Where Does the Constitution Come From? Part One: The Articles of Confederation

Welcome back to Level One of Constitutional Perspectives!

Last time, I covered what the Constitution is: the kind of thing it is, the basic function it performs. Next, I want to canvass where it comes from: the history, briefly told, of how the Constitution came to be. In fact it will take me several lessons to cover this material, which is of course of paramount importance to the entire project. This lesson will cover the constitutional order of Revolutionary America prior to the adoption of the Constitution we know and love today. The next installment, then, will discuss the actual drafting and adoption of the document. (Recall that for purposes of Level One I am assuming absolutely no prior knowledge on the part of the reader, so much of the story that I am about to tell will likely be quite familiar to much of my audience.)

As some of you may know, the United States of America declared its independence from Great Britain on July 4th, 1776. Prior to that time, the "States" had been British colonies, thirteen of them to be precise. These thirteen were not the whole of "British North America," which also included much of what we now know as Canada, as well as numerous Caribbean islands. But it was these thirteen that came together in the First Continental Congress in 1774 to press their grievances against Britain, and these thirteen that, two years later, declared themselves to be "free and independent States."

The story of how the American colonies got to the point of independence is actually really fascinating; in my view it's an integral, and much neglected, part of American constitutional history, with real relevance to how we should understand the post-Independence constitutional order. But this is Level One, so for present purposes we can begin the story in 1776.

Which, the keen reader may have spotted, is some thirteen years prior to 1789. That's right: the Constitution significantly post-dates independence! The entire Revolutionary War took place under an earlier constitutional order: the Articles of Confederation. But even the Articles were not yet in place by independence – they were drafted in 1777, and officially went into effect in 1781 – and thinking of the Articles as a first-draft of the Constitution is not, I think, altogether illuminating.

So let's talk about how America was governed as of 1776. As I mentioned above, the Continental Congress first met in 1774. It is tempting, therefore, to say that this Congress was the fledgling nation's government. But I think it is probably more accurate to say that the new nation was governed by the states. Each of the thirteen states had, until July 4th, been a British colony, and had operated under a "charter" from the British Crown. When I say "charter," I mean it very much in the sense of "corporate charter." The colonies were basically corporate ventures in their origin, not so different from the various West India Companies, or for that matter the British East India Company. (There's interesting stuff in here about the history of corporations law, too, but that is very much not my area haha.)

But over the century and a half prior to independence, these charters had evolved into something like government institutions for the colonies. The two most important institutions in these colonial governments were typically the royal governor and the local representative assembly. The former would be appointed by the Crown, and was therefore accountable to London, not to the local populace. The latter, on the other hand, was elected by the colonists themselves. Much of the conflict that led to the Revolutionary War was between the royal governors and the assemblies.

And I think a simple way to describe the constitutional order on July 5th, 1776 is simply that the royal governors had been driven from the scene, and the newly independent states were governed by their representative assemblies. The Continental Congress, then, served only to coordinate. The states were fighting for their independence, and the Congress was helping them act in concert to achieve their common goal. I should say that the exact nature of the Union as of 1776 is an immensely complex theoretical question, which I will discuss in considerable detail in Level Two. What I have sketched here is only one view of it.

But it helps demonstrate the rather informal nature of the Continental Congress, and of the Articles. They were, in one sense at least, just a scheme of cooperation among the states, informal at first and then formalized in the Articles. Note that this is why the Articles only formally took effect in 1781: that was when the thirteenth and final state, Maryland, signed on to them. The Articles existed because the states had all agreed on them, had agreed to operate on those terms.^[1]

This is reflected in the structure of national government under the Articles: famously, Congress could not itself impose taxes; instead, it was to secure funding for the national government (such as it was) by asking the states to contribute funds. This was, of course, a disaster. Indeed this is one of the classic examples of the free rider problem in economics, and of collective action problems in general. The money each state contributed would be spent on behalf of the entire country, so making contributions was, for each state, a losing proposition. And Congress could only ask nicely, it had no real power to compel the states to pay up.

The dire exigency of the war managed to scare the states into contributing just enough to actually, you know, win the war. But not so much after the decisive victory at Yorkstown in 1781, and then the adoption of the Treaty of Paris in 1783. And this was a Big Problem right away. In order to make our meager wartime funds go as far as possible, America had paid many of its soldiers in IOUs. Then the war ended, and the war veterans wanted to get paid. And Congress had... no real ability to raise the money to pay them.

This was probably the single greatest impetus for the creation of the Constitution. Disgruntled soldiers are no small problem for any regime, and if the financial problem could not be solved, there was a very real chance of a mutiny. This was basically what got General George Washington involved with the project to fix the Articles: he had to spend much of 1783 soothing soldiers' anger and putting down various would-be mutinies.

This was hardly the only problem under the Articles, of course. Those of you who studied American history in high school may recall the name Shay's Rebellion, for instance. But the common theme was just that the Continental Congress, under the Articles, lacked the tools to manage any kind of problem at all. Within just a few years after the end of the war it was already quite clear that something had to change.