The Revolutionary War (April 19, 1775 – September 3, 1783) was a crucible that required the thirteen original colonies to learn to work together. For most of the war, they did do without any formal constitution. The result was that the Continental Army, led by George Washington, was chronically underfunded and the colonies very nearly did not survive the conflict. Beginning with Benjamin Franklin, several attempts were made to create a stable government that would enable the colonies to survive. Only with the adoption of the Constitution of the United States of America in 1789 was the problem of providing a stable government finally solved.

Many Americans do not realize that our current Constitution is not the first the United States of America possessed. A document known as “Articles of Confederation and Perpetual Union” (Articles of Confederation) was the initial written constitution of the United States. It was ratified on March 1, 1781, with the Revolutionary War already five years in duration. [1] The reasons for the delay were many. Each of the colonies already had a government, which government was considered sovereign. The states were reluctant to give up this sovereignty in any meaningful way. This meant that diplomatically any nation in Europe that wanted to recognize the fledgling union theoretically had to reach treaties with thirteen independent states.

As a sovereign state, each state had the sole power of taxation, and the Continental Congress and Army was completely dependent upon the voluntary funding of the several states of any commitments they made. The raising of troops to conduct the conflict was similarly voluntary. This defect was early understood by Washington and other leaders. Equally problematic were the many disputes between the states over land, and the fear of smaller, states that larger states, like Virginia would dominate their neighbors.

The Articles of Confederation

Under Articles of Confederation, the individual states remained sovereign and independent. [2] The United States of America was not really a nation but a “firm league of friendship.” [3] This “league of firm friendship” had certain characteristics in common with the leagues of ancient Greece and Germany,  and was subject to all their defects. [4]

The problem of international diplomacy was “solved,” as Congress was given the power to make treaties and alliances, and maintain armed forces. [5] There was however no means by which these powers could be effectively wielded.

Generally speaking, only Congress could declare war. [6] However, the central government could not levy taxes to assure the effective conduct of a war. This, of course, meant that the problem of the perennial bankruptcy of the federal government was not solved. A case in point were the debts incurred to prosecute the Revolutionary War. [7] They were assumed by the Articles of Confederation, but the Congress could not levy and enforce the taxes necessary to pay them. After the conclusion of the Revolutionary War, this meant that the United States of America was constantly unable to pay the substantial debts it had incurred in prosecuting the war.

The small, new and independent nation with a form of government unlike any of its European trade partners, allies and foes, was under constant threat. Obviously, as the War of 1812 proved, Great Britain had not necessarily given up any colonial ambitions in the New World. France, Spain,  and other European nations might also seek some kind of conquest of the new nation. The inability to tax and support a military establishment meant that the United States of America might be an inviting target for invasion.

Central Defects of the Articles of Confederation

The defects in the Articles of Confederation were many. At the core of the problem was the simple fact that the states retained complete sovereignty, and the federal government lacked the power to be effective. [8] In the end, the former colonies were accustomed to external protection and the resolution of intra-colonial disputes by the British government, and the Articles of Confederation provided no means by which the former colonies could experience the benefits of the effective central government whose protection they had formerly enjoyed.

The only institution of government was the Congress. There was no executive or judiciary. The Articles of Confederation, provided for a “Committee of the States” made up of a representative of each state, which had limited executive authority. [9] There was no effective, permanent, central executive function. Obviously, this made administration and defense nearly impossible. The absence of a judiciary (Congress had some judicial powers) meant that the resolution of disputes was difficult.

Those familiar with Montesquieu and the division of republican government into three separate and independent departments clearly saw the deficiency of this model for a government. It had only a legislative function and lacked the robust executive and judicial functions necessary for a stable polity. The entire scheme was unlikely to withstand any severe test.

The inability to tax meant that the government was weak and unable to act without begging for money, which did not always arrive in a timely manner, if at all.  The problem with the Articles of Confederation was that although Congress had certain powers, it had no real power to exercise or enforce those powers. As Hamilton and Madison were quick to point out, a confederation with responsibilities but no powers to accomplish those responsibilities sort of war was sure to fail. [10] In the end, this led to governmental inefficiency and chaos.

Finally, under the Articles of Confederation there was no means by which the states could be prevented from engaging in economic policies which were injurious to one another and to the general prosperity of the union. There were constant interstate conflicts as states attempted to gain some kind of economic advantage over each other. In addition, there was no central agency that could regulate international commerce to the benefit of all. [11] Congress was unable to protect the freedom of commerce within the nation because it lacked the powers necessary to do so.

By 1787, wise minds recognized that the situation was not tenable. Changes had to be made. Unfortunately, there was no unanimity as to what those changes might be. Many people thought that only slight changes in the Articles of Confederation were needed—changes that could be accomplished by amendment. Others, like Alexander Hamilton, thought the Articles of Confederation fundamentally defective and in need of complete replacement. There were even those who felt that the solution to the problems of the Articles of Confederation was to substitute two or more smaller confederations of like-minded states for the single entity that existed under the Articles of Confederation. [12]

Conclusion

As indicated above, by the eve of the Constitutional Convention of 1787, nearly all the best leadership of the United States of America realized that its current form of government would have to be revised. It was impossible for the new nation to adequately provide for its common defense or to secure the respect and trust of other nations under the current situation. It was for this reason that, in February of 1787, Congress provided for a convention, which originally was to seek ways to amend the existing Articles of Confederation, and from which our current constitution emerged.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved.

[1] See, United States Code: Articles of Confederation – 1777 (1952), hereinafter, “Articles of Confederation.”

[2] Articles of Confederation, Article II. “Each State retains Its sovereignty, freedom and independence, and every power, juris-diction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

[3] Articles of Confederation, Article III.

[4] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 18 (Madison and Hamilton). All references to the Federalist Papers are to this edition and will be cited, “Federalist Papers Number, and Author.

[5] Articles of Confederation, Article VI.

[6] Articles of Confederation, Article 4. If actually invaded by a foreign power, staters could conduct wars under the Articles of Confederation.

[7] Articles of Confederation, Article XII.

[8] Federalist Papers, No. 15 (Hamilton).

[9] Articles of Confederation, Article IX.

[10] Federalist Papers, No. 18 (Madison and Hamilton).

[11] Federalist Paper No. 15 (Hamilton)

[12] Several of the Federalist Papers authored by Alexander Hamilton, John Jay, and James Madison are devoted to exposing the obvious flaws of this solution, which would have inevitably resulted in different states and confederacies having differing treaties and alliances, that might easily result in conflict among the states.