USA was explicitly subservient to the states under the AOC, “Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” (Article II.)

The federal government created by the AOC had authority for “regulating the alloy and value of coin,” “fixing the standards of weights and measures throughout the United States;” “establishing or regulating post offices from one State to another, throughout all the United States;” and, “regulation of the [United States’] land and naval forces, and directing their operations.” (Article IX.) The states provided the troops, so there was no standing federal army.

The AOC promoted freedom of movement and commerce by providing that “…the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, …” (Article IX.)

There was a balance of power between all the member states because regardless of size each state was allotted one vote of its delegation in the unicameral Congress of the Confederation, and there were term limits for a state’s representatives who could only serve for three out of any six years. (Article V.) The presiding officer of Congress was known as the President. The President was not independent and he was directly under Congress’ control.

The federal government could not regulate foreign trade or collect taxes (duties) on imports because Rhode Island wouldn’t ratify the AOC with those provisions included.

The federal government authorized by the AOC was very limited in scope because there was no president, no executive agencies, no judiciary, no standing federal army or navy, no tax base, and it had no mechanism to compel the states to provide money or troops.

Since the federal government was not empowered to collect taxes levied by Congress, all payments by the states to the federal government were voluntary. Those payments can be more aptly described as voluntary contributions rather than payment of a tax, such as a tithing to a church by a person who can walk away at any time with no legal consequences for an unmet financial obligation.

Even prior to the end of hostilities between the British and the coalition of states (colonies), George Washington expressed in 1780 his dislike for the voluntary nature of the Articles of Confederation, because he didn’t think his troops were properly provisioned or paid promptly. [1] After the articles of peace were signed between the U.S. and Great Britain, George Washington began openly advocating for replacement of the AOC with a document that authorized establishment of a federal government that had more of a forceful presence in international affairs and could command compliance of the then 13 independent nations, typically called “states”, with its demands. One of Washington’s criticisms of the AOC was the federal government could not enforce a military draft since all troops were provided by the states. Washington wrote in 1783, “It is indispensable … that there should be lodged somewhere a Supreme Power to regulate and govern the general concerns of the Confederated Republic … There must be a faithful and pointed compliance on the part of every state with the demands of Congress…” [2] It was the freedom the states enjoyed and the federal government’s relative impotence that Washington and like-minded people detested and wanted to correct with a federal government that had the “legal” authority and means of enforcement to impose its will on the states. That would require the federal government to have the authority to assess and collect compulsory taxes to fund its operation and to have military forces separate from any control by the states.

That could only be accomplished by the AOC’s replacement with a new constitution that incorporated the vision for a powerful central federal government that would effectively be a sovereign entity independent from the states. Washington, James Madison and other allies tried to undermine support for the AOC and lobbied for a constitutional convention as authorized by the AOC’s Article XIII. The stated purpose of the convention was to consider amending the AOC to deal with issues that included possibly granting the federal government some authority to regulate foreign and interstate commerce, and that was all it was empowered to do by the state legislatures that authorized delegates to attend the convention. However, the underlying purpose of the constitutional convention was not to revise the Articles of Confederation, but to replace it with a document that included the framework for a federal government with broad powers and reliable and substantial sources of revenue. [3] To carry out that purpose some of the state representatives wrote a new constitution during secret closed door sessions to replace the AOC.

The voluntary character of the federal “government” authorized by the AOC was precisely what inspired its critics to support its replacement with what came to be called the Constitution of the United States of America that authorized creation of a federal government with de facto unlimited power. The Supreme Court created under the Constitution was imbued with the inherent authority to determine the constitutionality of legislation and hence its enforceability.¹ The Supreme Court was also the final arbiter of the meaning of the Bill of Rights and the extent of its protection of individuals against predations by the government. [4] Consequently, an agency of the federal government determines the extent of the federal governments authority to act – or if there are any practical limits whatsoever.

Submission of the proposed Constitution of the United States in 1787 for ratification by three-fourths of the states sparked intense public debate between its proponents and those who were opposed to replacement of the Articles of Confederation. Those factions were respectively known Federalists and the Anti-federalists.

The most well-known Anti-federalists were Patrick Henry and George Mason, and other ardent supporters of the state’s war of independence from control by a power federal government – albeit the British government.

Historian Ralph Ketchum wrote about the Anti-federalists:

“Antifederalists feared what Patrick Henry termed the “consolidated government” proposed by the new Constitution. They saw in Federalist hopes for commercial growth and international prestige only the lust of ambitious men for a “splendid empire” that, in the time-honored way of empires, would oppress the people with taxes, conscription, and military campaigns. Uncertain that any government over so vast a domain as the United States could be controlled by the people, Antifederalists saw in the enlarged powers of the general government only the familiar threats to the rights and liberties of the people.” [Ralph Ketcham, Roots of the Republic: American Founding Documents Interpreted, pg. 383]

The Anti-federalist’s concerns about what the federal government would become and do were well-founded, and have been proven by the events of the 222 years since the Constitution was considered to take effect in 1789. The federal government has grown to be the most gargantuan man-made entity in the history of the world, it is self-perpetuating by its sources of revenue, and it is independent of control by the states since it decides the extent of its authority to act. [5]

One way of characterizing the AOC is it was based on the idea of neighbors maintaining friendly relations amongst themselves for their mutual benefit, while in contrast the U.S. Constitution is based on the idea of a bully roaming a neighborhood who will punch you out if you don’t do what he says.

The AOC was so neighborly that it even pre-approved Canada – to which many Tories had fled – to become a member state of the confederation if it decided to do so, which it did not. (Article XI.)

The AOC were very much crafted in the same spirit as the Declaration of Independence, which is consistent with them having a common origin of the same people in 1776 who authorized them being written.

Under the AOC a person could live their entire life and not have personal contact with a single federal employee since the federal government was only authorized with “establishing or regulating post offices from one State to another,” (Article IX.) which meant the didn’t prevent competition by “regulated” private mail companies. Interestingly, of all the criticisms leveled at how the AOC operated in practice, none of those criticisms were directed against handling of the mail.

So in retrospect, the heyday of “freedom” from federal authority in “the United States” was from 1776 when the British government ceased having unrivaled control over the 13 colonies (independent nation States), until 1789 when U.S. Constitution was considered to take effect.

The history of both the U.S. and the world would be radically different if the individual freedom and the autonomy of the states under the Articles of Confederation had not been supplanted by the overarching power of the federal government created by the U.S. government.

Endnotes:

1. “We are without money, totally unprepared for Winter … There is not a farthing in the military chest.” George Washington, Circular to the States, October 18, 1780; George Washington to George Mason, October 22, 1780, in John C. Fitzpatrick, ed., The Writings of George Washington (Washington D.C.; U.S. Government Printing Office, 39 vols.) 20:211, 242

2. “Circular to the States,” June 8, 1783, Fitzpatrick, Writings, 26:483-496. Cited in “America’s Second Revolution,” Harlow Giles Unger, John Wiley & Sons, 2007, 10

3. “America’s Second Revolution: How George Washington Defeated Patrick Henry and Saved the Nation,” Harlow Giles Unger, John Wiley & Sons (Hoboken, NY), 2007, 269 pgs.

(George Washington worked behind the scenes for years to undermine support for the Articles of Confederation and replace it with a powerful central federal government that would have the legal authority to enforce its compulsory taxing authority. Washington and others literally conspired for years to subjugate State sovereignty to a powerful central government.)

4. The Bill of Rights only applied to the federal government until the Supreme Court relied on the 14^th Amendment to expand its coverage to actions by the states.

5. The U.S. Supreme Court determines the constitutionality of legislation and executive actions. See, Marbury v. Madison (1803)