Beyond Failure: Rethinking the Articles of Confederation's Legacy

The Articles of Confederation are often dismissed as America's failed first attempt at self-government, but there's a richer story hiding beneath this simplified narrative. Dr. Sean Beienberg takes us on a fascinating journey through America's original governing document, revealing its strengths and weaknesses with remarkable clarity.

What exactly were the Articles of Confederation? Far from the strong national government we know today, they created what Dr. Beinberg describes as a "league of friendship" – more akin to NATO than a unified nation. Each state maintained its sovereignty while participating in a collective body primarily focused on defense and foreign policy. Written during the tumult of revolution rather than in times of peace, the Articles reflected the practical needs and deep suspicions of centralized power that defined the era.

Despite their limitations, the Articles achieved meaningful successes that deserve recognition. The Northwest Ordinance established the process by which new territories would become states, complete with anti-slavery provisions that would later influence the 13th Amendment. Perhaps most importantly, the Articles kept the young United States intact during its most vulnerable years when foreign powers might have exploited division to reassert control.

The fatal flaws became increasingly evident as the 1780s progressed. Without direct taxation authority, the federal government struggled to fund even basic operations when states refused to contribute their share. James Madison's "Vices of the Political System" documented how the Articles of Congress couldn't enforce its laws, prevent states from violating treaties, or help states suppress internal rebellions. Even advocates of limited government like Richard Henry Lee recognized these fundamental problems.

Understanding the Articles of Confederation isn't just about cataloging historical failures – it's about appreciating how our constitutional system evolved through experience and compromise. Many principles from the Articles carried forward into the Constitution, demonstrating not a complete rejection but rather a thoughtful renovation of America's governing framework.

Ready to discover more about how America's first government shaped our constitutional tradition? Subscribe now for our next episode exploring the similarities and differences between the Articles and the Constitution that replaced them.

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Chapters

• 0:00 Introduction to Articles of Confederation
• 2:33 Defining the Articles' Structure
• 4:36 Successes: The Northwest Ordinance
• 6:33 Problems with the Articles
• 9:49 Madison's "Vices" Critique
• 13:46 Broader Recognition of Articles' Flaws

Transcript

Speaker 1: 0:46

Welcome back to Civics in the Year. Today we're going to start talking about the Articles of Confederation, and you know the Articles of Confederation get a bad rap. But we have Dr Sean Beinberg with us today and Dr Beinberg, can you let us know what were the Articles of Confederation? Why didn't they work? And then were there some good things about the Articles?

Speaker 2: 1:07

Yes, so the Articles of Confederation are the initial sort of collective governing document of Confederation, fundamentally create by their own wording a league of friendship or basically a confederation. You know federal. In that sense it's closer to what we would think of as like NATO today, where it's sort of a military and foreign policy kind of alliance. But it is not a sort of general governing document. It doesn't create a nation. Most power still remains with the separate sovereignties under the Articles of Confederation. That's still true today of the United States under the Constitution. But the balance has been shifted much more heavily. Where there's a complicated divide in sovereignty, the Articles of Confederation are very blunt. The style of this confederacy is the United States of America. Each state retains its sovereignty, freedom and independence in every power, jurisdiction and right which is not by this confederation expressly delegated. The states enter into a firm league of friendship with each other for their common defense, the security of their liberties and so on. So they very much are a foreign policy oriented. Basically defense, not exclusively but fundamentally they're a foreign policy and defense thing. So they create protocols in which the states send delegates Again. This is like NATO or the United Nation the states vote, each state basically gets a vote. They can send different numbers of delegates, but then they sort of have to speak amongst themselves, and that's how the Continental Congresses have run, so like, if you watch the John Adams miniseries, for example, you see, you know the Pennsylvania folks all huddled around a table talking, but Pennsylvania still, in the end, only gets to cast one vote, new York only gets to cast, you know, one vote, or whatever. So the Articles of Confederation is written and this is worth emphasizing during the American Revolution, right? So they don't have this moment like they have the luxury at the Constitutional Convention of hanging out for a long, long time and deliberating and going for drinks afterward I mean, they're not like literally riding it on the run, but it's not that far from it where these are people who are engaged in active insurrection against the government, and so they got to be a little a little, a little brisk in some ways. So that results in a few problems. It results in a few things that actually they think that they do well, and we'll talk about those in this and the subsequent podcast. But the fundamental problem, actually, I'll start with the good first. I'll be optimistic and out of character for once.

Speaker 2: 4:04

The one thing that they're often, even by the harshest critics, usually credited with is the successful passage of the Northwest Ordinance, which then gets repassed by the US Constitution. So the Northwest Ordinance is the document that gets initially drafted by Thomas Jefferson, actually quite significant parts of it. Especially I think this is striking the anti-slavery language in the Northwest Ordinance that restricts slavery in these territories. But the Northwest Ordinance basically sets the rules by which the territory of the United States so it's not attached to one of the states, but the stuff that's been given over to the country collectively by the British how that's going to be made into new states. And so it creates a very thoughtful and orderly settlement process in which they can sort of get territorial status, and so they get to elect legislators, but the governor is appointed, and so they get sort of training wheels, versions of being a state. When the population gets large enough and they've built a constitution, they can apply for statehood. And so that you know, that's setting that precedent to that logic of how do we get new states is why we aren't just 13 or maybe a couple of them that get carved off Kentucky, virginia, but Kentucky out of Virginia, maine out of Massachusetts, but how the United States is able to ultimately expand is a result of the Northwest Ordinance. So it's easy to look over that, but that's an important success and it serves as a model for future settlements. And again, I think, importantly, the Northwest Ordinance also ends up being the source of the language that becomes the 13th Amendment, which is going to be anti-slavery, one that's passed in Reconstruction.

Speaker 2: 5:41

The other thing that is worth noting is the United States is able to survive. Now that might seem like a low bar, but it's not obvious that the United States is not going to get carved into little pieces or swallowed up or something in the 1780s. It's a very real possibility, and this is also why I think that folks would say, oh, they should just walked away from the Constitution and, like, tried their luck, like yeah, that's easy in hindsight, but the experience that they'd seen, for example in Europe, is you know, some little Italian principality calling in the French to fight off the Spanish or whatever, and then the French just decide to stay. You can imagine a universe where the colonies or the states excuse me sort of get picked off one by one in little coalitions with the other thing, and the Articles of Confederation creates a government that's at least able to ward that off. Maybe not forever, not as effectively as the US Constitution, but the fact that there is still a United States of America in 1787, 1789, that's not a guarantee at the time that the treaty ending the American Revolution happened. So it's worth giving them credit there. So there are others, but I would say those are the two main ones worth giving them credit there. So there are others, but I would say those are the two main ones.

Speaker 2: 6:58

The problems with the Articles of Confederation there are quite a few of them. Probably the best explanation of these is a document that Madison drafts in preparation for the US Constitutional Convention. It's called the Vices of the Political System of the United States. It's basically an internal memo he's created for himself, but he goes through there and he explains the major issues with what he sees as the governments more broadly. Several of these, toward the end, are critiques of the state constitutions, and that's a separate podcast, but most of it is focused on problems with the articles itself. The first one that he mentions, which I think is the most obvious one, is, he says, failure of the states to comply with the constitutional requisitions.

Speaker 2: 7:40

Turns out that states don't like to do things like give money away when they don't have to. So, as I glibly tell my students, the universe where the war is happening the British are coming, give us the money or the British are going to capture and burn down your capital has a very different tone than give us the money because we have to continue funding something that's happening that you're not that worried about. Right, you're a state legislator and you say I can either spend my money on roads or sending it to the Articles Congress. Your voters care more about the road, right, so they're going to get resistant to that. There's no, basically, way for the articles Congress to get money Effectively. They sort of figure out how much the states owe and then they send them a bill and sometimes the states pay the bill and sometimes they don't. So that's a failure. That the articles basically can't generate its own revenue in a meaningful sense.

Speaker 2: 8:37

And Madison points out that the states are basically able to push around the feds in some ways, but the federal it doesn't have the authority to sort of implement and enforce its own laws. Almost everything is a variation on those two. That the articles fundamentally cannot directly operate on individuals and has to go through the states and doesn't have a way to make its will implemented on its own. It has to have the states fund it, act on the citizens and generate the revenue, and so the vices are largely all variations on that. So the states are pushing around the feds and the feds can't tell them no, even when it's something that the articles actually clearly gives to the feds. The states are violating treaties, which again has this with other countries, which has the problem of potentially pulling them into a foreign policy, international affair. So that's a problem.

Speaker 2: 9:28

Madison notes that the states are screwing around with each other's rights, ironically that they're basically putting restrictions on visiting other ports and things like that. So even if you care about states' rights, he says, actually the articles are pretty bad at protecting even those. He notes that the states, under the articles, don't have the ability to appeal for help if they're having internal violence. So if you're the state legislature, if you care about states' rights, you want your state legislature to be able to maintain law and order. But if your state government is weak, you can't call on an adjacent state really for help. And so he says, actually if we want to protect states' rights, we need to empower the feds to come in and help the states at the state's request. Worth emphasizing this is, I see, a problem. We can roll the feds in here, but the states can't even basically say, hey, help us out, help us put down this rebellion.

Speaker 2: 10:19

So he points out to that as a problem. Help us out, help us put down this rebellion. So he points out to that as a problem. And he says there's other places where we sort of need uniformity of laws, so something like naturalization. You know that sort of needs to be a common rule of who is a citizen. So you potentially want to have that be a sort of nationally decided issue. Again, even if you care about states' rights. He points out again that there's no ability to enforce its own laws. Hey state, do you send your police force to enforce our few laws? No, we're not going to do that.

Speaker 2: 10:52

And then one that he points out that connects to the thinking about the state constitution is he says the Articles of Confederation he kind of hints at are almost fundamentally illegitimate, because he says that they weren't approved by sort of the people in the collective, that the state legislatures increasingly by the end have gone through and ratified it, but that the people more broadly have never really bought into this system. Madison is not somebody who is in a direct democracy and the people immediately get what they want when they want it, asap. But he does ultimately think that it's a Republican form of government and political authority ought ultimately to come from the people and he worries that the articles don't have that. Now it's worth emphasizing real quick, though just as an additional thing. This is not critiques that are unique to Madison.

Speaker 2: 11:39

So Richard Henry Lee, who ends up being a critic of the Constitution, writes a letter to George Mason, who is a member of the Constitutional Convention, who also then ends up as a critic, and he lists his problems with the articles, and the list is actually pretty similar. He says that the states are basically freelancing on foreign policy. That's a problem. He points out the articles requires nine votes to affirmatively do most things. There's a couple little technical things that don't take nine, but basically it's nine to do most things and unanimous to amend. So all it takes is one state saying we don't care, we're out or we're not even going to show up, and so that they can block things just by not doing anything. Mason or, excuse me, richard Henry Lee, thinks that's a problem. He thinks that the ability of the states to run their own currencies is a problem that's also something that Madison objects to, versus having common currency exclusively in the federal government then goes through and says now we got to be cautious and not overcorrect and make this constitution too strong as a result.

Speaker 2: 12:44

But most folks in the 1780s recognize there are problems with the articles and so they keep doing these little proto conferences. How can we tweak it, how can we work on it? But the problem is that particularly Rhode Island just doesn't care, and so they're sort of forced into doing something a little more radical. So the article does some things well, and we'll talk about in another podcast how it parts of it to carry over to the US Constitution. But fundamentally its problem is that it can't enforce its own laws. As Madison says in Federalist 39, the real issue is not what the scope of its powers are. Those are still basically pretty good and largely carry over to the US Constitution. But it can enforce its own laws and that's a problem.

Speaker 1: 13:28

Fantastic and, like Dr Beinberg said, we are definitely going to go into the next episode looking at differences and similarities between the Articles and the Constitution. So make sure you join us for that, dr Beinberg, thank you.