THE ARTICLES OF CONFEDERATION

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THE ARTICLES OFCONFEDERATION

• Topic 5

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Original U. S. Governments

• The Declaration of Independence did not create a
  new U.S. government.
• Nor did prescribe what form such a government
  should take however, it did prescribe that
• it should be based on the consent of the
  governed
• it should secure, not abridge, natural rights
  and
• it should lay its foundation on such principles
  and organizing its powers in such form, as to the
  peoples shall seem most likely to effect their
  Safety and Happiness.
• It was generally understood that the consent of
  the governed was given by
• convening a group of (directly or indirectly)
  elected delegates
• who would draft a constitution (in effect, a
  social contract)
• that would be subject to some form of popular
  ratification (by which the constitution/social
  contract would be agreed to)
• It was further understood that the existing
  states would remain in existence as significant
  political entities.

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Original U. S. Governments (cont.)

• How was the new U.S. governed?
• Prior to the Declaration of Independence
• Even the colonies had considerable self
  government
• elected local/town governments
• popularly elected (lower house, at least)
  colonial legislatures
• appointed (royal) governors
• built-in conflict between legislature and
  executive
• Extent of franchise
• far from universal (but much more extensive than
  in Britain) primarily adult white males owning
  some property
• voting (and office-holding) qualifications varied
  across colonies and were often scaled to office
• The revolution accelerated democratic trends in
  popular sentiments and political institutions.
• Opinion was radicalized
• Revolutionary leaders sought popular support.
• Exit by loyalists.

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Original U. S. Governments (cont.)

• After the Declaration of Independence
• Colonial governments gt state governments
• States held constitutional conventions to draft
  new constitutions.
• Typically
• Bicameral legislature (both houses elected)
• Governor (a weak office, usually selected by the
  legislature, with a short term and few powers)
• Suffrage and office-holding qualifications
  generally liberalized (but still not universal)

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Original U. S. Governments (cont.)

• At the national/continental level
• The provisional Second Continental Congress
  remained in session and
• supervised the war effort (not very effectively),
  and
• drafted a set of Articles of Confederation and
  sent them to the states for ratification in
  November 1777,
• which were not ratified and put into effect until
  March 1781.
• The Articles of Confederation are commonly and
  correctly said to have provided for only a weak
  central government.
• But it is important to understand precisely the
  most crucial ways in which the A. of C. central
  government was too weak.
• To help understand this, we revert to social
  contract theory.

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A Constitution as a Social Contracts

• The social contract theory of Hobbes and Locke
  pertains to individuals in a state of nature (and
  to a perhaps not very realistic-seeming thought
  experiment).
• We can apply the same logic more realistically to
  collectivities (e.g., states vs. individual
  persons) that lack a central government
• States gt U.S. government
• European nations gt European Union
• All nations gt United Nations (or a stronger
  world government)

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Constitutions as Social Contracts (cont.)

• Consider the formation of larger political union
  in social contract theory terms.
• Consolidation
  Dimension _________________________
  ________________________
• 
  
• anarchic confederal
  federal unitary
• system system
  system system
• One extreme anarchic system no union
• Other extreme unitary system total union
• A Hobbsian social contract among states
• In effect, state governments agree to abolish
  themselves and create an all-powerful central
  government.

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Constitutions as Social Contracts (cont.)

• Intermediate positions on the consolidation
  dimension (con)federal systems.
• Such systems result from social contract among
  states that is Lockean in nature, in that
• the states agree give up some powers and
  functions and give them to the central
  government, but at the same time
• the states retain other powers and functions and
  deny them to the central government, so
• the central government has some powers but they
  are limited, and
• there are two independent and distinct levels of
  government,
• i.e. the states and the central government.

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Constitutions as Social Contracts (cont.)

• In U.S. constitutional language
• Delegated powers are the powers given up by the
  states and delegated to the central government.
• Reserved powers are the powers not given up by
  the states and not delegated to the central
  government.
• In anarchic systems, all powers are reserved and
  none are delegated.
• In unitary systems, all powers are delegated and
  none are reserved.
• In con/federal systems, there is some balance
  between delegated and reserved powers.
• In this respect, there is no fundamental
  difference between confederal and federal
  systems.
• The difference between confederal and federal
  systems pertains to how delegated power are
  exercised and how the central government operates.

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Confederal vs. Federal Systems

• The Articles of Confederation (1781-1789) created
  a confederal union of states,
• In contrast, the subsequent U.S. Constitution
  (1789-????) created a federal union of states.
• They were similar in that both entailed a balance
  between delegated and reserved powers.
• The balance between delegated and reserved powers
  was somewhat more favorable to the central
  government under the Constitution than the A. of
  C.
• But this is largely a matter of degree.
• The fundamental difference between the A. of C.
  and the Constitution (and between federal and
  confederal systems generally) pertains to how the
  central govern-ment exercises its delegated
  powers.

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The Articles of Confederation

• Under the A. of C., the central government may be
  characterized as government by the states and of
  the states.
• The A. of C. provided for government by the
  states in the following respects.
• Members of the Confederal Congress were not
  elected by the people of their states.
• Rather they were appointed by their state
  governments moreover
• they did not have fixed terms, so
• they could be recalled at any time, and
• they were paid by their state governments, not
  the U.S.

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The Articles of Confederation (cont.)

• Voting in the unicameral Confederal Congress
• Each state delegation in Congress cast one vote
  (regardless of the size of the delegation or the
  population of the state).
• State delegations could have 2-7 members.
• A 7/13 (simple majority) vote was sufficient only
  for procedural and minor questions.
• A 9/13 (supramajoity) vote was required for major
  questions including .
• A 13/13 (unanimity) vote was required to approve
  amendments to the A. of C.
• Congress (The United States in Congress
  Assembled) was the sole organ of the central
  government.
• There was no central government executive or
  judiciary.
• Congress had an executive committee (Council of
  States) that remained in session year round.
• Congress (in particular, the Council of States)
  supervised the several central government
  departments, e.g., Treasury, Army, Navy.

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The Articles of Confederation (cont.)

• A. of C. provided for government of the states
  in the following fundamental respect.
• Congress could not directly exercise most of the
  powers delegated to it.
• For example, the delegated powers of Congress
  included conducting foreign affairs and providing
  for the common defense.
• Exercising these powers requires money and
  manpower.
• But Congress itself could not lay and collect
  taxes.
• Only states had the power to lay and collect
  taxes.
• Congress had to lay assessments on the state
  governments (in accordance with an agreed upon
  quota of contribution), asking the states
  transfer funds to the U.S. Treasury.
• Likewise, Congress could not recruit (let alone
  conscript) men into the U.S. armed forces and
  likewise had to rely on states to provide
  manpower and/or organize their own militias.

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The Articles of Confederation (cont.)

• Congress could make treaties with foreign nations
  (e.g., with Britain regarding property claims).
• But Congress had to rely
• on state legislatures to pass appropriate laws to
  carry out the terms of a treaty, and
• on state courts to enforce them.
• In summary, there were no direct connections, in
  terms of either representation or authority,
  between the central government and the people of
  the United States.
• See the following diagram ?
• This was the critical weakness of the A. of C.

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Summary Confederal Diagram
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Hamilton, Federalist 16

• Hamiltons Federalist 16 is a strong critique of
  the Articles of Confederation and of confederal
  systems in general.
• Confederation may be styled the parent of
  anarchy.
• What if a state does not meet their obligations?
• Congress cannot put a state in jail for failure
  to pay its assessment.
• All it can do is resort to force against the
  recalcitrant state(s).
• But the guilt of all states becomes the
  security of all.
• It seems to require no pains to prove that the
  States ought not to prefer a national
  Constitution which could only be kept in motion
  by the instrumentality of a large army
  continually on foot to execute the ordinary
  requisitions or decrees of the government.

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Hamilton, Federalist 16

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

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Articles of Confederation (cont.)

• By the mid-1780s, there was a widespread view
  that the A. of C. were not working and the
  confederation was unraveling.
• This in due course led to a convention that
  drafted a new constitution that did endure.
• The new constitution was based on federal, rather
  than confederal, principles.

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Summary Federal Diagram