By Jamelle Bouie [November 2, 2021]
Everyone learns, by the end of high school, that the United States had a constitution before the Constitution — the Articles of Confederation.
Last week, I wrote about why I think it is important to make the case for constitutional reform, even when that reform is unlikely. Today, I want to look back at the Articles of Confederation, not as a precursor to the Constitution, but as a governing charter in its own right, with defenders as well as critics.
Our Whiggish narratives of American history notwithstanding, there was no guarantee that the United States would supersede the articles with a new constitution. The story behind that process is, I think, worth knowing; it can give us a sense of the conditions a country needs to find itself in to make that kind of fundamental change.
The American confederation began life as a wartime alliance between the 13 former colonies operating through the second Continental Congress which, the historian Robert Middlekauff writes in “The Glorious Cause: The American Revolution, 1763-1789,” “provided the center from which the war could be directed.” The Continental Congress took responsibility for leading the states. It established an army, sent envoys abroad, issued currency and borrowed money. “It did all these things and many more without any clear authority except necessity and the tacit approval of the states,” Middlekauff notes.
Shortly after issuing its Declaration of Independence in July 1776, the Continental Congress began work on a constitution that would define and formalize its authority. In November 1777, the Continental Congress sent its final draft of the Articles of Confederation and Perpetual Union to the states for ratification. There were holdouts, but by March 1781, all 13 states had joined the compact.
The Articles of Confederation explicitly preserved the “sovereignty, freedom and independence” of each state as well as “every Power, Jurisdiction, and right” that had not been “expressly delegated” to “the United States, in Congress assembled.”
Congress, under the articles, could make war, send and receive ambassadors, negotiate treaties and alliances, and regulate trade with Native Americans. It could not tax. If Congress wanted new powers to deal with unforeseen circumstances, it needed unanimous consent from the states. And it could not exercise the powers it had without the consent of nine state delegations.
The extent to which the Confederation Congress lacked sovereign power was not a major problem during the war with Britain, when necessity forced cooperation. It became one at war’s end, as the new United States struggled to make peace and resolve its own internal conflicts.
It would take more time than I have to give a full account of the challenges that faced the fledgling American government. But all we need, for this story, is a brief summary.
The first problem was debt. The historian Robin L. Einhorn points out in “American Taxation, American Slavery” that the United States after the war “owed over $42 million to foreign lenders and, among Americans, to the army, the public creditors, and people who had ‘become creditors in the first instance involuntarily’ — holders of the ‘certificates’ issued by army officers who had ‘impressed’ supplies. The annual interest on this debt amounted to $2.4 million.”
Worsening the problem of war debt was a lengthy, punishing recession — by some accounts as bad as or worse than the Great Depression — which forced state governments to raise taxes and render them all the more reluctant to pay congressional “requisitions,” or voluntarily contributions to the national government.
The economic crisis brought civil unrest. To head off rural discontent, several states passed pro-debtor legislation (including the printing of paper money), intensifying conflict between those who owed and those who were owed. In 1786, in the most famous instance of internal rebellion, a Revolutionary War veteran named Daniel Shays led an armed insurgency through western Massachusetts, targeting tax collectors and other government officials, demanding debt relief. It was Shays’s Rebellion, in particular, that supercharged elite fears of “excess” democracy.
Here’s Elbridge Gerry, also of Massachusetts, speaking at the Philadelphia Convention:
The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts it has been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute.
The lack of any real commerce power in the Confederation Congress compounded the problems of debt and taxation. “After the Revolutionary War, when Great Britain sought to exclude American ships from the Atlantic carrying trade, and several European nations sought to exclude certain American goods from European markets and from European colonies in the Western Hemisphere, Congress was powerless to respond with retaliatory trade restrictions,” the legal historian Michael J. Klarman writes in “The Framers’ Coup: The Making of the United States Constitution.”
The confederation also could not raise the revenue to deal with foreign adversaries. “Congress had no response when Spain closed the Mississippi River to American navigation in 1784,” Klarman writes, “or when Algerian pirates attacked American ships in the Mediterranean Sea in 1785, kidnapping American citizens and holding them for ransom.”
That Americans settlers continued to move west, in violation of treaties with Native American nations, only worsened the situation. If they provoked war, the government could not protect them.
By 1786, the Confederation Congress was gridlocked on most major issues. It was on the path to insolvency and poised to default on its foreign loans. It faced a hostile Britain, which still held forts on the nation’s western borders, and was unable to stop or repel attacks from Native tribes. Many Americans, and national elites in particular, thought the republic was doomed to failure. “Our situation is becoming every day more and more critical,” a young James Madison wrote. “No money is paid into the public treasury; no respect is paid to the federal authority. Not a single state complies with the congressional requisitions, several pass them over in silence, and some positively reject them.”
“It is not possible that a government can last long under these circumstances,” Madison concluded.
In her book “Ratification: The People Debate the Constitution, 1787-1788,” the historian Pauline Maier quotes a nearly despondent George Washington, who in a letter to his former aide-de-camp David Humphreys wrote, “I am really mortified beyond expression that in the moment of Acknowledged Independence we should, by our conduct, verify the predictions of our trans-Atlantic foe, and render ourselves ridiculous and contemptible in the eyes of all Europe.”
The Confederation Congress tried to reform itself. “In August 1786, after months of debate, a Grand Committee of Congress proposed a series of confederation reforms,” the historian George William Van Cleve writes in “We Have Not a Government: The Articles of Confederation and the Road to the Constitution,” “but political gridlock prevented any action on them.”
Despite the obvious problems at hand, many Americans were skeptical of making any major changes to the structure of the national government. You can see some of the substance of that opposition in the anti-Federalist critique of the Constitution.
“Both reason and experience prove that so extensive a territory as that of the United States, including such a variety of climates, productions, interests, and so great difference of manners, habits and customs, cannot be governed in freedom — until formed in states, sovereign, sub modo, and confederated for the common good,” the Virginia anti-Federalist Richard Henry Lee wrote in a 1788 letter to Samuel Adams, expressing a core sentiment behind the articles.
Racked by overlapping social, political and economic crises, paralyzed by stalemate and unable to reform itself, the United States under the articles was a failure. And yet, the Confederation Congress would endure for another year after 1787 as Americans debated a new constitution. The important point, however, is what it took to get to a place where those elites could agree that something must be done: internal rebellion, state failure and foreign conflict. To agree to something new, the country had to be pushed to a breaking point.
More than a few scholars have written books calling for a new Constitution or at least profound constitutional reform. I have read a few, and they all hit the same notes: that our government is almost hopelessly gridlocked; that Congress has yielded its influence to both a powerful executive and an unaccountable judiciary; and that extreme gerrymandering in the House and gross malapportionment in the Senate make a mockery of the ideal of political equality.
But if the story of the Articles of Confederation tells us anything, it is that these flaws (assuming one views them as flaws) are not in themselves enough to prompt change. What will bring change — or at least the possibility of change — is when those flaws render the country too sclerotic and dysfunctional to tackle its most existential challenges.
As the United States struggles, for example, to do anything serious to prevent climate catastrophe, it’s fair to say that this moment is somewhere on the horizon. In which case, constitutional change will be here sooner than we think. The real question is whether, in the face of such a crisis, we keep our commitment to self-government. And that, I’m afraid, is impossible to say.
Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va., and Washington.