Articles of Confederation

Explanation and Analysis of the Document

To understand the Articles of Confederation as accepted by the Continental Congress, one must compare Dickinson's draft and the final version. On June 12, 1776, the Continental Congress created a committee consisting of several lawyers to draft the Articles of Confederation. Dickinson was viewed as the leader. The conservatives who served on the committee were Dickinson, Edward Rutledge, Robert R. Livingston, Francis Hopkinson, Thomas Stone, Joseph Hewes, Button Gwinnett, and Thomas Nelson. Thomas McKean, who was radical in his desire for independence despite being conservative in all other political leanings, also served. Roger Sherman and Josiah Bartlett served as moderates, between radical and conservative. Stephen Hopkins and Samuel Adams—John Adams's cousin—were the only true radicals serving on the committee.

This conservative-dominated committee wrote a document that created a confederation in name only. Merrill Jensen noted:

The Dickinson draft, while by no means as explicit as the Constitution of 1787, made the constitution of the central government the standard by which the rights, powers, and duties of the states were to be measured. Congress was theoretically, if not practically, the supreme authority. In contrast, the final draft of the Articles of Confederation was a pact between thirteen sovereign states which agreed to delegate certain powers for specific purposes, while they retained all powers not expressly delegated by them to the central government. (1970, p. 130)

Dickinson's language in the draft was that of a lawyer: He used phrases and terms that have multiple meanings from a legal viewpoint, and a layperson would not realize the legal meanings. He was extremely precise in what he wrote. His exactness of language caused Rutledge to comment in a letter to the statesman and jurist John Jay that the Articles occupied “the Vice of his [Dickinson's] Productions to a considerable Degree; I mean the Vice of Refining too much” (Jensen, 1970, p. 127).

The committee's debates over the Articles are not recorded. The debate over Dickinson's draft in the radical-controlled Continental Congress, however, is recorded in that body's proceedings. Dickinson's draft has twenty articles, whereas the accepted document has thirteen articles. The final document's language is rewritten; much of the legal phrasing is eliminated or rewritten. After a preamble of greetings, the document's full title is given as “The Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.”

Article I fixes “The United States of America” as the name of the new nation, establishing it as the official name of the country. This name is used in the closing paragraph—the only time in the entire document—of the Declaration of Independence, where the representatives of the colonies who signed the Declaration are called the representatives of the United States of America.

Article II, which was Article III in Dickinson's draft, defines the powers of the states with respect to the Confederation. All power is reserved to the states, and the states give only certain powers to the Congress of the Confederation. In effect, there is no balance of powers between the Confederation and the state governments; the state governments remain the ultimate power in the new country, and the Confederation government's powers are strictly limited to those enumerated in the Articles, which assign it a subservient role to the governments of the states.

Article III, which was Article II in Dickinson's draft, establishes the “firm league of friendship” between the states for their mutual defense and protection from those outside the Confederation who might seek to destroy their freedoms and liberties. The Articles do not create or allow, however, a standing federal army of the United States. In time of war, officers appointed by the Congress of the Confederation would command all state militias and armies. The Congress would declare war and call on the states to raise an army to defend the United States or to suppress internal strife, as would be the case in Shays's Rebellion in Massachusetts. The states would not always answer Congress's call to arms—again, as would be the case in Shays's Rebellion—which presented a serious weakness to the Confederation.

Article IV extends the same rights and privileges to all citizens when they travel to other states within the Confederation. It also guarantees transit free of harassment or restriction from state to state as well as protection for visiting citizens under the laws of each state as though that citizen were from that state. In addition, it recognizes the legitimacy of the proceedings of the magistrates and courts of all states, and it ensures extradition, at the request of state authorities, of any criminals who have fled to escape arrest.

Article IV establishes the idea of dual citizenship—one being a citizen of both a state and the United States—a concept that would later be built upon by the Constitutional Convention of 1787. Under the Articles however, such a concept had no meaning. Each state viewed itself as a community of people, and only the leaders of a community could exert control over the people. The United States government had no jurisdiction over individual citizens of the states, since this would imply the collapse of the existing communities. Therefore, the Confederation had no authority to act upon the citizens of the states, except in cases where state citizens were serving in the Confederation military. The Confederation could act only upon the state governments, not on the people. Article IV, to the colonials, meant a reciprocal type of citizenship—citizens of one state are guaranteed the same rights and protections as citizens of any state they visit. Being a United States citizen was an alien concept.

Article V deals with the states' representation in the Congress of the Confederation. The article requires each state to have no fewer than two and no more than seven delegates at any time. The process by which delegates are selected is reserved for state legislatures to decide; states have the right to recall delegates and send others in their place. Each state has one vote in the Congress, which is to meet on the first Monday of every November. The article sets delegates' term limits and the prohibition that none could hold any other Confederation office while serving as a delegate. States are responsible for caring for their delegates while they serve in Congress. Delegates are also assured freedom of speech when in Congress and protected from arrest (except for treason, felony, or breech of the peace) by states through which they travel on their way to and from attendance in Congress.

States could send no less than two and no more than seven delegates to the Continental Congress. Each state had  one vote.  Several instances are recorded where  a state's delegates split evenly, therefore nullifying the ability  of the state to vote.  It was not unheard of for riders to be sent to the state to  bring back an absentee  or alternate delegate.  Only with this delegate could the tie be broken and the state's vote registered.

Lengthy debates resulted in the “one state, one vote” unicameral legislature that the accepted document codifies. Representation based on state population had been suggested, but smaller states opposed it based on the fear that larger states would dominate the Confederation. The southern states insisted that their representation include their slaves, who were not citizens and had no rights. Northern states opposed this since it would swell southern states' representation. The congressional representation problem would create a crisis in the Constitutional Convention of 1787, which was resolved only by compromise and by the creation of the bicameral Congress that Americans know today.

Article VI prohibits any state from sending embassies to foreign countries or entering into treaties or alliances with them. Foreign relations is strictly reserved for the Confederation government. In addition, no United States public servant can accept a position or title from a foreign government, nor can the government of the United States bestow any title of nobility. States are prohibited from collecting duties on foreign imports that might interfere with treaties the United States has or would have with Spain or France. States are prohibited from having standing armies and navies in times of peace except a number as determined by the United States for the defense of the state or its trade. States, however, are required to keep their militias trained, armed, and prepared. States cannot engage in war without Congress's permission unless the state is attacked or has advanced warning of an attack and Congress cannot be consulted ahead of time. States have to wait for a declaration of war from the United States before granting commissions to vessels of war or letters of marque and to attack only the foreign nation with whom the United States is at war.

Article VII stipulates that the legislature of a state will appoint the officers with the rank of colonel and below of any army that state raises. The Congress of the Confederation would appoint generals. This was in keeping with the tradition established during the Revolution whereby Congress appointed George Washington commander in chief of the colonial forces as well as all the other generals that fought the war. Responsibility of raising and maintaining the army is the sole responsibility of the state that originally creates it.

Article VIII deals with expenses of war and those for the common defense and welfare of the United States. A common treasury is to be established and used to pay for said expenses. Each state pays into the common treasury, which is based on the value of a state's land (granted or surveyed), buildings, and so forth. The Congress is responsible for periodically directing the reestimation of the states' property values. State legislatures levy and collect taxes due to the United States in a time frame agreed to by Congress.

This article's problem is that the United States has no recourse in collecting money that states owe it. It is assumed that the states' good conduct would ensure that money due to the United States would be collected by the date set. In many cases, the states would neglect this article, and Congress would have little or no money with which to run the country.

Article IX, the largest of the Articles, reserves Congress's right to determine the condition of peace and war. Sending and receiving embassies and entering into treaties and alliances with foreign powers are reserved for Congress. The United States, however, cannot make any commercial treaty with a foreign power that restricts a state from imposing the same tax to foreign goods and commerce that the foreign nation imposes on the state. Congress also decides war prizes captured on land and sea and issues letters of marque and reprisal in times of peace. Congress would establish courts appointed to dispose of said prizes; members of Congress cannot serve as judges in these courts.

States can ask Congress to become involved in land disputes between states, but only as a last resort. The Articles did not give Congress authority over the western lands, which delayed ratification. These western lands were located between the Appalachian Mountains and the Mississippi River. Even before the end of the Revolutionary War, many people believed that Great Britain would give this land to the new nation. Also, since many of the boundaries set by colonial charters were vague and overlapped in many cases, some colonies viewed parts of the western lands as part of their states. Virginia's charter of 1609, for example, set vague colony boundaries. The Virginians considered territories east of the Mississippi River as land given to them by their charter. If the Mississippi River were meant to be Virginia's boundary, the colony could claim all land that today is Tennessee, Kentucky, Ohio, and western Pennsylvania.

Even before the new nation won independence, land disputes threatened to tear it apart. Dickinson's draft gave Congress full control to settle western territories but did not explain how to do it. Article IX in the accepted document fails to give authority to Congress over the western lands unless the conflicted states ask for Congress's assistance in resolving the dispute. The obtuse procedure that Congress would use to settle disputed boundaries is discussed in Article IX. However, the procedure by which Congress would resolve disputed western lands is not detailed.

Although Article IX also gives Congress authority to regulate the value of the Confederation and the states' coins—no national currency is established. Responsibility for equity in the exchange rates of all the states' currencies is assigned to the Confederation. Congress regulates trade, manages Native American affairs, creates and regulates state post offices, collects postal duties, appoints naval officers, and makes army and navy rules and regulations and directs their operations.

Article IX also establishes a “Committee of the States” to run the Confederation while Congress is not in session. Each state appoints one delegate to the committee, which can appoint others to posts that are necessary to run the Confederation government. The committee chooses a president to serve a yearly term; no president can serve more than one term in three years. The committee ascertains needed funds to run the Confederation and can borrow money and issue bills of credit. The article regulates how to draft and equip a navy and the way each state should raise a number of soldiers proportionate to the white population. The committee's president is the de facto president of the United States. He serves as head of government, meets foreign embassies, and has a ceremonial role. The Confederation's president is a legislator; he serves in the Congress of the Confederation, as did those he appoints to executive positions. The president and his staff need to carry out not only their executive duties but also their legislative duties.

Dickinson's draft created a “Council of State,” which was headed by a president. Congress would have chosen the president and his officers, and the council would have continued to function when Congress was in session. The council could summon Congress while not in session if warranted and could prepare items for Congress's debate. The council was in charge of U.S. armed forces while Congress was not in session. Like the committee, the council would not be above Congress; unlike the committee, the council would be independent of Congress.

The Congress of the Confederation needs a majority vote of nine states—or a two-thirds majority, which today is needed to override a presidential veto—to pass legislation or do business. A simple majority to pass legislation is not considered enough—most states have to agree to pass legislation. The Congress can adjourn at any time and can meet anywhere in the United States. Congress's proceedings are to be published regularly, excluding anything of a secretive nature. Copies of recorded congressional debates and votes would be available to delegates and state legislatures.

Article X gives the Committee of the States the power to act in the name of Congress when Congress is not in session. It also gives the committee any additional powers that Congress (with a nine states majority) decides to invest in it.

Article XI allows Canada to enter the Confederation on the footing of a state. Congress does not have to approve Canada's joining. Otherwise, at least nine states must approve the admission of a colony to the United States. The Northwest Ordinance of 1787, in addition to the Ordinance of 1784 and Land Ordinance of 1785, set up the process by which states could be admitted.

Article XII recognizes all debts created by Congress in executing the duties of the Confederation. Payment of all these debts by the United States is pledged. The United States has no way to ensure the states' prompt payment to the national treasury. In many cases, the Confederation would lack the proper funds.

Article XIII calls on member states to honor the Articles and uphold the decisions made by the Congress. It is again reiterated that the Confederation is perpetual. Only Congress can make changes or amendments to the existing Articles and only by a nine-state majority vote, as stated in Article X; changes approved by Congress must then be ratified by the state legislatures before the changes could become law.

The Articles end by declaring that the delegates approve and call for the ratification of the document. All questions and problems of the Confederation are to be resolved by Congress, which is the supreme authority in all Confederation matters. The states are called upon to abide by the Articles; the union is again called perpetual.