October 1993, Free Nation Foundation Forum on Constitutions

an analysis of


as a model for the Institutions of Freedom

a presentation by
Bobby Yates Emory

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Can the Articles of Confederation be useful in the search for the institutions necessary for the implementation of freedom? It survived two practical tests. It allowed a large number of people of divergent backgrounds and circumstances to live together with a minimum of internal strife for eleven years of transition from being subjects of a monarch to becoming self-governing free men. It allowed a less industrialized, poorer nation to defeat the strongest military force in the world.

The Articles contained many innovative features we should consider for future institutions.

The basic structure was for the member states to remain sovereign and to delegate only limited powers to the federal level. All powers not explicitly delegated were retained by the states. This structure was, in comparison to the most modern nations, one of strong states within a weak federal union.

The more important issues before the Congress required a supermajority for action. Going into debt, for instance, required approval of nine of the thirteen states. This made action slower and more difficult but made it harder for Congress to trample citizens' rights.

A Council of States was available to run the government when Congress was not in session. This allowed members of Congress to return home part of the year and thereby remain citizen legislators rather than becoming professional politicians.

A citizen legislature was further insured by requiring rotation in office. No one could serve in Congress more than three years in six.

Several sections were directed to maintaining a Congressional delegation that answered to the States. Members of Congress served at the pleasure of their State Legislature. The members' expenses were met by their State, not at the federal level.

Each state was allocated one vote in Congress, even though it could have from two to seven members.

Members of Congress were not allowed to hold other offices in the government. This was probably intended to prevent the emergence of one form of special interest.

To prevent the Federal Government from becoming independently powerful, it was not allowed to tax directly. Federal taxes were apportioned on the basis of real estate valuation of each state. But taxes were levied on citizens by the States.

A compromise was reached to continue State involvement in defense forces, but also recognize that the benefits accrued to all. Defense forces were raised and provisioned by States. The costs were reimbursed from the Federal treasury.

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Surprising Omissions

To our eyes today, there are some omissions from the Articles that could not be allowed if we were to closely model a constitution on the Articles.

There was no Bill of Rights - regular feature of most every constitution since. (Indeed, many people argued that no Bill of Rights was needed for our current Constitution.)

Slavery was not prohibited and, in fact, continued to flourish during the life of the Articles.

Indian rights were not recognized. Explicitly, the States were give great latitude to deal with native Americans as enemies.

Women's rights were not recognized. The States were allowed to set their own qualification for voting and other rights and most treated women as second class citizens.

No mechanism was provided to guarantee individual rights.

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Lessons to be Learned

Several lessons can be learned from the Founding Fathers' experience with the Articles.

Unfortunately, it is difficult to guarantee perpetuity or we would not be needing to consider these issues. Even though the Articles were battle tested, people who wanted a government to help the rich get richer were able to replace the original USA with a more powerful Federal system. The proposal prompted Samuel Adams to suggest the people wanting the change were selling out the Revolution.

Opponents to a structure like this may not understand the benefits of slow deliberations. The Congress was widely criticized for being slow to act. Sometimes it was impossible to act on an issue because neither side could marshal the required supermajority. Although we know that taking no action can be better than taking the wrong action, many people believe the government should "do something, even if it is wrong."

The Articles helped bring about perhaps the largest single advance ever in human freedom. Even though we cannot say that because of the Articles alone, freedom advanced, certainly the Articles were part of the process. While the freedom obtained under the Articles was not complete and was not for everyone, it was a dramatic break with past governmental systems.

The Articles were a very useful governmental tool in a time of dire need. Whatever failings an observer may note, the Articles set the stage for the next evolution in self- government. The Federal republic that followed was modeled on the Articles of Confederation.

We need to understand why it failed after eleven years. (Suggested reading: Charles Beard "Economic Basis of the Constitution".) A legitimate complaint had been raised that interstate commerce was being restricted and internal tariffs were being imposed by the States. A less legitimate complaint was raised that the deliberations of Congress were too slow. Citizens need to mature beyond the three year old stage and realize that their long term interests will probably best be served by slowing a rush to judgement. One positive suggestion for improving the public patience was to provide a congress with a rapid means of responding to public suggestions with the answer "That is not in our powers." An even less noble motivation was the political maneuvering by speculators who had bought Revolutionary War bonds at large discounts and were now seeking a way to collect on the bonds at face value. (Further suggested reading: Milton Friedman "Tyranny of the Status Quo.")

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Pitfalls and Cautions

From the practical experience with the Articles, we can note several problems that could arise in trying to use the Articles as a model.

If more than minimal governmental actions are required for defense (or other purposes), the implementation of a government based on the Articles would require strong states. If we could assume peaceful, weak, or no competing governments, there would be little need for rapid governmental action and the states would not be tested. In most real circumstances, as exemplified by Lebanon, Bosnia, and Somalia, we are more likely to have too many competing governments than to have none.

Any structure we design will probably have this same need, but the experience with the articles proved the Articles needed continuing defense from its supporters. As mentioned above, the Articles were not automatically perpetual. It would have required a majority in at least one state to have maintained the Articles in effect. Unfortunately, not even one state could muster a majority in defense of the Articles. Even more difficult, continuing defense of all the principles will be forever needed.

Part of the genius of the Articles, may have been that it made no guarantees of individual rights. The government was weak enough to not be much of a threat to individual rights. Maybe the rights area is analogous to the economic area. Any government strong enough to give you everything you want is strong enough to steal everything you have. Perhaps we can postulate: Any government strong enough to guarantee individual rights may be strong enough to destroy individual rights.

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The Articles of Confederation provide us with a useful model that has been tested in the real world.

The Articles of Confederation were an integral part of the greatest single increase in freedom in human history.

The Articles of Confederation were superseded.

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