Historians have consistently disparaged the Articles of Confederation. The futility of the Articles’ amendment process that required the approval of Congress and the unanimous ratification of the state legislatures has been especially denigrated. Although attempted on several occasions, the amendment process was never achieved. Despite this, the successes of the Articles were substantial: (1) successfully waging much of the war for independence, (2) obtaining the remarkably favorable Treaty of Peace of 1783, and (3) adopting the Northwest Ordinance of 1787. Only a few historians have suggested that the Articles were more successful.
Despite constitutional limitations, Congress had on several occasions resorted to extraordinary or perhaps even unconstitutional measures to address serious national problems. This blog will show how Congress repeatedly took such extra-constitutional measures even before the Articles were officially adopted on 1 March 1781.
The Articles of Confederation is always criticized for its lack of an independent executive. The Confederation Congress did have a president, who, as a delegate himself, was annually elected for a non-renewable term by Congress. His limited powers resembled those of the Speaker of a legislative assembly. The president, in essence, merely presided. The primary work of the Continental and Confederation Congresses was conducted by the delegates in numerous committees. Some delegates served on more than a dozen committees, and service was quite burdensome. To alleviate this burden, Congress decided in January and February 1781 to re-structure the Confederation government by creating three executive departments—for Finance, Foreign Affairs, and War, each chaired by a non-delegate to Congress. Robert Morris, a wealthy Philadelphia merchant, was appointed superintendent of finance. Following the English custom where the first lord of the treasury served as prime minister, Morris assumed the role of de facto prime minister of the United States. His enemies called him “the Dominus Factotum, whose Dictates none dare oppose, & from whose Decisions lay no Appeal: he has in Fact exercised the Power really of the three great Departments, & Congress have only had to give their Fiat to his Mandates” (Joseph Reed to Nathanael Greene, 14 March 1783). James Madison wrote that Morris’ “peremptory style . . . have given offense to many without & to some within Congress” (Madison to Edmund Randolph, 11 March 1783). When Morris threatened one too many times to resign if Congress failed to follow his “advice,” Congress accepted his resignation in 1784. Instead of appointing a replacement who might also serve as prime minister, Congress created a three-man Board of Treasury with one member from the Eastern [New England] States, one from the Middle States, and one from the Southern States.
In June 1783, Robert R. Livingston resigned as secretary for foreign affairs. Congress replaced him with John Jay, who soon filled the vacuum left by Morris and served successfully as America’s de facto prime minister from December 1784 to 1789. The French chargé d’affaires in New York reported that “Mr. Jay’s political importance increases every day. Congress appears to govern itself only by his impulses, and it is as difficult to obtain anything without the concurrence of this minister as to have a measure that he has proposed rejected. . . . Mr. Jay’s prejudices and passions insensibly become those of Congress, and that without being aware of it this Assembly is no more than the instrument of its first Minister” (Louis-Guillaume Otto to Foreign Minister Comte de Vergennes, 10 January 1786). Jay even continued to serve as acting secretary of state under the Washington administration until Thomas Jefferson assumed the position in 1790 after returning from France where he had served as U.S. minister. Benjamin Lincoln was appointed secretary at war in 1781 and resigned in 1783. He was replaced by Henry Knox in 1785 who continued to serve in the Washington administration until 1795. Although not officially sanctioned by the Articles of Confederation, these departments all functioned effectively.
In the spring and summer of 1786, Congress considered seven amendments concerning commerce, taxation, and attendance in Congress that would have ameliorated several key weaknesses of the Articles of Confederation. The first amendment provided that in the future, Congress was to have the power to regulate trade and to levy duties on imports and exports by a vote of nine states in Congress instead of requiring an amendment that would need the unanimous approval of the state legislatures. Another amendment provided that Congress’ power to raise revenue could be enlarged with the approval of only eleven state legislatures instead of the unanimity mandated by the Articles. The last amendment disqualified any absent member of Congress from future state or federal service whose absence caused the lack of a congressional quorum. The consideration of these amendments that seemed so necessary were never approved by Congress because of the intense controversy that erupted when news became public that Secretary for Foreign Affairs John Jay had secretly obtained a change in his instructions in negotiating with Spanish special envoy Don Diego de Gardoqui. The change allowed Jay to relinquish the American right to navigate the Mississippi River for twenty-five years in exchange for a commercial treaty with Spain that would predominantly benefit the Northern States. Navigational rights on the Mississippi River were thought to be crucial for the Southern States in exporting their agricultural goods. This change in Jay’s instructions caused an explosion in sectional bitterness that when coupled with the poor attendance in Congress killed the seven amendments. They were never debated.
In the fall of 1786, an agrarian uprising occurred in western Massachusetts as debt-ridden farmers attempted to shut down the civil courts to put a stop to foreclosure proceedings on their farms. Labeled Shays’s Rebellion, this was the most widespread and violent debtor protest of the mid-1780s. The state militia seemed unwilling to suppress the rebellion. Although Congress lacked the constitutional authority to assist Massachusetts in suppressing the rebellion, as a subterfuge, Congress on 20 October 1786 asked New Hampshire, Massachusetts, Rhode Island, Connecticut, Maryland, and Virginia to raise $500,000 and a legion of 1,340 men ostensibly to suppress Indians on the frontier, but in reality to suppress the Shaysites. Two companies were raised before Massachusetts suppressed the rebellion in February 1787 with a special army raised with funds made available from Boston merchants. Even after the rebellion was suppressed, some members of Congress, including James Madison, wanted to maintain the congressional legion.
One of the most contentious issues in drafting the Articles of Confederation concerned the method of apportioning expenses (i.e., taxes) among the states. After rejecting an apportionment based on population, Congress agreed to apportion federal expenses based on the value of property. Unexpectedly, the states either failed to submit a valuation of their property or submitted inaccurately low valuations in an attempt to reduce their tax liability. Without the necessary information to make an equitable assessment based on property value, Congress agreed to an amendment that was submitted to the states on 18 April 1783 that called for an apportionment of federal expenses among the states based on population that included three-fifths of the whole number of slaves. Population figures derived from state-operated triennial censuses were to be submitted to Congress. By 1786, eleven states had ratified this amendment; New Hampshire and Rhode Island had not approved. Despite the failure to officially adopt the population amendment, Congress out of necessity abandoned the constitutional method of apportionment and used population with the “federal ratio” of three-fifths of the slaves in apportioning its quotas among the states in 1786 and 1787.
On 20 December 1783 Virginia officially ceded all of the land it claimed north and west of the Ohio River to the Confederation Congress. Congress accepted the cession on 1 March 1784. Despite no specific authorization in the Articles of Confederation, Congress out of necessity considered how to sell and administer its new western territory in ordinances in 1784, 1785, and 1787. On several occasions, delegates (including James Madison) alluded to the fact that Congress had no constitutional authority to approve ordinances concerning the western territory because Article II of the Articles of Confederation stipulated that Congress had only “expressly delegated” powers that did not include governing territories.
The Northwest Ordinance of 1787 is considered one of the greatest accomplishments of the Confederation government. The prohibition of slavery in the Northwest Territory is especially praised. Yet, it was the objection to the U.S. Congress’ power to limit slavery in the western territories acquired by the Louisiana Purchase and the Mexican-American War that stoked the embers that led to the awful Dred Scott decision in 1857 and to the secession of the Southern States from the Union in 1860–61. Furthermore, the prohibition of slavery in the Northwest Territory, which was not controversial in 1787, led to the inclusion of a fugitive slave clause in the Northwest Ordinance which had not been included in the Articles of Confederation. The Constitutional Convention emulated Congress in including a fugitive slave clause in the newly proposed Constitution. The first federal fugitive slave act of 1793 was somewhat innocuous, but the Fugitive Slave Act of 1850 was far more severe and significantly contributed to the sectional animosity that led to the Civil War.
In January 1786 Virginia called for a convention of the states to consider commercial matters. Meeting from 11 to 14 September 1786, the Annapolis Convention called for another general convention “to devise such further provisions as shall appear to them necessary to render the constitution of the Fœderal Government adequate to the exigencies of the Union.” Despite some “scruples against” acting “without some constitutional sanction,” Congress on 21 February 1787 endorsed this extra-constitutional convention to revise the Articles of Confederation so as “to render them adequate to the exigencies of government and the preservation of the Union.”
The Constitutional Convention completed its sessions on 17 September 1787 and submitted its proposed Constitution to Congress and to the states for consideration by conventions elected by the people. Despite the fact that the Constitution violated the Articles of Confederation in not requiring Congress’ approval of the Constitution and in requiring adoption by only nine states in ratifying conventions rather than obtaining the unanimous approval of the state legislatures, Congress sent the Constitution to the states on 28 September 1787. Two days later in a letter to George Washington, James Madison explained how he justified Congress’ action. Congress, he said, “had never scrupled to recommend measures foreign to their constitutional functions, whenever the public good seemed to require it; and had in several instances, particularly in the establishment of the new western governments, exercised assumed powers of a very high and delicate nature, under motives infinitely less urgent than the present state of our affairs.” Given its past experience in governing beyond the Articles of Confederation, it seems likely that Congress would have continued to govern creatively beyond the strict limitations of the Articles if the newly proposed Constitution had not been adopted.