Articles vs Constitution: What Changed and What Remained

The delicate balance between federal power and state sovereignty has defined American governance since its founding. Dr. Beienberg returns to explore the crucial evolution from the Articles of Confederation to the Constitution, revealing subtleties often overlooked in standard historical narratives.

Rather than a simple shift from "weak" to "strong" government, Dr. Beinberg articulates how the Constitution created a "stronger government" that preserved federalism while addressing specific deficiencies. The fundamental transformation was from a league (similar to NATO) to a government capable of enforcing its laws directly upon citizens. This shift eliminated the accountability problems where federal officials had to rely on state implementation.

What's particularly fascinating is how many structural similarities persist between the documents. Both operate on principles of limited, enumerated powers, with the Constitution maintaining this framework while adding enforcement mechanisms. The Constitution's bicameral legislature balanced state interests with population representation, while its amendment process remained challenging but not impossible, like the Articles' unanimity requirement.

Madison's perspective from Federalist Papers 39 and 45 provides crucial context, describing the Constitution as "federal in scope, national in execution." Perhaps most surprising is Madison's view of the Commerce Clause as a minor addition to preventing interstate trade wars. This power would later become central to constitutional debates. This reveals how even the Founders couldn't fully anticipate how their carefully crafted compromises would evolve.

For anyone seeking to understand American governance, this exploration of constitutional development illuminates how the Founders fixed critical problems without overcorrecting. By examining what changed and what remained consistent, we gain deeper insight into the balancing act that has defined American federalism for over two centuries. What aspects of this constitutional balance are most relevant to today's political landscape?

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Chapters

• 1:34 Welcome to Civics in a Year
• 2:07 Fundamental Differences Between Systems
• 3:02 Similarities in Federal Structure
• 5:15 Key Constitutional Innovations
• 7:28 Commerce Power and Madison's Perspective
• 13:01 Federal in Scope, National in Execution

Transcript

Speaker 1: 0:48

Welcome back to Civics in a Year. We are in our Constitution era, if you will, and today we're looking at some of the significant differences and major similarities between the Articles of Confederation and the Constitution. If you are not familiar with the Articles of Confederation, the episode right before this episode 62, dr Beinberg, goes into what they were, why they didn't work, and we have Dr Beinberg back today to kind of talk about this. So, dr Beinberg, can you walk us through differences, similarities between the Articles of Confederation and our Constitution, right?

Speaker 2: 1:21

So I always go back to it's probably my Federalist paper, federalist 39, but it sort of articulates a lot of these sort of basic, basic issues. The fundamental difference between the Articles of Confederation and the US Constitution is that the Articles of Confederation creates basically a league or an alliance or something like NATO, and the US Constitution creates a government that has authority and can act on citizens. That authority is limited, like the Articles, but it has the ability to act directly on citizens. So the Articles creates basically an alliance and the US Constitution creates a government, albeit a structured and limited one, and so I think it's worth starting thinking about that as a fundamental similarity between the two, which is under both of these texts it is a federal model of limited and enumerated powers. So Article 1, section 8 of the US Constitution is a list of Congress shall have power to do X, y, z, a, so on and so forth. Right, so it's a list of powers that it has, and it says all legislative powers herein granted in Article 1, section 1, which is to say it only has the powers we've given it. Here. The critics, the skeptics, the so-called anti-federalists worry that they want this made redundantly, promised and clear, and so that's where the 10th Amendment comes from. But the 10th Amendment, as important as I think it is, as Justice Stone later says in the Darby case, it's a truism in the sense that it is repeating and making clear what's already in the original Constitution, which is this is one of limited and enumerated powers. So it's Article I, section 8 in the US Constitution, it's Section 9 in the Articles, but here's a list of powers. That is a fundamental similarity. Here's the list of powers. It can't do what's not in that set of powers.

Speaker 2: 3:14

Section 2 of the Articles of Confederation the wording is slightly different but it functionally is akin to a Tenth Amendment Makes explicit if we haven't written a power here, it fundamentally still lies with the state government. So yes, I am emphasizing this because we have this narrative, which is the Articles of Confederation creates a weak government, the US Constitution creates a strong government. The way that I always think it's more accurate is the Articles of Confederation creates a weak government, the US Constitution creates a stronger government. But most of the critics of the articles at the time recognized it needed to be stronger, but they didn't want to then overcorrect. Fundamentally, I would argue, the main claim of the Federalist Papers is we haven't overcorrected. We've plugged the leaks, we've patched the holes, we've fixed the problems that were with this articles, but we then didn't go back and basically undo the revolution by building this ultra powerful British Parliament. So I think it's easy to overstate the differences.

Speaker 2: 4:16

But in terms of the scope of the powers as Madison says in Federalist 39, they are both fundamentally federal. The central government only gets powers that are given to it. It has features of both that are common in terms of what a league would have or an alliance or a treaty. There's extradition If you commit a crime in one state you can be sent to another state and there's protocols for that, although some of them are written ends up being a problem later with similar language in the Fugitive Slave Act, where it's all written in passive voice, written in sort of passive voice, but the ability to send somebody for an extradite criminal. That's a similarity.

Speaker 2: 4:51

Representation by state exists in both the Articles of Confederation and in part of the US Constitution. So the Senate is basically representing the states as states. Each state gets an equal number. That's a little different insofar as they get two fixed members versus sort of pick however many you want, not literally however many you want but pick within the range in the Articles and then decide amongst yourselves. But that's similar. So the Senate, its allocation, is, I would say, conceptually similar to the Articles of Confederation.

Speaker 2: 5:24

There are some limits on state foreign policy in the Articles of Confederation as well. Strikingly actually, some of these get softened in the US Constitution. If you look through all the nuances of like when the states can buy ships and whatnot, there are some places they actually get a little more maneuvering room. But fundamentally just to sort of preview one of the differences the US Constitution can enforce treaties, so if the states are actually breaking a treaty there's an enforcement mechanism. But in terms of the explicit list of bans that's kind of similar in both of them. So there are others, but I would say that those are the main ones, the dissimilarities.

Speaker 2: 6:02

The fundamental one is that the Articles of Confederation has no ability to enforce its own laws. This is what Madison says in Federalist 39, which in some ways is recapitulating parts of his Vices of the United States, the political system of the United States essay right, that under the articles they had to basically ask for the states to do their dirty work for them, whereas the US Constitution creates an enforcement mechanism and in a way this is actually also freeing of the states because it means and this gets built later on in US con law into what's called the anti-commandeering doctrine that the federal government cannot force the states to do federal law. So if you're a state official right into the old articles model, or if you're able to commandeer the states right quite reasonably, you could be a state legislator or a state you know, a sheriff in a local county or something, and you're being given instructions from the feds and you're going to take the heat for something that a government half a country away did, whereas you know, by creating basically a clear line of accountability, the states are accountable for what the states do and the feds are accountable for what the feds do, for good and bad. They can't do this sort of finger-pointing problem, which is what had been kind of an issue with the articles. So that means that we have an independent executive, which the articles basically didn't have. So the executive can enforce the law. Laws can be directly binding on US citizens. They don't have to have the states effectively as an intermediary and sort of.

Speaker 2: 7:35

Relatedly, the Articles of Confederation does not have effectively a freestanding judiciary If they have these disputes. It sort of goes to this sort of council of the states, effectively, whereas Article 3 of the US Constitution creates a judiciary, the critic Brutus still says well, they're still going to be biased on behalf of Team Federal, which is a separate argument, but it at least tries to create a structure to adjudicate disputes between the states and between the states and the feds. That basically didn't really exist in an effective way under the Articles of Confederation. So some other dissimilarities it's bicameral. It is like the state constitutions that they liked, like Massachusetts, and not like either the Articles or the state constitutions that they didn't like, like Pennsylvania.

Speaker 2: 8:23

So it has effectively a more difficult process to pass law. So the Articles has one that's effectively almost impossible to pass law. They don't want to overcorrect and make it super easy, but they're trying to basically say let's make it easier. So we want bicameralism to make it harder than one house, but not this ultra high supermajority that the Articles required. I alluded to one of the similarities being that the allocation of representation is by states in terms of half of it, which is the Senate, the other half is the House of Representatives, which is allocated by population, whereas under the Articles of Confederation each state, from the smallest to the biggest, has literally the exact same influence over the state legislature or the national legislature. So that's a difference. Again, it's not an overcorrection where they've said the states don't matter, but they've said we're going to put a little bit of a restriction on that or a little bit of a balance, and then the amendment process is still again tough, but it's not as effectively impossible as it was under the articles.

Speaker 2: 9:29

Under the articles tough, but it's not as effectively impossible as it was under the articles. Under the articles you had to have unanimous consent to approve a change. And that's how NATO is, for example, right, that's why it was a big deal recently when there was a discussion of do we admit new members, do we change whatever? And you have to go through and get every single sign off and that's how you would in a league. But at the same time the amendment process in Article V still requires a supermajority. Right, it's still of the states. It still wants to make sure that basically there's broad buy-in among the states' states and not just a couple of the big states pushing everybody else around. So again, it's this idea of moving toward a balance in the US Constitution. We care about federalism, but we're not pure federalists in the amendment process.

Speaker 2: 10:11

Another one that's a dissimilarity that was one that Madison and many of the other critics get quite upset about is that the states had their own currency-making authority. It was a concurrent power. Both the states and the feds could make money. The feds can say basically what the alloy had to be. You couldn't say, oh, here's a dollar of silver, silver and it's all nickel. The Articles Confederation could stop that, but they still could create their own coins and their own paper. And the US Constitution makes the currency making exclusively in the hands of the federal government. So that's a shift.

Speaker 2: 10:44

Another one that I think is an important dissimilarity. In a sense Madison in Federalist 45, which is one of my other favorite Federalist papers, is talking about the differences in powers between the Articles and the US Constitution. He says look, we still fundamentally have a limited enumerated set of powers. Madison says the main difference we've been talking about is that it can now enforce its own laws. But he says the one major change we've done to the scope of the powers is we have added a commerce power to put down trade wars.

Speaker 2: 11:15

Now Madison observes in Federalist 45 and says effectively, look, these anti-federalist crazies are complaining about all kinds of stupid stuff, but they don't even seem like they're complaining that much about this one, so we can settle down about that.

Speaker 2: 11:28

Maybe you should counsel how we interpret that, whereas the Commerce Clause, as we'll talk about in a subsequent podcast, ends up being a major engine of policy and constitutional disagreements. That would have been baffling to Madison and others who thought this is like look, let's just stop the trade wars between the states, let's make that one of our shifts from the Articles to the US Constitution. So, at a fundamental level, the shift of the Articles to the US Constitution is one between a league to a real government, but it is still one of fundamentally federal and limited powers. But again, the Brits think this is crazy because it's a weird theory. It's one that can enforce its own laws, so, as Federalist 39 says, it is federal in its scope and national in its execution, and that this gives us effectively the best of both worlds. We can keep the parts that we liked of the articles, and of which there are structurally several, but we can move away from the failures.

Speaker 1: 12:35

And listeners. We do have an episode on Federalist 39 already available and we will have an episode on Federalist 45 coming up soon. Dr Byenberg, thank you so much.