A Concise Guide to the Articles of Confederation as a Source for

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A Concise Guide to the Articles of Confederation as a Source for A Concise Guide to the Articles of Confederation as a Source for

Determining the Original Meaning of the Constitution Determining the Original Meaning of the Constitution

Gregory E. Maggs

George Washington University Law School

, gmaggs@law.gwu.edu

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Recommended Citation Recommended Citation

Maggs, Gregory E., A Concise Guide to the Articles of Confederation as a Source for Determining the

Original Meaning of the Constitution (2017). 85 Geo. Wash. L. Rev. 397 (2017); GWU Law School Public

Law Research Paper No. 2017-18; GWU Legal Studies Research Paper No. 2017-18. Available at SSRN:

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A Concise Guide to the

Articles of Confederation as a Source

for Determining the Original

Meaning of the Constitution

Gregory E. Maggs*

BSTRACT

Judges and scholars often refer to the Articles of Confederation when

making claims about the original meaning of the United States Constitution.

To help readers understand and evaluate such claims, this piece describes the

formation and content of the Articles of Confederation and explains four ways

in which the Articles may provide evidence of the original meaning of the

Constitution. The two appendices to this piece contain an annotated copy of

the Articles of Confederation and a table linking provisions of the Constitu-

tion to their antecedents in the Articles.

ABLE OF

ONTENTS

NTRODUCTION

................................................. 398

I. O

VERVIEW OF THE

RTICLES OF

ONFEDERATION

..... 401

A. The Continental and Confederation Congresses ..... 401

B. Key Sources for Research Concerning the Articles of

Confederation ....................................... 403

C. Description of the Articles of Confederation ........ 406

D. Drafting the Articles of Confederation .............. 409

E. Approval and Ratification ........................... 411

F. Successes and Shortcomings ......................... 414

G. Replacement by the Constitution .................... 417

II. D

EFINITIONS OF

RIGINAL

EANING

................... 418

III. F

OUR

AYS OF

SING THE

RTICLES OF

ONFEDERATION TO

AKE

LAIMS

BOUT THE

RIGINAL

EANING OF THE

ONSTITUTION

............ 420

A. Claims Based on a Comparison of the Text of the

Constitution to the Text Used in the Articles of

Confederation ....................................... 420

* Professor of the Law, The George Washington University Law School. The Author

thanks the Law School for its generous financial support and is grateful to his research assistant,

Mr. Frank Chang, for improving the Article in many ways.

March 2017 Vol. 85 No. 2

397

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398 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

B. Claims Based on a Comparison of the Structure of

Government Set Up by the Constitution to the

Structure of the Government Established by the

Articles of Confederation............................ 424

C. Claims Based on Extrinsic Evidence of the Framers’

Goals in Replacing the Articles of Confederation

with the Constitution ................................ 427

D. Claims Based on the Controversial Theory that the

Constitution Did Not Fully Replace the Articles and

that the Articles Therefore Continue to Supplement

the Constitution ..................................... 428

ONCLUSION

................................................... 431

PPENDIX

A: A

NNOTATED

RTICLES OF

ONFEDERATION

.... 432

PPENDIX

B: T

ABLE OF

ONSTITUTIONAL

ROVISIONS AND

ELATED

ROVISIONS IN THE

RTICLES OF

ONFEDERATION

................................. 448

NTRODUCTION

The Supreme Court has looked to the Articles of Confederation

in more than 150 cases for guidance in determining the meaning of the

Constitution.

The most famous example appears in McCulloch v. Ma-

ryland.

In that case, the Court held that Congress has implied legisla-

tive powers based in part on a comparison of the text of the Tenth

Amendment of the Constitution to the text of an antecedent provision

in the Articles of Confederation.

Writing for the Court, Chief Justice

Marshall observed that while the Tenth Amendment limits Congress

to those powers “delegated” to it by the Constitution,

Article II of

the Articles of Confederation previously had limited Congress to

those powers “expressly delegated” by the Articles.

Chief Justice

Marshall concluded that omission of the word “expressly” indicated

that the Framers intended the Constitution to include implied con-

gressional powers. He reasoned: “The men who drew and adopted this

amendment had experienced the embarrassments resulting from the

insertion of this word in the articles of confederation, and probably

omitted it to avoid those embarrassments.”

A Westlaw search of “articles of confederation” in the Supreme Court database yields

175 cases.

17 U.S. (4 Wheat.) 316 (1819).

Id. at 406–07.

Id. at 406 (quoting U.S. C

ONST

. amend. X).

Id. (citing A

RTICLES OF

ONFEDERATION

of 1781, art. II).

Id. at 406–07.

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 399

More modern examples of similar reasoning are abundant. Mem-

bers of the Supreme Court have cited the Articles of Confederation in

ten constitutional cases since John Roberts became Chief Justice, in-

cluding in major cases such as National Federation of Independent

Business v. Sebelius,

McDonald v. City of Chicago,

and Arizona v.

United States.

Thousands of law review articles and hundreds of lower

court opinions have also relied on the Articles of Confederation in

addressing constitutional issues.

The Articles of Confederation, in-

deed, now appear to have almost as much influence in efforts to deter-

mine the original meaning of the Constitution as other key sources

such as the notes from the Constitutional Convention, the Federalist

Papers, and the records of the state ratifying conventions.

Despite the significant role of the Articles of Confederation in

constitutional interpretation, most lawyers and judges have received

little instruction about them. They typically know that the Articles of

Confederation set up a weak union whose shortcomings became ap-

parent in the 1780s and led to adoption of the Constitution. But they

usually do not study in greater detail the content of the Articles of

Confederation or how their provisions relate to the Constitution. This

brief Article seeks to address this situation by providing necessary in-

formation to those wishing to make or assess arguments about the

original meaning of the Constitution that rely on the Articles of Con-

federation. This Article complements four other recent guides by the

same Author addressing other sources of the original meaning.

Part I provides an overview of the Articles of Confederation. It

describes the Continental Congress and identifies key sources relating

to the Articles. It also outlines the content of the Articles and then

132 S. Ct. 2566, 2615 (2012) (Ginsburg, J., concurring in part and dissenting in part)

(addressing the constitutionality of federal health care regulations under the Commerce Clause).

561 U.S. 742, 819 (2010) (Thomas, J., concurring in part and concurring in judgment)

(addressing the constitutionality of a municipal gun control law under the Second Amendment).

132 S. Ct. 2492, 2511–12 (2012) (Scalia, J., concurring in part and concurring in judg-

ment) (addressing constitutionality of state law restrictions on immigration under the Supremacy

Clause).

A Westlaw search revealed 6046 law review articles and 1012 federal and state cases

referencing the Articles of Confederation.

Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original

Meaning of the United States Constitution, 87 B.U. L. R

. 801 (2007); Gregory E. Maggs, A

Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the

Original Meaning of the U.S. Constitution, 80 G

. W

ASH

. L. R

. 1707 (2012); Gregory E.

Maggs, A Concise Guide to the Records of the State Ratifying Conventions as a Source of the

Original Meaning of the U.S. Constitution, 2009 U. I

. L. R

. 457 (2009); Gregory E. Maggs, A

Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning

of the Constitution, 82 G

. W

ASH

. L. R

. 358 (2014).

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400 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

describes their drafting and ratification. It further discusses the excep-

tional achievements and failures of the government created by the Ar-

ticles of Confederation.

Part II discusses different definitions of original meaning.

Part III then critically examines four types of claims about the

original meaning of the Constitution that rely in one way or another

on the Articles of Confederation. These include:

claims based on a comparison of the language of the Constitution

to the language of the Articles of Confederation;

claims based on a comparison of the structure of the government

set up by the Constitution to the structure of the government

established by the Articles of Confederation;

claims based on extrinsic evidence of the Framers’ goals in replac-

ing the Articles of Confederation with the Constitution; and

claims based on the controversial theory that the Constitution did

not fully replace the Articles of Confederation and that the Ar-

ticles therefore continue to supplement the Constitution.

As this Article will show with specific examples from Supreme Court

decisions, each type of claim has certain strengths and weaknesses.

Knowing these strengths and weaknesses may help writers bolster

their own claims about the original meaning that rely on the Articles

of Confederation and assess such claims when made by others.

Appendix A contains an annotated copy of the Articles of Con-

federation. Appendix B presents a table showing current constitu-

tional provisions and their antecedents in the Articles of

Confederation.

Before going further, one additional preliminary point requires

mention. Although this Article discusses how the Articles of Confed-

eration might be used as a source for understanding the original

meaning of the Constitution, it takes no position on whether or to

what extent courts must follow the original meaning. That is an inter-

esting and important question that other works address.

Suffice it to

say that researchers may want to know more about the original mean-

ing of the Constitution even if they do not believe that the original

meaning should necessarily dictate the answers to modern constitu-

tional issues.

See, e.g., G

REGORY

E. M

AGGS

& P

ETER

J. S

MITH

, C

ONSTITUTIONAL

: A C

ONTEM-

PORARY

PPROACH

13–18 (3d ed. 2015).

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 401

I. O

VERVIEW OF THE

RTICLES OF

ONFEDERATION

A. The Continental and Confederation Congresses

In the 1760s and 1770s, an important question arose about

whether the Parliament of the United Kingdom had power to impose

taxes on the American colonies. The passage of the Customs Act (or

“Tea Act”) of 1772 was a key event in this controversy. The Tea Act

went into effect on May 10, 1773.

This Act required Americans to

pay a duty on all imported tea.

The tax was not large, and Parliament

in fact simultaneously subsidized the cost of tea by eliminating export

duties on tea shipped from Great Britain.

Through the Act, Parlia-

ment apparently hoped to achieve American acquiescence to taxation.

On December 16, 1773, opponents of the Tea Act staged the so-

called “Boston Tea Party” as a protest.

They took tea belonging to

the British East India Company and threw it into Boston Harbor, thus

preventing its sale and the collection of any tax.

Parliament re-

sponded by passing five acts in early 1774 that were designed to pun-

ish Massachusetts and keep other colonies in check.

These laws were

called the “Coercive Acts” in Great Britain and the “Intolerable

Acts” in America.

Among other things, the Intolerable Acts closed

the Port of Boston,

lessened the autonomy of the government of

The Customs Act, 13 Geo. 3 c. 44 (Eng.), reprinted in 30 T

TATUTES AT

ARGE

(Danby Pickering ed. 1773) (also known as the Tea Act).

See id. pt. II, at 76 (imposing a duty of £4 for every tub or chest of tea).

See id. pt. I, at 74–75 (“draw[ing] back” any duties for export of teas to any British

colonies in America).

The Port of Boston Act 1774, 14 Geo. 3 c. 12, pmbl. (Eng.), reprinted in 30 T

TAT-

UTES AT

ARGE

335 (Danby Pickering ed. 1773) (describing the Boston Tea Party); see also

Boston Tea Party, E

NCYCLOPAEDIA

RITANNICA

, https://www.britannica.com/event/Boston-Tea-

Party (last updated Feb. 2, 2007).

The Port of Boston Act 1774, pmbl., at 335.

See, e.g., The Administration of Justice Act 1774, 14 Geo. 3 c. 39, § V (Eng.), reprinted

in 30 T

TATUTES AT

ARGE

370 (Danby Pickering ed. 1773); The Port of Boston Act 1774

§ I, at 336–37; The Massachusetts Government Act 1774, 14 Geo. 3 c. 45, § I (Eng.), reprinted in

30 T

TATUTES AT

ARGE

382 (Danby Pickering ed. 1773).

Intolerable Acts, E

NCYCLOPAEDIA

RITANNICA

, https://www.britannica.com/event/In-

tolerable-Acts (last updated Apr. 1, 2015).

The Port of Boston Act 1774 § I, at 336–37 (providing that “it shall not be lawful for any

person or persons whatsoever to lade put, or cause or procure to be laden or put, off or from any

quay, wharf, or other place, within the said town of Boston”).

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402 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

Massachusetts,

and provided that British officials could be tried in

England, rather than Massachusetts, if accused of crimes.

The Intolerable Acts prompted Rhode Island, Pennsylvania, New

York, and Massachusetts to call for the colonies to hold an assembly

which became known as the First Continental Congress.

The First

Continental Congress met from September 5, 1774 to October 26,

1774.

At its conclusion, the First Continental Congress called for a

Second Continental Congress to meet the following spring.

In the

interim, fighting broke out in Massachusetts when British forces un-

successfully raided the towns of Lexington and Concord in April

1775.

The Second Continental Congress convened on May 10, 1775

and continued meeting until March 2, 1781.

During this time, Con-

gress directed the fighting of the Revolutionary War, declared inde-

pendence from the United Kingdom, and established the Articles of

Confederation.

In his eighteenth-century Dictionary of the English Language, Sa-

muel Johnson defined a “confederation” as a “league” or “alliance.”

This definition accurately captures the essential nature of what the

Articles of Confederation established among the thirteen North

American colonies that had declared their independence from the

United Kingdom in July 1776. The Articles of Confederation were not

The Massachusetts Government Act 1774 § I, at 382 (providing that “the charter,

granted by their majesties King William and Queen Mary to the inhabitants of the said province

of the Massachusetts’s Bay . . . and all and every clause, matter, and thing, therein contained,

which relates to the time and manner of electing the assistants or counsellors for the said prov-

ince, be revoked, and is hereby revoked and made void and of none effect”).

The Administration of Justice Act 1774 § V, at 370 (providing that an official indicted

for “murder, or other capital crime” allegedly committed during “suppression of riots, or in the

support of the laws of revenue, or in acting in his duty as an officer of revenue . . . may be tried in

some other of his Majesty’s colonies, or in Great Britain”).

See Office of the Historian, Bureau of Pub. Affairs, Continental Congress, 1774–1781,

U.S. D

’

TOF

TATE

, https://history.state.gov/milestones/1776-1783/continental-congress (last

visited Dec. 23, 2016).

See Journals of the Continental Congress, L

IBR

ONGRESS

, http://memory.loc.gov/

ammem/amlaw/lwjc.html (last visited Dec. 23, 2016).

See 1 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 102 (Worthington

Chauncey Ford ed., 1904) (“Resolved, as the Opinion of this Congress, that it will be necessary,

that another Congress should be held on the tenth day of May next . . . .”).

See Battles of Lexington and Concord, E

NCYCLOPAEDIA

RITANNICA

, https://

www.britannica.com/event/Battles-of-Lexington-and-Concord (last updated Aug. 12, 2010).

See L

IBR

ONGRESS

, supra note 24. R

Confederation, S

AMUEL

OHNSON

, A D

ICTIONARY OF THE

NGLISH

ANGUAGE

(London, J.F. & C. Rivington et al., 10th ed. 1792).

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 403

so much a constitution as a mutual defense treaty establishing a “firm

league of friendship” among newly-formed, co-equal states.

The drafting of the Articles of Confederation took place between

July 1775 and November 1777.

The subsequent state ratification pro-

cess was slow; the Articles were not ratified until March 1, 1781.

When Congress reconvened on March 2, 1781, it called itself “the

United States in Congress Assembled.”

Subsequently, many histori-

ans have referred to this body as the “Congress of the Confederation”

or “Confederation Congress” (although others still refer to it as the

“Continental Congress”).

The Confederation Congress met from

March 2, 1781 until March 4, 1789, when the federal government

under the Constitution took over.

Although the Articles of Confed-

eration did not remain in effect for a long period, experience under

the Articles paved the way for creating the far more enduring Consti-

tution.

As the subsequent discussion shows, the influence of the Ar-

ticles of Confederation remains discernable to this day.

B. Key Sources for Research Concerning the Articles of

Confederation

Researchers who are interested in discerning how the Articles of

Confederation may provide evidence of the original meaning of the

Constitution generally should start with a careful examination of the

text of the Articles. Appendix A contains an annotated copy of the

complete document, which is considerably shorter than the Constitu-

tion. The annotations explain difficult passages and link most of the

provisions to analogues in the Constitution. Appendix B contains a

table of constitutional provisions that have antecedents in the Articles

of Confederation.

RTICLES OF

ONFEDERATION

of 1781, art. III.

See 5 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 432 (Worthington

Chauncey Ford ed., 1906); see also Office of the Historian, Bureau of Pub. Affairs, Articles of

Confederation, 1777–1781, U.S. D

’

TOF

TATE

, https://history.state.gov/milestones/1776-1783/

articles (last visited Dec. 23, 2016).

See 19 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 223 (Gaillard Hunt

ed., 1912).

Id.

Congress of the Confederation, B

LACK

’

ICTIONARY

(10th ed. 2014).

See 19 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 31, at 223; 34 R

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 605 (Roscoe R. Hill ed., 1937) (final

entry of the Journal of the Continental Congress on March 2, 1789).

1 F

RANCIS

EWTON

HORPE

, T

ONSTITUTIONAL

ISTORY OF THE

NITED

TATES

280–88 (1901).

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404 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

After the text of the Articles of the Confederation, the best pri-

mary source for understanding the Articles is the thirty-four-volume

collection of the Journals of the Continental Congress, which is now

available for free online.

Carefully compiled, edited, and published

by the Library of Congress between 1904 and 1937, the Journals con-

tain all of the records—including formerly secret portions of the

records—that the Continental Congress kept from September 5, 1774

until March 2, 1789.

These records reveal substantial information

about the drafting of the Articles, beginning with Benjamin Franklin’s

early draft in July 1775,

and ending with the final version completed

in November 1777.

They also show how and why the state approval

and ratification process dragged from November 1777 to March

1781.

The records further reveal important details about how Con-

gress functioned both before and after ratification, and the call for the

Constitutional Convention and the replacement of the Articles of

Confederation with the new Constitution.

In addition to providing specific details about the Articles of

Confederation, perusing the Journals places the whole subject in con-

text by revealing the extraordinary military, financial, diplomatic, and

political exigencies that the Continental Congress had to address. For

example, on June 12, 1776, the same day that the Continental Con-

gress created a committee to draft the Articles of Confederation, it

approved a resolution that “General Washington be directed to order

the riffles of such men belonging to the riffle regiments as will not re-

inlist, to be purchased.”

On November 15, 1777, the day Congress

approved the text of the Articles of Confederation for submission to

the states, they also dealt with General Washington’s increasingly ur-

gent call “to send, without delay, to the army under his command, the

blankets and other articles of cloathing” that had previously been re-

quested and would be desperately needed during the bitter winter the

Army spent in Valley Forge.

On March 2, 1781, in the first session

following ratification of the Articles, Congress took up the news that

IBR

ONGRESS

, supra note 24. R

Id.

2 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 195–99 (Worthington

Chauncey Ford ed., 1905).

9 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 907–25 (Worthington

Chauncey Ford ed., 1907).

See generally 2 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 38; 9 R

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 39. R

5 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 30, at 432. R

9 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 39, at 906–07. R

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 405

Henry Laurens, who had been the President of the Continental Con-

gress from November 1, 1777 to December 9, 1778, was “taken upon

the high seas, instead of being treated as a Prisoner of War, was sent

to the Tower of London, put into close confinement, and by the tenor

of his commitment is pretended to be considered as a traitorous sub-

ject of the King of Great Britain.”

And on February 20, 1787, the

day before Congress called for the assembly that became the Consti-

tutional Convention, the members were greatly concerned with con-

flicts with Indian tribes.

Congress resolved that

the Secretary at War be, and he is hereby directed to take

order for immediately posting the Troops now in the Western

Country at such places, as most effectually under circum-

stances to protect the Inhabitants, on the Western frontier of

Pennsylvania and Virginia from incursions and depredations

of the Savages.

The classic secondary source for understanding the creation of

the Articles of Confederation, the United States’s experience under

the Articles, and the Articles’ ultimate failure is Francis Newton

Thorpe’s The Constitutional History of the United States (available for

free online).

Another fine work, cited in eight Supreme Court cases,

is Merrill Jensen’s The Articles of Confederation: An Interpretation of

the Social-Constitutional History of the American Revolution,

1774–1781.

Numerous law review articles also helpfully address spe-

cific questions about the relationship of the Articles of Confederation

to the Constitution.

19 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 31, at 227; see R

also U.S. Cong., LAURENS, Henry, 1724–1792, B

IOGRAPHICAL

IRECTORY OF THE

U.S. C

ON-

GRESS

, http://bioguide.congress.gov/scripts/guidedisplay.pl?index=L000121 (last visited Dec. 20,

2016).

32 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 69 (Roscoe R. Hill ed.,

1936).

Id.

See generally 1 T

HORPE

, supra note 35, at 208–88. R

ERRILL

ENSEN

, T

RTICLES OF

ONFEDERATION

: A

NTERPRETATION OF THE

OCIAL

-C

ONSTITUTIONAL

ISTORY OF THE

MERICAN

EVOLUTION

, 1774–1781 (1959).

See, e.g., Eric M. Freedman, Why Constitutional Lawyers and Historians Should Take a

Fresh Look at the Emergence of the Constitution from the Confederation Period: The Case of the

Drafting of the Articles of Confederation, 60 T

ENN

. L. R

. 783, 784 (1993); Vasan Kesavan,

When Did the Articles of Confederation Cease to Be Law?, 78 N

OTRE

AME

L. R

. 35 (2002);

Douglas G. Smith, An Analysis of Two Federal Structures: The Articles of Confederation and the

Constitution, 34 S

IEGO

L. R

. 249, 255–56 (1997).

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406 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

C. Description of the Articles of Confederation

Articles I, II, and III of the Articles of Confederation concerned

the nature of the Confederacy. They announced that it would be

called “The United States of America,”

but emphasized that each

state would retain its own “sovereignty, freedom and independence”

and every power not “expressly delegated” to Congress.

They fur-

ther committed the states to a common defense, “binding themselves

to assist each other, against all force offered to, or attacks made upon

them, or any of them.”

Articles IV, V, VI, VII, and IX addressed domestic and foreign

relations and military matters. They specified that no state could deny

the “privileges and immunities” of citizens of other states and re-

quired the states to allow freedom of movement.

They gave each

state one vote in Congress.

They further specified that only Con-

gress, not the states, could engage in foreign diplomacy, enter treaties,

receive ambassadors, and declare war.

They described how states

would raise military forces and authorized the state legislatures to ap-

point military officers below the rank of colonel.

They also provided

that Congress would resolve disputes among the states.

Articles VIII and XII concerned the finances of the Confedera-

tion. They provided that the United States would pay expenditures

from funds contributed by state legislatures and that states would con-

tribute in proportion to the value of the real property located within

their territories.

These provisions also reaffirmed any debts incurred

before the effective date of the Articles of Confederation.

Article X authorized a committee of the states to make certain

decisions and take certain administrative actions when Congress was

not in session.

Article XI provided for admission of Canada to enter

the confederation.

Article XIII required the states to comply with

the Acts of Congress, declared the union of the states to be perpetual,

RTICLES OF

ONFEDERATION

of 1781, art. I.

Id. art. II.

Id.

Id. art. III.

Id. art. IV, para. 1.

Id. art. V, para. 4.

Id. art. VI.

Id. art. VII.

Id. art. IX, para. 2.

Id. art. VIII.

Id. art. XII.

Id. art. X.

Id. art. XI.

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 407

and specified that any changes to the Articles of Confederation would

require approval of Congress and ratification by all the states.

Notably absent from the Articles of Confederation is any provi-

sion for a separate executive branch of government. Congress, accord-

ingly, had to make executive decisions itself. For example, in perusing

the Journals of the Continental Congress, it is common to see Congress

considering resolutions on topics such as whether “to order the party

of Colonel Bland’s regiment of light dragoons now at Charlotteville,

to proceed to South Carolina forthwith and join the regiment there”

and whether “to send Mr. Carmichael to the Court of Portugal in pur-

suance of the resolution of the 11th day of July, 1781, [provided] he

shall have good grounds to expect that such a measure will attain the

object proposed by the Superintendant of Finance.”

But it would be

an overstatement to say the United States had no “executive” agen-

cies or officials. Because Congress could not carry out all of its deci-

sions without assistance, it created what are now called executive

departments. These included, among other bodies, a Board of Trea-

sury, a Board of War, a Board of Admiralty, and a Department of

Foreign Affairs, all of which compiled records that still exist.

The Articles of Confederation also did not create a general na-

tional court system as the United States has today. But the Articles

did provide for the appointment of specialized courts for “trial of pira-

cies and felonies committed on the high seas” and “cases of cap-

tures.”

It further allowed Congress to create courts to hear cases

between states concerning “boundary, jurisdiction, or any other

causes,” and it designated Congress as “the last resort on appeal” in

all such cases.

The Constitution now gives these roles to the U.S.

Supreme Court.

The Articles of Confederation delegated a number of strong pow-

ers to the Confederation Congress. As under the current Constitution,

Congress had sole power, exclusive of the states, to declare war, send

Id. art. XIII.

15 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 1367 (Worthington

Chauncey Ford ed., 1909).

22 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 250 (Gaillard Hunt ed.,

1914).

Records of the Continental and Confederation Congresses and the Constitutional Con-

vention, N

ATIONAL

RCHIVES

, http://www.archives.gov/research/guide-fed-records/groups/

360.html#360.4 (last updated Aug. 15, 2016) (identifying the existing collections of the records

from these different boards).

RTICLES OF

ONFEDERATION

of 1781, art. IX.

Id.

U.S. C

ONST

. art. III, § 2, cls. 1–2.

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408 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

and receive ambassadors, make treaties, and prohibit exportation and

importation of goods, and grant letters of marque and reprisal.

Con-

gress also could borrow and spend money, a power which it exercised

in great measure.

When the new federal government took over in

1789, the Continental and Confederation Congresses had already

amassed a national debt of more than $70 million.

Congress also had

power to build an Army and Navy,

which it used successfully to de-

feat the United Kingdom, the world’s greatest military power.

But the Confederation Congress lacked two key powers. No pro-

vision gave Congress power to regulate commerce, a power which was

left to the states themselves. Congress also could not directly impose

taxes. Instead, the revenue of the United States was to be “supplied

by the several states, in proportion to the value of all land within each

state.”

And the “taxes for paying that proportion” were to be “levied

by the authority and direction of the legislatures of the several

states.”

The states routinely failed to meet their obligations. Con-

gress had no options other than to “remind the states” of the necessity

of making payments or to excuse the debts.

On April 24, 1784, a

report to Congress lamented: “The requisitions of October 30, 1781,

for eight millions of dollars, and of October 16, 1782, for two millions

of dollars, have been so partially complied with, and in such unequal

proportions, that Congress can retain no hopes of their full

execution.”

The Articles of Confederation contained no Bill of Rights. Dur-

ing the drafting of the Articles, no member proposed one.

Historian

Francis Newton Thorpe suggests the drafters may have thought that

Congress would have such limited powers that it could not take ac-

tions which would violate individual rights.

The Articles of Confederation is considerably shorter than the

Constitution, having only 3400 words as compared to the Constitu-

tion’s 4500 words (excluding the constitutional amendments). But at

See A

RTICLES OF

ONFEDERATION

of 1781, art. IX.

Id.

Our History, U.S. D

’

TOF

REASURY

, https://www.treasurydirect.gov/govt/reports/pd/

histdebt/histdebt_ourheritage.htm (last updated Apr. 29, 2014).

RTICLES OF

ONFEDERATION

of 1781, art. IX.

Id. art. VIII.

Id.

26 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 299 (Gaillard Hunt ed.,

1928).

Id.

See 1 T

HORPE

, supra note 35, at 232. R

See id.

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 409

the same time, the Articles of Confederation are more verbose, in

some respects. The document covers fewer subjects but treats them in

greater detail and, generally, with less eloquence. Article XIII pro-

vided that the Articles could be altered if “such alteration be agreed

to in a congress of the united states, and be afterwards con-firmed by

the legislatures of every state,” but no amendments were ever made.

When Congress called for a convention to consider amendments on

February 21, 1787,

this convention quickly changed course, drafting

and reporting a completely new Constitution to replace the Articles of

Confederation.

D. Drafting the Articles of Confederation

The Journals of the Continental Congress document the drafting

of the Articles of Confederation. As noted above, the Second Conti-

nental Congress began meeting in May of 1775, shortly after the fight-

ing began in Boston.

Although the United States did not declare

independence until more than a year later, Benjamin Franklin very

early on foresaw the direction that the conflict was heading. On his

own initiative, he drew up proposed “Articles of Confederation,”

which he presented on July 21, 1775.

Congress, however, did not act on Franklin’s proposal immedi-

ately. Instead, the impetus for forming a confederation came on June

11, 1776, when James Randolph proposed that the Continental Con-

gress declare its independence from the United Kingdom.

Congress

immediately appointed a committee to draft this declaration consist-

ing of Thomas Jefferson, Samuel Adams, Benjamin Franklin, Roger

Sherman, and Robert Livingston

At this point, Congress realized

that if the colonies did become independent, they would need to work

out some kind of new legal arrangement to keep them aligned with

each other and to establish foreign relations with other nations. Ac-

cordingly, on the same day, Congress resolved “that a committee be

appointed to prepare and digest the form of a confederation to be

entered into between these colonies.”

RTICLES OF

ONFEDERATION

of 1781, art. XIII.

32 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 44, at 73–74. R

See Maggs, A Concise Guide to the Records of the Federal Constitutional Convention,

supra note 11, at 1711. R

See supra note 27 and accompanying text. R

2 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 38, at 195–99. R

5 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 41, at 431. R

Id.

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410 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

The committee to draft the Articles of Confederation was formed

the following day, on June 12, 1776.

The committee was to consist of

one member from each “colony”—a word soon to be replaced with

“state.”

The initial committee included John Dickinson, Samuel Ad-

ams, Roger Sherman, and other luminaries of the era.

The commit-

tee did not include Benjamin Franklin, presumably because he was

busy with the Declaration of Independence. The committee, however,

incorporated many of Franklin’s ideas from the draft he had prepared

the previous year.

On July 12, 1776, the drafting committee presented a draft of the

Articles of Confederation to the Continental Congress.

The manu-

script was handwritten by John Dickinson.

This draft contained

twenty articles and was similar in many ways to the final version of the

Articles discussed above.

The limited nature of the proposed Con-

federation is typified by emphatic statements like “the United States

assembled shall never impose or levy any Taxes or Duties, except in

managing the Post-Office . . . .”

Congress did not immediately discuss the draft of the Articles of

Confederation, but instead ordered copies to be printed for subse-

quent discussion.

Starting on July 22, 1776, and on selected days af-

terward, Congress began meeting as a committee of the whole to

address the Articles.

Because these were not formal sessions, official

records were not kept. But notes taken by John Adams and Thomas

Jefferson describe some of what occurred during these sessions.

Perhaps the two most controversial topics discussed were how the

Confederation would make decisions and how it would raise money

from the states. Congress ultimately decided that each state would

have one vote and that each state would contribute money according

to the total value of the property located in the state.

According to

See id. at 433.

Id.

Id. at 545, 546 & n.1; 2 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra

note 38, at 195–99 (Franklin’s “Articles of Confederation”). R

5 J

OURNALS OF THE

ONTINENTAL

ONGRESS

, supra note 41, at 546. R

Id. at 546–54 (reprinting the draft).

Id.

Id. at 552 (portion of the proposed article XVIII).

Id. at 555.

Id. at 600.

6 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 1069–83 (Worthington

Chauncey Ford ed., 1906) (notes of John Adams); id. at 1085–1106 (notes of Thomas Jefferson).

9 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 39, at 910, 913–14. R

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 411

notes taken by John Adams, on July 30, 1776, Franklin presciently ar-

gued that this formula was a recipe for failure: “Let the smaller Colo-

nies give equal money and men, and then have an equal vote. But if

they have an equal vote without bearing equal burthens, a confedera-

tion upon such iniquitous principles will never last long.”

Franklin

proposed that the Articles of Confederation should provide for the

states to vote “in proportion to numbers,” but this proposal failed.

100

In discussions of that suggested alternative, one difficulty that arose

was how to count slaves.

101

Benjamin Harrison V, a delegate from Vir-

ginia and the father of President William Henry Harrison and great-

grandfather of President Benjamin Harrison, “proposed a compro-

mise, that two slaves should be counted as one freeman”—presaging

the similar three-fifths compromise that later marred the Constitu-

tion.

102

But Congress did not change the rule that each state would

have one vote.

103

E. Approval and Ratification

Despite the importance of formally uniting the states, Congress

was extremely busy with the conduct of the Revolutionary War and

could not devote its full attention to the proposed draft of the Articles

of Confederation.

104

Debates and discussions on the subject took place

from time to time until Congress ultimately approved the final version

of the Articles on November 15, 1777.

105

Because the Articles of Con-

federation were like a multilateral treaty, before they could go into

effect, each of the thirteen state legislatures had vote to approve them

and then formally ratify them.

106

Congress sent a copy of the Articles to each state together with a

letter urging their approval.

107

The drafters knew that the Articles

were not perfect, but they stressed that they were about the best that

the states could hope for under the circumstances.

108

Congress ex-

plained that “progress [had] been attended with uncommon embar-

Id. at 1079.

100

Id. at 1081.

101

Id. at 1099–1100.

102

Id. at 1100 (notes of Thomas Jefferson); see also U.S. Cong., HARRISON, Benjamin,

(1726–1791), B

IOGRAPHICAL

IRECTORY OF THE

U.S. C

ONGRESS

, http://bioguide.congress.gov/

scripts/biodisplay.pl?index=H000262 (last visited Dec. 26, 2016).

103

9 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 39, at 910. R

104

See Freedman, supra note 48, at 799–800. R

105

9 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 39, at 906–07. R

106

See id. at 925.

107

Id. at 932–34.

108

See id. at 933.

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412 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

rassments and delay.”

109

In its letter, Congress cited the difficulty of

having to prepare provisions “accommodated to the opinion and

wishes of the delegates of so many states, differing in habits, produce,

commerce, and internal police.”

110

Congress also stressed to the states

that forming a union would “confound our foreign enemies, defeat the

flagitious practices of the disaffected, strengthen and confirm our

friends, support our public credit, restore the value of our money, en-

able us to maintain our fleets and armies, and add weight and respect

to our councils at home, and to our treaties abroad.”

111

Table 1 details

the timeline of when the legislatures of each state approved and rati-

fied the Articles of Confederation.

ABLE

1. A

PPROVAL AND

ATIFICATION OF THE

RTICLES OF

ONFEDERATION

State Legislature Approved Ratified

Virginia December 16, 1777 July 9, 1778

South Carolina February 5, 1778 July 9, 1778

New York February 6, 1778 July 9, 1778

Rhode Island February 9, 1778 July 9, 1778

Connecticut February 12, 1778 July 9, 1778

New Hampshire March 4, 1778 July 9, 1778

Pennsylvania March 5, 1778 July 9, 1778

Massachusetts March 10, 1778 July 9, 1778

North Carolina April 5, 1778 July 21, 1778

Georgia February 26, 1778 July 24, 1778

New Jersey November 19, 1778 November 26, 1778

Delaware February 1, 1779 February 1, 1779

Maryland February 2, 1781 March 1, 1781

Nine state legislatures—all except New Jersey, Delaware, and

Maryland—took heed of Congress’s urging and quickly considered,

approved, and authorized their delegates to ratify the Articles of

Confederation.

112

Ratification took place in Congress, with delegates

from these states signing a parchment on which the Articles were

engrossed.

113

Delegates from New Hampshire, Massachusetts, Rhode

Island, Connecticut, New York, Pennsylvania, Virginia, and South

109

Id.

110

Id.

111

Id. at 933–34.

112

11 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 677 (Worthington

Chauncey Ford ed., 1908).

113

See id.

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 413

Carolina signed the document on July 9, 1778.

114

The delegates from

North Carolina and Georgia were absent that day but signed on July

21 and July 24 respectively.

115

This left only New Jersey, Delaware, and Maryland. Their

delegates informed Congress that their state legislatures had not

approved the Articles of Confederation because they were concerned

about claims that several of the other states were making to land to

the west.

116

In particular, New York, Virginia, Massachusetts,

Connecticut, North Carolina, South Carolina, and Georgia all asserted

far-reaching boundaries based on their original charters.

117

The other

states did not have such claims and were concerned that they might

later be dwarfed in size.

118

Despite these concerns, New Jersey approved the Articles of

Confederation on November 26, 1778,

119

and Delaware approved

them on May 5, 1779.

120

This left Maryland as the sole holdout, and it

did not approve the Articles of Confederation until February 2,

1781.

121

Although the other states’ territorial claims were not fully

resolved by that time, steps toward compromise occurred. The New

York legislature passed a law on February 19, 1780, agreeing to settle

the western boundary and cede the western lands to the United

States.

122

Similarly, Connecticut conditionally offered to relinquish its

claims to western lands on October 10, 1780.

123

And when Maryland

ultimately did give approval, it expressly asserted a claim to a

proportionate share of the “back country.”

124

Those who worked on the drafting and ratification of the Articles

of Confederation undoubtedly learned important lessons in nation-

building. Benjamin Franklin and five of the men who signed the

114

See id.

115

Id. at 677, 709, 716.

116

See id. at 677; see also 1 T

HORPE

, supra note 35, at 229; Peter A. Appel, The Power of R

Congress “Without Limitation”: The Property Clause and Federal Regulation of Private Property,

86 M

INN

. L. R

. 1, 16–17 (2001).

117

See 1 T

HORPE

, supra note 35, at 229–30, 230 n.1 (summarizing these claims and what R

ultimately happened with respect to them).

118

See id.

119

12 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 1164 (Worthington

Chauncey Ford ed., 1908).

120

14 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, at 548 (Worthington

Chauncey Ford, ed., 1909).

121

19 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 31, at 213–14. R

122

3 J

OHN

ACH

ASTER

, A H

ISTORY OF THE

EOPLE OF THE

NITED

TATES

, F

ROM

THE

EVOLUTION TO THE

IVIL

95 (1921).

123

12 R

EGISTER OF

EBATES IN

ONGRESS

1334 (1836).

124

19 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 31, at 139. R

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414 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

Articles of Confederation on behalf of the ratifying states later

participated in the Constitutional Convention: Daniel Carroll

(Maryland), John Dickinson (Delaware), Gouverneur Morris (New

York), Robert Morris (Pennsylvania), and Roger Sherman

(Connecticut).

125

F. Successes and Shortcomings

The ratification of the Articles of Confederation in March 1781

did not dramatically alter the conduct of Congress. Congress had not

been waiting patiently for a formal union to get started with the busi-

ness of governing. On the contrary, it had been actively directing the

conduct of the war since 1775.

126

It declared independence on behalf

of the colonies in a united manner.

127

It requested that state legisla-

tures take measures such as imposing embargoes on the export of

needed commodities.

128

It not only raised an army but also enacted

the Articles of War to govern the army.

129

It entered into diplomatic

relations with foreign nations and attempted to negotiate peace.

130

borrowed money and issued bills of credit.

131

In short, it did many of

the functions of a government formed under a proper constitution.

Although the Articles of Confederation were not perfect, they

were sufficient to allow Congress to achieve many admirable accom-

plishments. Under the Articles of Confederation, Congress led a suc-

cessful war effort under extremely difficult circumstances. The

Articles kept the thirteen colonies together in times of great stress

even though they often had very differing interests. The Articles al-

lowed Congress to make foreign allies who provided loans and mili-

tary assistance.

132

The Articles also established a nation that secured

recognition and a very favorable settlement from the United Kingdom

in the Treaty of Paris in 1783.

133

And in the Northwest Ordinance

passed under the Articles of Confederation, Congress came up with a

plan to organize the disputed western lands, to provide for the even-

125

12 J

OHN

ISKE

, T

ISTORICAL

RITINGS OF

OHN

ISKE

430–32 (1902).

126

See supra notes 41–44 and accompanying text. R

127

See T

ECLARATION OF

NDEPENDENCE

pmbl. (U.S. 1776).

128

See, e.g., 11 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 112, at R

569 (resolution recommending to the several states that they embargo wheat, rice, rye, Indian

corn, flour, bread, beef, pork, and other commodities).

129

5 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 41, at 788–807. R

130

See id. at 490.

131

See id. at 551.

132

RTICLES OF

ONFEDERATION

of 1781, art. VI.

133

See generally 1 H

OWARD

W. P

RESTON

OCUMENTS

LLUSTRATIVE OF

MERICAN

IS-

TORY

1606–1863 (1886).

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 415

tual admission of new states into the Union, and to address some of

the divisive issues presented by slavery.

134

Yet, despite these successes, Congress struggled constantly with

the inherent weakness and other flaws of the Confederation. Perhaps

the best source for understanding the problems of the Articles of Con-

federation as they were perceived in the late 1780s is the Federalist

Papers, a collection of eighty-seven essays written by Alexander Ham-

ilton, James Madison, and John Jay in 1787 and 1788 to convince the

people of New York to support ratification of the U.S. Constitution.

135

Federalists Nos. 15 to 22 specifically addressed perceived “insufficien-

cies” and “other defects” in the Articles of Confederation.

136

Finances were a great issue. Fighting a war and recovering from

its aftermath cost a fortune.

137

Scarcely a page of the Journals does not

include discussion of the need to approve some great expense.

138

noted above, the states did not meet their obligations to provide for

the common treasury.

139

While Congress could make promises to pay

in the future with bills of credit, these soon lost their currency as it

appeared that Congress could never pay off its war debts.

140

Federalist

No. 15 captured the problem: “Do we owe debts to foreigners and to

our own citizens contracted in a time of imminent peril for the preser-

vation of our political existence? These remain without any proper or

satisfactory provision for their discharge.”

141

Foreign policy was also a difficulty. Although the Articles of Con-

federation in theory left diplomatic matters to Congress, the states en-

gaged in their own international negotiations. They also refused to

adhere to the terms of treaties. Federalist No. 22 lamented:

No nation acquainted with the nature of our political associa-

tion would be unwise enough to enter into stipulations with

the United States, conceding on their part privileges of im-

portance, while they were apprised that the engagements on

134

See generally 1 L

AUREL

ENDT

LLINOIS

EGAL

ESEARCH

UIDE

(2d ed. 2006).

135

See generally T

EDERALIST

. 15–17, 21–22 (Alexander Hamilton), N

. 18–20

(Alexander Hamilton and James Madison). For the purposes of this Article, the Federalist Pa-

pers are those edited by Clinton Rossiter.

136

EDERALIST

. 15–17, 21–22 (Alexander Hamilton), N

. 18–20 (Alexander

Hamilton and James Madison) (Clinton Rossiter ed., 1961). The quoted words appear in the

titles of these essays.

137

15 J

OURNALS OF THE

ONTINENTAL

ONGRESS

, supra note 63, at 1053. R

138

See generally 1 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 25. R

139

Supra notes 74–76 and accompanying text. R

140

See 15 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 63, at R

1053–54.

141

EDERALIST

. 15, at 101 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

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416 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

the part of the Union might at any moment be violated by its

members . . . .

142

Militarily, despite the victory over the United Kingdom, the

United States soon became weak. Though short-lived, Shay’s Rebel-

lion showed how emboldened disaffected citizens were and how

weakly the United States military could respond.

143

Federalist No. 19

said: “The small body of national troops, which has been judged nec-

essary in time of peace, is defectively kept up, badly paid, infected

with local prejudices, and supported by irregular and disproportionate

contributions to the treasury.”

144

Even worse, the gains of the War

were being lost. The states were not complying with the Treaty of

Paris, which required them to repay pre-Revolutionary War debts.

This failure, in the view of the United Kingdom, justified keeping

British forts in the Great Lakes region despite contrary provisions in

the treaty. “Have we valuable territories and important posts in the

possession of a foreign power which, by express stipulations, ought

long since to have been surrendered?” asked Federalist No. 15.

145

Another key problem was that Congress had very little legisla-

tive, executive, and judicial power. It had little authority to pass laws

and almost no authority to enforce them. Federalist No. 16 remarked:

“[I]f any State should be disaffected to the authority of the Union it

could at any time obstruct the execution of its laws . . .”; the national

government must “stand in need of no intermediate legislations; but

must itself be empowered to employ the arm of the ordinary magis-

trate to execute its own resolutions.”

146

This essay later repeated the

same theme:

The next most palpable defect of the existing Confederation

is the total want of a SANCTION to its laws. The United

States, as now composed, have no power to exact obedience,

or punish disobedience to their resolutions, either by pecuni-

ary mulcts, by a suspension or divestiture of privileges, or by

any other constitutional means.

147

Under the Articles of Confederation, the economy also suffered

from state hindrances of commerce. Federalist No. 42 made an affirm-

142

EDERALIST

. 22, at 139–40 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

143

Rahul Tilva, Shays’ Rebellion

OUNT

ERNON

ADIES

’ A

SSOC

., http://

www.mountvernon.org/digital-encyclopedia/article/shays-rebellion/ (last visited Dec. 26, 2016).

144

EDERALIST

. 19, at 127 (Alexander Hamilton and James Madison) (Clinton

Rossiter ed., 1961).

145

EDERALIST

. 15, supra note 141, at 101 (Alexander Hamilton). R

146

EDERALIST

. 16, at 111–12 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

147

EDERALIST

. 21, at 134 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 417

ative case for giving Congress the power to regulate interstate com-

merce. It decried the “defect of power in the existing Confederacy to

regulate the commerce between its several members” and emphasized

the need for “the relief of the States which import and export through

other States from the improper contributions levied on them by the

latter.”

148

G. Replacement by the Constitution

Perhaps the greatest achievement of Congress under the Articles

of Confederation was its recognition that problems existed and its

willingness to promote and accept reform. On February 21, 1787, Con-

gress approved the calling of a convention to discuss and propose

amendments to the Articles of Confederation.

149

The Convention

quickly got away from this initial goal. Instead of just drafting amend-

ments to the Articles of Confederation, the assembly proposed a new

Constitution.

150

The Convention decided that the Constitution would

go into effect if conventions in nine states ratified it.

151

In this way,

they bypassed the Confederation Congress and did not allow the state

legislatures to vote on the Constitution.

The Convention also sidestepped the requirement that any

amendments to the Articles of Confederation had to be approved by

all of the states.

152

While this step has provoked considerable aca-

demic discussion, it was largely overlooked as a serious issue. James

Madison dismissed any concern in Federalist No. 40, saying this about

critics who might insist on a unanimous ratification: “Let them de-

clare, whether it was of most importance to the happiness of the peo-

ple of America, that the Articles of Confederation should be

disregarded, and an adequate government be provided, and the Union

preserved; or that an adequate government should be omitted, and

the Articles of Confederation preserved.”

153

Madison and the other

Framers must have remembered the delay and hardship caused by re-

quiring all of the states to ratify the Articles of Confederation.

In the fall of 1787 and spring of 1788, the states held ratification

conventions.

154

One by one, states began approving the new Constitu-

tion. New Hampshire was the ninth state, followed closely by New

148

EDERALIST

. 42, at 267 (James Madison) (Clinton Rossiter ed., 1961).

149

32 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 44, at 71–74. R

150

See id.

151

34 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 34, at VII. R

152

See A

RTICLES OF

ONFEDERATION

of 1781, art. XIII.

153

EDERALIST

. 40, at 249 (James Madison) (Clinton Rossiter ed., 1961).

154

See Kesavan, supra note 48, at 36. R

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418 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

York and Virginia.

155

In July 1788, although North Carolina and

Rhode Island had not yet ratified, Congress acknowledged that a suf-

ficient number of states had approved the Constitution.

156

Congress

then created a committee to report an “Act to Congress for putting

the said constitution into operation.”

157

On September 13, 1788, the

Congress voted to implement the new Constitution, to establish New

York as the capital, and to set March 4, 1789, as the day that the new

government would start and the Confederation would end.

158

II. D

EFINITIONS OF

RIGINAL

EANING

Judges, scholars, lawyers, and others often seek to discover the

original meaning of the Constitution. This task is not always straight-

forward. The Constitution is now over 225 years old. During this time,

some words have changed their meaning, background principles that

once may have been generally known have now become obscure, and

the intents and purposes of those who drafted the document may have

been forgotten.

In addition, an important complication is that there is more than

one definition of the term “original meaning.” The term might refer to

(1) the original intent of the Framers who drafted the Constitution at

the Constitutional Convention; (2) the original understanding of the

participants in the state ratification debates as to what they were ap-

proving; or (3) the original, objective (or public meaning) of the words

and phrases in the Constitution without reference to any individual’s

or group’s subjective intent or understanding. Other works have ex-

plored these different definitions at length, providing examples of how

they might differ, identifying important figures who have favored one

type of meaning over another, and so forth.

159

This Article takes no

position on the merits of one definition over another or whether one

type of meaning should carry more weight in constitutional interpreta-

tion. Instead, the emphasis here is on clarity: distinguishing the differ-

ent types of original meaning which the Articles of Confederation

might help to establish.

When writers compare the text of the Constitution to the text of

the Articles of Confederation, they are usually making arguments

155

Id. at 36 n.9.

156

34 J

OURNALS OF THE

ONTINENTAL

ONGRESS

1774–1789, supra note 34, at 304. R

157

Id. at 281.

158

Id. at 515.

159

See, e.g., Gregory E. Maggs, Which Original Meaning of the Constitution Matters to Jus-

tice Thomas?, 4 N.Y.U. J.L. & L

IBERTY

494, 495 (2009).

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about the original, objective meaning of the Constitution.

160

The same

is usually true when they compare the structure of the government set

up by the Constitution to the structure of the government set up by

the Articles of Confederation.

161

This type of original meaning is ob-

jective because it looks for reasonable inferences that might be drawn

from the comparison, rather than what Madison, Hamilton, or anyone

else subjectively intended the Constitution to mean or understood the

Constitution to mean.

162

In contrast, when writers make arguments about how the Consti-

tution was designed to address perceived problems with the Articles

of Confederation, they more typically are addressing the original in-

tent or the original understanding.

163

The inquiry is not objective be-

cause it requires consideration of extrinsic facts about the Articles’

perceived defects and the intended improvements found in the Consti-

tution. As explained more fully below, these arguments do rely on the

Articles of Confederation, but they also might rely on other sources,

such as remarks at the Constitutional Convention, statements in the

Federalist Papers, and so forth. The goal in discerning the original in-

tent or original understanding is to get at what the Framers or ratifiers

subjectively thought they were accomplishing.

164

More details relating to these matters appear in the Part that fol-

lows.

165

What is most important going forward is only that the readers

recognize that more than one possible “original” meaning may exist

166

and to think critically about how different kinds of arguments might

be addressing different kinds of original meaning.

167

160

See infra Section III.A.

161

See infra Section III.B.

162

See Maggs, A Concise Guide to Using Dictionaries from the Founding Era, supra note

11, at 363–64 (describing differences between subjective original meaning and objective original R

meaning).

163

See infra Section III.A.

164

See Maggs, A Concise Guide to Using Dictionaries from the Founding Era, supra note

11, at 362–63 (describing original intent as an inquiry into the subjective goals of the Framers). R

165

See infra Part III.

166

See Maggs, A Concise Guide to Using Dictionaries from the Founding Era, supra note

11, at 362 (describing three different types of original meaning); see infra C

ONCLUSION

. R

167

Compare infra Section III.A (discussing claims about original meaning based on com-

paring the text of the Constitution and Articles of Confederation), and Section III.B (discussing

claims about original meaning based on comparing the governmental structure established by

the Constitution and the Articles of Confederation), with Section III.C (discussing claims about

original meaning based on extrinsic evidence relating to the goals of the Framers when replacing

the Articles of Confederation with the Constitution), and Section III.D (discussing claims about

original meaning based on the theory that the Articles of Confederation supplement, rather than

replace, the Constitution).

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420 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

III. F

OUR

AYS OF

SING THE

RTICLES OF

ONFEDERATION TO

AKE

LAIMS

BOUT THE

RIGINAL

EANING OF THE

ONSTITUTION

Claims about the original meaning of the Constitution that rely

on the Articles of Confederation tend to fall into four categories. The

following discussion identifies these categories, provides multiple il-

lustrations from Supreme Court decisions, and then considers some of

the rhetorical strengths and weaknesses of each type of claim.

A. Claims Based on a Comparison of the Text of the Constitution

to the Text Used in the Articles of Confederation

Many claims about the original meaning of the Constitution rely

on a comparison of the text of the Constitution to the text of the Arti-

cles of Confederation. If the texts are exactly the same or nearly iden-

tical, this may suggest that the Constitution simply continued the work

of the Articles of Confederation. For example, as the Supreme Court

observed in Baker v. General Motors Corp.,

168

the first sentence of the

Full Faith and Credit Clause is almost the same as an antecedent pro-

vision in the Articles of Confederation.

169

The Constitution says: “Full

Faith and Credit shall be given in each State to the public Acts,

Records, and judicial Proceedings of every other State.”

170

Using very

similar language, the Articles of Confederation formerly said: “Full

faith and credit shall be given in each of these states to the records,

acts and judicial proceedings of the courts and magistrates of every

other state.”

171

The evident conclusion is that the Constitution did not

change the law on this point; as the Supreme Court put it, the two

provisions are of “the same order.”

172

This line of reasoning is not very controversial, but it is also not

necessarily very helpful. Knowing that a provision in the Constitution

has the same meaning as an antecedent provision in the Articles of

Confederation does not facilitate interpretation of the constitutional

provision absent evidence of what the earlier provision meant. Such

evidence about the meaning of the Articles of Confederation simply

may be scarce. Still, some researchers have managed to find useful

information in historical records. For example, Professor David Eng-

dahl has uncovered cases from the 1780s interpreting the Full Faith

168

522 U.S. 222 (1998).

169

See id. at 231, 231 n.3.

170

U.S. C

ONST

. art. IV, § 1.

171

RTICLES OF

ONFEDERATION

of 1781, art. IV, para. 3.

172

Baker, 522 U.S. at 231 n.3.

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and Credit Clause in the Articles of Confederation that yield clues

about the meaning of the corresponding clause in the Constitution.

173

This approach may prove fruitful with respect to other provisions if

similar evidence can be discovered.

When the text of the Constitution differs from an antecedent pro-

vision in the Articles of Confederation, sometimes the change indi-

cates something about the meaning of the Constitution. As described

in some detail above,

174

a famous example appears in McCulloch v.

Maryland.

175

Chief Justice Marshall in that case concluded that Con-

gress has implied legislative powers based in part on a comparison of

the Tenth Amendment to Article II of the Articles of Confedera-

tion.

176

He observed that the Tenth Amendment limits Congress to

those powers “delegated by the Constitution,”

177

while Article II re-

stricted the Confederation Congress to the powers “expressly dele-

gated.”

178

Chief Justice Marshall reasoned that omission of the word

“expressly” from the Tenth Amendment indicated that the Framers

intended the Constitution to give implied power to Congress.

179

But a difference in language does not necessarily imply that the

Constitution has a different meaning from the Articles of Confedera-

tion. Instead, the variation in wording might simply reflect an alterna-

tive manner of drafting. As mentioned previously,

180

the Constitution

addresses more subjects than the Articles of Confederation, but in

general tends to treat them in a less verbose manner. One example

concerns the Privileges and Immunities of citizens. The Constitution

simply says: “The Citizens of each State shall be entitled to all Privi-

leges and Immunities of Citizens in the several States.”

181

The antece-

dent of this clause appears in Article IV of the Articles of

Confederation,

182

and it is much longer and more detailed:

The better to secure and perpetuate mutual friendship and

intercourse among the people of the different states in this

union, the free inhabitants of each of these states, paupers,

vagabonds and fugitives from Justice excepted, shall be enti-

173

See David E. Engdahl, The Classic Rule of Faith and Credit, 118 Y

ALE

L.J. 1584,

1614–19 (2009).

174

See supra notes 2–6 and accompanying text. R

175

17 U.S. (4 Wheat.) 316 (1819).

176

See id. at 384 (citing U.S. C

ONST

. amend. X).

177

See id. at 406 (citing A

RTICLES OF

ONFEDERATION

of 1781, art. II).

178

Id.

179

Id. at 406–07.

180

See supra Section I.C.

181

U.S. C

ONST

. art. IV, § 2, cl. 1.

182

RTICLES OF

ONFEDERATION

of 1781, art. IV.

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422 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

tled to all privileges and immunities of free citizens in the

several states; and the people of each state shall have free

ingress and regress to and from any other state, and shall

enjoy therein all the privileges of trade and commerce, sub-

ject to the same duties, impositions and restrictions as the

inhabitants thereof respectively, provided that such restric-

tions shall not extend so far as to prevent the removal of

property imported into any state, to any other State of which

the Owner is an inhabitant; provided also that no imposition,

duties or restriction shall be laid by any state, on the prop-

erty of the united states, or either of them.

183

Comparing these two clauses reveals a number of omissions. For

instance, the Privileges and Immunities Clause does not expressly

mention a right to “free ingress and regress to and from any other

state,” as did the Articles of Confederation. Does this omission mean

that the drafters intended to eliminate the right to travel across state

lines as one of the privileges protected by the Clause? In Zobel v.

Williams,

184

the Supreme Court concluded that it did not, explaining:

While the Framers of our Constitution omitted the reference

to “free ingress and regress,” they retained the general guar-

anty of “privileges and immunities.” Charles Pinckney, who

drafted the current version of Art. IV, told the Convention

that this Article was “formed exactly upon the principles of

the 4th article of the present Confederation.” Commenta-

tors, therefore, have assumed that the Framers omitted the

express guaranty merely because it was redundant, not be-

cause they wished to excise the right from the

Constitution.

185

These two examples from McCulloch v. Maryland and Zobel v.

Williams reveal a simply stated difficulty: a divergence between the

text of the Constitution and the text of the Articles of Confederation

sometimes indicates a difference in meaning and sometimes does not.

Unfortunately, no simple formula exists for telling the two situations

apart. As a result, in each instance of a difference in wording, re-

searchers must examine the evidence in a lawyerly manner, draw a

logical conclusion about what it shows, and then explain the reasoning

in much the same way that the Supreme Court did in these two cases.

In some instances, a provision in the Constitution has no clear

antecedent in the Articles of Confederation. In this situation, courts

183

Id. art. IV, para. 1.

184

457 U.S. 55 (1982).

185

Id. at 79–80 (citation omitted).

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generally conclude that the constitutional provision creates a new

power or new limitation that did not exist under the Articles of Con-

federation. For example, in Central Virginia Community College v.

Katz,

186

the Supreme Court observed that while the Constitution con-

tains a clause empowering Congress to pass uniform laws on the sub-

ject of bankruptcy, no such clause existed under the Articles of

Confederation.

187

The Court concluded that the constitutional clause

must have conferred a power to address problems that had arisen in

cases before the Constitution’s ratification.

188

In other instances, the situation is reversed: A provision in the

Articles of Confederation has no analogue in the Constitution. For

example, a clause in Article IX of the Articles of Confederation, ex-

pressly gave Congress the power to regulate Indian affairs, saying:

The united states, in congress assembled, shall also have the

sole and exclusive right and power of . . . regulating the trade

and managing all affairs with the Indians, not members of

any of the states; provided that the legislative right of any

state, within its own limits, be not infringed or

violated . . . .

189

In contrast, although the Constitution empowers Congress to regulate

“commerce . . . among . . . the Indian Tribes,”

190

the Constitution con-

tains no provision allowing Congress to regulate Indian “affairs” more

generally. In his concurring opinion in Adoptive Couple v. Baby

Girl,

191

Justice Thomas observed that at the Constitutional Conven-

tion, James Madison had proposed giving Congress the power to regu-

late “Indian affairs” but the Convention did not adopt this proposal.

192

He accordingly concluded:

It is, thus, clear that the Framers of the Constitution were

alert to the difference between the power to regulate trade

with the Indians and the power to regulate all Indian affairs.

By limiting Congress’ power to the former, the Framers de-

clined to grant Congress the same broad powers over Indian

affairs conferred by the Articles of Confederation.

193

186

546 U.S. 356 (2006).

187

Id. at 368.

188

See id. at 369.

189

RTICLES OF

ONFEDERATION

of 1781, art. IX, para. 4 (emphasis added).

190

U.S. C

ONST

. art. I, § 8, cl. 3.

191

133 S. Ct. 2552 (2013).

192

See id. at 2569 (Thomas, J., concurring).

193

Id. (citing Saikrishna Prakash, Against Tribal Fungibility, 89 C

ORNELL

L. R

. 1069,

1090 (2004)).

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424 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

As the foregoing discussion suggests, efforts to compare the text

of the Constitution to the text of the Articles of Confederation gener-

ally seek to establish the original, objective meaning of the Constitu-

tion. They rely on logical inferences from the language used in each

document more than on extrinsic evidence about the intentions of the

Framers or the understanding of the participants at the state ratifying

convention. Accordingly, they may complement other sources of evi-

dence about the original, objective meaning, such as dictionaries from

the Founding Era.

194

B. Claims Based on a Comparison of the Structure of Government

Set Up by the Constitution to the Structure of the Government

Established by the Articles of Confederation

Structural constitutional arguments seek to determine the an-

swers to specific constitutional questions by looking at the organiza-

tion of the government set up by the Constitution. A well-known

example appears in Marbury v. Madison.

195

Chief Justice Marshall ob-

served that the Constitution creates a legislature with defined and lim-

ited powers.

196

He then asked rhetorically, “[t]o what purpose are

powers limited, and to what purpose is that limitation committed to

writing, if these limits may, at any time, be passed by those intended

to be restrained?”

197

He reasoned that the limited powers would not

make sense if Congress could transcend the limits without conse-

quence.

198

This structural reasoning supported Chief Justice Marshall’s

conclusion that the acts of Congress that are “repugnant to the consti-

tution” cannot become law.

199

The Articles of Confederation may contribute to structural con-

stitutional arguments. Sometimes comparing the structure of the gov-

ernment under the Constitution to the structure of the government

under the Articles of Confederation helps with reasoning about par-

194

The original, objective meaning may be consistent with original intent of the Framers

and the original understanding of the ratifiers, and sometimes the courts look at more than one

type of meaning. For example, in Adoptive Couple v. Baby Girl, Justice Thomas bolstered his

conclusions about Congress’s power with respect to Indian affairs by looking at James Madison’s

proposed amendment at the Constitutional Convention. 133 S. Ct. at 2569. And based on infer-

ences drawn from the text in McCulloch v. Maryland, Chief Justice Marshall drew an inference

about what “the men who drew and adopted” the Tenth Amendment “probably” intended to

accomplish. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406–07 (1819).

195

5 U.S. (1 Cranch) 137, 176 (1803).

196

See id. at 176.

197

Id.

198

See id. at 176–77.

199

Id. at 177.

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ticular issues. Two examples of this kind of claim about the original

meaning appear in Justice Stevens’s separate opinions in New York v.

United States

200

and Printz v. United States.

201

Both cases concerned

intergovernmental immunity. In New York v. United States, the Court

held that the federal government could not require a state to take

legislative action.

202

In Printz, the Court held that the federal govern-

ment could not require state officials to implement federal legisla-

tion.

203

Justice Stevens disagreed with these conclusions. In New York

v. United States, Justice Stevens advanced this structural argument:

Under the Articles of Confederation, the Federal Govern-

ment had the power to issue commands to the States. Be-

cause that indirect exercise of federal power proved

ineffective, the Framers of the Constitution empowered the

Federal Government to exercise legislative authority directly

over individuals within the States, even though that direct

authority constituted a greater intrusion on state sovereignty.

Nothing in that history suggests that the Federal Govern-

ment may not also impose its will upon the several States as

it did under the Articles. The Constitution enhanced, rather

than diminished, the power of the Federal Government.

204

In other words, a comparison of the structure of the government

under the Articles of Confederation to the government under the

Constitution showed that a change had occurred but that the change

did not take away a power that formerly had belonged to the govern-

ment.

205

Justice Stevens used similar reasoning in Printz:

Under the Articles of Confederation the National Govern-

ment had the power to issue commands to the several sover-

eign States, but it had no authority to govern individuals

directly. Thus, it raised an army and financed its operations

by issuing requisitions to the constituent members of the

Confederacy, rather than by creating federal agencies to

draft soldiers or to impose taxes. That method of governing

proved to be unacceptable, not because it demeaned the sov-

ereign character of the several States, but rather because it

was cumbersome and inefficient.

206

200

505 U.S. 144, 210 (1992) (Stevens, J., concurring in part and dissenting in part).

201

521 U.S. 898, 939 (1997) (Stevens, J., dissenting).

202

New York v. United States, 505 U.S. at 178–79.

203

Printz, 521 U.S. at 936.

204

New York v. United States, 505 U.S. at 210 (Stevens, J., concurring in part and dissenting

in part) (citation omitted).

205

See id.

206

Printz, 521 U.S. at 945 (Stevens, J., dissenting).

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426 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

Again, Justice Stevens was making a structural constitutional argu-

ment, using the Articles of Confederation to help determine the struc-

ture of the Constitution, which in turn he used to address the specific

issue before the Court.

Attempting to determine the original meaning of the Constitu-

tion by comparing the structure of the government under the Consti-

tution to the structure of the government under the Articles of

Confederation is sometimes difficult because the relevant history may

not be clear. An example of this problem appears in Seminole Tribe of

Florida v. Florida.

207

In that case, the Seminole tribe sued the State of

Florida in federal court, claiming that Florida had not complied with

its obligations under a federal statute regulating gambling.

208

The Su-

preme Court had to determine whether the Indian Commerce Clause

gave Congress power to abrogate the state’s Eleventh Amendment

immunity.

209

The Solicitor General’s brief in the case advanced a

structural argument about state sovereignty that relied in part on a

comparison of the Constitution to the Articles of Confederation.

210

But the Court eschewed this approach in deciding the case, presuma-

bly because of its difficulty. The Court chose not to “calculate exactly

how close the American States came to sovereignty in the classic sense

prior to ratification of the Constitution,”

211

and ruled on other

grounds.

Comparing constitutional structures is often more complicated

than comparing the texts. In New York v. United States, Justice Ste-

vens appears to have been relying on the common logical inference

that “the greater includes the lesser.” Because Congress generally has

more power under the Constitution than it had under the Articles of

Confederation, he concluded that it must have whatever powers the

Confederation Congress had.

212

This reasoning may hold true in some

instances, but it is subject to counter examples. As Justice Thomas’s

opinion in Seminole Tribe indicates, the Confederation Congress may

have had some powers—like regulating Indian affairs—that Congress

currently does not have. Put simply, while the Constitution generally

expanded Congress’s powers, it also contracted a few of them. The

207

517 U.S. 44 (1996).

208

See id. at 51–52.

209

See id. at 47.

210

See Brief for the United States as Amicus Curiae Supporting Petitioner at 22–24, Semi-

nole Tribe of Fla. v. Florida, 517 U.S. 44 (1995) (No. 94-12).

211

Seminole Tribe of Fla., 517 U.S. at 150.

212

See New York v. United States, 505 U.S. 144, 210 (1992) (Stevens, J., dissenting).

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greater powers Congress now enjoys, therefore, do not always include

the lesser powers that the Confederation Congress previously had.

Structural comparisons, like textual comparisons, generally sup-

port claims about the original, objective meaning of the Constitution.

They do not focus on the subjective intentions of the Framers or un-

derstandings of those who ratified the Constitution, but instead on

logical reasoning.

C. Claims Based on Extrinsic Evidence of the Framers’ Goals in

Replacing the Articles of Confederation with the Constitution

In some instances, in attempting to discern the original meaning

of the Constitution, the Supreme Court has focused not just on the

text and structure of the Articles of Confederation, but also on criti-

cism of the Articles of Confederation during the Founding period.

213

The Supreme Court has reasoned that the Framers of the Constitution

intended to correct these deficiencies and that those who ratified the

Constitution understood that it would accomplish this goal.

214

Most

frequently, the Court has relied on the Federalist Papers to discern the

Framers’ concerns about the Articles of Confederation, although

other sources also might serve this function equally well.

215

The clearest cases of this type of reasoning about the original

meaning of the Constitution concern the Commerce Clause, which

empowers Congress to “regulate Commerce . . . among the several

States.”

216

This provision has no antecedent in the Articles of Confed-

eration, and the lack of national power over commerce was seen as a

major problem in the 1780s.

217

In Federalist No. 42, James Madison

identified the inability of Congress to regulate interstate commerce as

a “defect of power in the existing Confederacy” which has “been

clearly pointed out by experience.”

218

He then explained that a “very

material object” of granting power to Congress to regulate interstate

commerce was to allow Congress to provide for “the relief of the

States which import and export through other States from the im-

proper contributions levied on them by the latter.”

219

The Supreme Court has interpreted the Commerce Clause in

light of this criticism of the Articles of Confederation. For example, in

213

See, e.g., id. at 163.

214

See id.

215

See id.

216

U.S. C

ONST

. art. I, § 8, cl. 3.

217

See T

EDERALIST

. 42, supra note 148, at 266–68 (James Madison). R

218

Id. at 267 (James Madison).

219

Id.

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428 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

Dennis v. Higgins,

220

the Supreme Court cited Federalist Nos. 7, 11,

22, 42, and 53, which all described the poor economic conditions that

prevailed prior to adoption of the Constitution.

221

The Court ex-

plained: “The lack of a national power over commerce during the Ar-

ticles of Confederation led to ongoing disputes among the States, and

the prospect of a descent toward even more intense commercial ani-

mosity was one of the principal arguments in favor of the Constitu-

tion.”

222

Other cases have cited the same experience under the

Articles of Confederation when interpreting the Commerce Clause.

223

Claims that rely on criticisms of the Articles of Confederation

typically seek to establish what the Framers subjectively intended or

the participants at the state ratifying conventions subjectively under-

stood the Constitution to accomplish. Unlike claims based on a com-

parison of texts or governmental structures, they necessarily rely on

extrinsic evidence that typically would not affect the original, objec-

tive meaning of the text of the Constitution. In particular cases, how-

ever, all three types of meaning might be consistent.

Researchers making claims about the original meaning of a con-

stitutional provision that rely on this kind of reasoning must under-

take several steps. First, they must find some criticism of the Articles

of Confederation—in the Federalist Papers or elsewhere—that is ad-

dressed to the same issue as the constitutional provision. Then, re-

searchers must show in some way that the persons who framed and

ratified the Constitution were familiar with the criticism. For instance,

perhaps they remarked on it at the Constitutional Convention or in

one of the state ratifying conventions. Finally, researchers must find

indications that the Constitution was designed or understood to ad-

dress and remedy the criticism of the Articles of Confederation. A

deficiency in any link in this chain would weaken the claim about the

original meaning.

D. Claims Based on the Controversial Theory that the Constitution

Did Not Fully Replace the Articles and that the Articles

Therefore Continue to Supplement the Constitution

A fourth type of claim about the meaning of the Constitution

rests on a theory that the Constitution implicitly continues some of the

220

498 U.S. 439 (1991).

221

Id. at 453–54 (Kennedy, J., dissenting).

222

Id. at 453 (Kennedy, J., dissenting).

223

See, e.g., EEOC v. Wyoming, 460 U.S. 226, 244–45, 245 n.1 (1983) (Stevens, J.,

concurring).

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principles established by the Articles of Confederation. The theory is

controversial because it goes against the generally accepted idea that

the Constitution replaced the Articles of Confederation, and that the

Articles, like a repealed statute or rescinded treaty, have no continu-

ing validity. Yet, despite being somewhat counterintuitive, the theory

has a strong pedigree and appears to be correct at least in some

instances.

A very simple illustration of the theory, with little practical conse-

quence, concerns the name “United States of America.” When and

how did this become the official title of our national government? The

answer appears in the first article of the Articles of Confederation,

which announced: “The Stile of this confederacy shall be, ‘The United

States of America.’”

224

The Constitution contains no comparable pro-

vision expressly conferring a name on the new Republic. Instead, the

Constitution’s preamble and several subsequent provisions simply use

the name “United States of America,” or “United States,”

225

appar-

ently assuming that the name given to the national government under

the Articles of Confederation would remain in effect—which history

shows it did.

A more significant example concerns Article XIII of the Articles

of Confederation, which declares that “the union shall be perpet-

ual.”

226

Nothing in the Constitution addresses this issue, a point that

became evident before and during the Civil War when some states

claimed the power to secede. In his first Inaugural Address, Lincoln

believed secession was not possible. Drawing on the Articles of Con-

federation, Lincoln said:

[W]e find the proposition that, in legal contemplation, the

Union is perpetual, confirmed by the history of the Union

itself. The Union is much older than the Constitution. It was

formed in fact, by the Articles of Association in 1774. It was

matured and continued by the Declaration of Independence

in 1776. It was further matured and the faith of all the then

thirteen States expressly plighted and engaged that it should

be perpetual, by the Articles of Confederation in 1778. And

finally, in 1787, one of the declared objects for ordaining and

establishing the Constitution, was “to form a more perfect

union.”

227

224

RTICLES OF

ONFEDERATION

of 1781, art. I.

225

U.S. C

ONST

. pmbl.

226

RTICLES OF

ONFEDERATION

of 1781, art. XIII.

227

Abraham Lincoln, First Inaugural Address—Final Text (Mar. 4, 1861), in 4 T

OL-

LECTED

ORKS OF

BRAHAM

INCOLN

262, 265 (Roy P. Basler ed., 1953) (footnote omitted).

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430 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

In this passage, President Lincoln assumes that the Constitution con-

tinued the principle of perpetual union formally established by Article

XIII of the Articles of Confederation.

This question of whether the Constitution allows states to secede

ultimately came before the Supreme Court in 1868, in Texas v.

White.

228

That case concerned U.S. government bonds worth $5 mil-

lion that were issued to the state government of Texas in settlement of

certain boundary claims.

229

After the Civil War, litigation arose about

whether the bonds could be enforced.

230

After describing how the “in-

surgent legislature” voted to secede from the United States,

231

the Su-

preme Court considered two fundamental issues: “Did Texas, in

consequence of these acts, cease to be a State? Or, if not, did the State

cease to be a member of the Union?”

232

The Court ultimately held

that the acts of secession were null and void.

233

Echoing what Presi-

dent Lincoln had said, the Court ruled:

[The Union of the States] received definite form, and charac-

ter, and sanction from the Articles of Confederation. By

these the Union was solemnly declared to “be perpetual.”

And when these Articles were found to be inadequate to the

exigencies of the country, the Constitution was ordained “to

form a more perfect Union.” It is difficult to convey the idea

of indissoluble unity more clearly than by these words. What

can be indissoluble if a perpetual Union, made more perfect,

is not?

234

A third example of this type of claim about the original meaning

of the Constitution concerns the obligation of the states jointly to re-

spond to external threats. Article III of the Articles of Confederation

established a duty of mutual self-defense, proclaiming:

The said states hereby severally enter into a firm league of

friendship with each other, for their common defence, . . .

binding themselves to assist each other, against all force of-

fered to, or attacks made upon them, or any of them, on ac-

count of religion, sovereignty, trade, or any other pretence

whatever.

235

228

74 U.S. (7 Wall.) 700 (1868), overruled in part by Morgan v. United States, 113 U.S. 476

(1885).

229

See White, 74 U.S. at 703.

230

See id. at 717.

231

Id. at 718.

232

Id. at 724.

233

See id. at 726.

234

Id. at 725.

235

RTICLES OF

ONFEDERATION

of 1781, art. III.

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The Constitution mentions in the preamble that a goal of the

Constitution is to “provide . . . for the common defence”

236

and that

Congress can spend money for the “common defense,” but the Consti-

tution does not say expressly that all states will respond to an attack

against anyone of them. Still, the obligation of mutual self-defense

may continue.

237

Although established by history, this line of argumentation raises

a few difficult theoretical questions. One issue is how the Articles of

Confederation might bind the thirty-seven out of fifty states that

never ratified them. Perhaps the Constitution implicitly incorporates

some prior principles from the Articles and all states became bound

by them when they ratified the Constitution. A second question is why

the Framers of the Constitution would have wanted to preserve im-

portant principles from the Articles of Confederation but did not ad-

dress them with explicit provision. Perhaps they thought they were so

self-evident that they required no discussion. Unfortunately, neither

President Lincoln, nor the Supreme Court, has provided clear answers

to these questions.

ONCLUSION

The Articles of Confederation joined the states in their first for-

mal union over 230 years ago. Although the Articles remained in ef-

fect for only eight years, some good can come even from experiments

that ultimately fail. Experience under the Articles of Confederation

greatly influenced the drafting of the Constitution. As this Article has

shown, the Articles of Confederation serve a very important continu-

ing role by providing evidence, in various ways, of the original mean-

ing of the Constitution. The Supreme Court has cited the Articles of

Confederation in more than 180 cases. Reviewing these decisions

reveals four general types of constitutional arguments that in some

way rely on the Articles of Confederation. Although none of them is

free from difficulty, each at least rests on a sound theoretical basis.

Anyone making or evaluating claims about the original meaning of

the Constitution should consider how the Articles of Confederation

might provide additional or contrary evidence.

236

U.S. C

ONST

. pmbl.

237

Cf. Arver v. United States, 245 U.S. 366, 380 (1918) (upholding federal law drafting men

for service in the Army in part on grounds that states provided men for the Continental Army

under the Articles of Confederation).

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432 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

PPENDIX

A: A

NNOTATED

RTICLES OF

ONFEDERATION

Below is an annotated copy of the Articles of Confederation. The

text of the Articles is in Roman type.

238

The annotations are in italics

and the text of the United States Constitution is underlined. Para-

graph designators, which are indicated in brackets (e.g., “[1]”) have

been added for clarity; official versions of the Articles of Confedera-

tion do not include the paragraph designators. The annotations princi-

pally serve to link the clause in the Articles of Confederation to

closely related clauses in the Constitution.

ARTICLES OF CONFEDERATION OF 1781

To all to whom these Presents shall come, we, the undersigned

Delegates of the States affixed to our Names send greeting. Whereas

the Delegates of the United States of America in Congress assembled

did on the fifteenth day of November in the year of our Lord One

Thousand Seven Hundred and Seventy seven, and in the Second Year

of the Independence of America agree to certain articles of Confeder-

ation and perpetual Union between the States of Newhampshire,

Massachusetts-bay, Rhodeisland and Providence Plantations, Con-

necticut, New York, New Jersey, Pennsylvania, Delaware, Maryland,

Virginia, North Carolina, South Carolina, and Georgia in the Words

following, viz. “Articles of Confederation and perpetual Union be-

tween the States of Newhampshire, Massachusetts-bay, Rhodeisland

and Providence Plantations, Connecticut, New York, New Jersey,

Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South

Carolina, and Georgia.

I. The Stile of this confederacy shall be, “The United States of

America.”

The Constitution contains no provision conferring a name on the

Republic. The preamble, however, identifies the Constitution as being

“for the United States of America.”

U.S. C

ONST

pmbl.

II. Each state retains its sovereignty, freedom and independence,

and every Power, Jurisdiction and right, which is not by this confeder-

ation expressly delegated to the United States, in Congress assembled.

Although the Constitution presupposes some degree of state auton-

omy, it does not expressly guarantee (or even) address state “sover-

238

The text of the Articles of the Confederation is taken from the Our Documents initia-

tive by the National History Day, The National Archives and Records Administration, and USA

Freedom Corps. Transcript of Articles of Confederation (1777), O

OCUMENTS

, http://

www.ourdocuments.gov/doc.php?doc=3&page=transcript (last visited Dec. 20, 2016).

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eignty,” “freedom,” or “independence.” But the Tenth Amendment

says: “The powers not delegated to the United States by the Constitu-

tion, nor prohibited by it to the States, are reserved to the States respec-

tively, or to the people.”

U.S. C

ONST

amend. X.

III. The said states hereby severally enter into a firm league of

friendship with each other, for their common defence, the security of

their Liberties, and their mutual and general welfare,

This provision resembles the Constitution’s preamble, which says:

“We the People of the United States, in Order to form a more perfect

Union, establish Justice, insure domestic Tranquility, provide for the

common defence, promote the general Welfare, and secure the Bless-

ings of Liberty to ourselves and our Posterity, do ordain and establish

this Constitution for the United States of America.”

U.S. C

ONST

pmbl.

binding themselves to assist each other, against all force offered

to, or attacks made upon them, or any of them, on account of religion,

sovereignty, trade, or any other pretence whatever.

The Constitution does not expressly commit the states to defend

each other. But it does provide that “Congress shall have Power . . . To

provide for calling forth the Militia to execute the Laws of the Union,

suppress Insurrections and repel Invasions.”

U.S. C

ONST

art. I, § 8, cl.

15.

IV. [1] The better to secure and perpetuate mutual friendship and

intercourse among the people of the different states in this union, the

free inhabitants of each of these states, paupers, vagabonds and fugi-

tives from Justice excepted, shall be entitled to all privileges and im-

munities of free citizens in the several states;

“The Citizens of each State shall be entitled to all Privileges and

Immunities of Citizens in the several States.”

U.S. C

ONST

art. IV, § 2,

cl. 1.

and the people of each state shall have free ingress and regress to

and from any other state,

Not expressly addressed in the text of the Constitution.

and shall enjoy therein all the privileges of trade and commerce,

subject to the same duties, impositions and restrictions as the inhabi-

tants thereof respectively,

Not expressly addressed in the text of the Constitution.

provided that such restrictions shall not extend so far as to pre-

vent the removal of property imported into any state, to any other

State of which the Owner is an inhabitant;

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434 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

Not expressly addressed in the text of the Constitution. This provi-

sion apparently served to allow a slaveowner, who had brought a slave

into a free state, to take the slave back out of the state. Brainerd Currie

& Herma Hill Schreter, Unconstitutional Discrimination in the Con-

flict of Laws: Privileges and Immunities, 69

ALE

L.J

. 1323, 1336 n.35

(1960). This was a concern following Somerset v. Stewart, 98 Eng.

Rep. 499 (1772), in which the King’s Bench freed a slave brought from

Virginia to England. The Constitution addressed fugitive slaves in Arti-

cle IV, saying “No Person held to Service or Labour in one State, under

the Laws thereof, escaping into another, shall, in Consequence of any

Law or Regulation therein, be discharged from such Service or Labour,

but shall be delivered up on Claim of the Party to whom such Service

or Labour may be due.”

U.S. C

ONST

. art. IV, § 2, cl. 3.

provided also that no imposition, duties or restriction shall be laid

by any state, on the property of the united states, or either of them.

Not expressly addressed in the text of the Constitution. The Su-

preme Court, however, has held that the states do not have the power to

tax the federal government in McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316 (1819).

[2] If any Person guilty of, or charged with, treason, felony, or

other high misdemeanor in any state, shall flee from Justice, and be

found in any of the united states, he shall upon demand of the Gover-

nor or executive power of the state from which he fled, be delivered

up, and removed to the state having jurisdiction of his offense.

“A Person charged in any State with Treason, Felony, or other

Crime, who shall flee from Justice, and be found in another State, shall

on Demand of the executive Authority of the State from which he fled,

be delivered up, to be removed to the State having Jurisdiction of the

Crime.”

U.S. C

ONST

art. IV, § 2, cl. 2.

[3] Full faith and credit shall be given in each of these states to

the records, acts and judicial proceedings of the courts and magistrates

of every other state.

“Full Faith and Credit shall be given in each State to the public

Acts, Records, and judicial Proceedings of every other State. And the

Congress may by general Laws prescribe the Manner in which such

Acts, Records and Proceedings shall be proved, and the Effect thereof.”

U.S. C

ONST

art. IV, § 1.

V. [1] For the more convenient management of the general inter-

ests of the united states, delegates shall be annually appointed in such

manner as the legislature of each state shall direct, to meet in Con-

gress on the first Monday in November, in every year, with a power

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2017] GUIDE TO THE ARTICLES OF CONFEDERATION 435

reserved to each state to recall its delegates, or any of them, at any

time within the year, and to send others in their stead, for the remain-

der of the Year.

The Constitution originally provided that the state legislatures

would appoint senators from each state: “The Senate of the United

States shall be composed of two Senators from each State, chosen by the

Legislature thereof, for six Years . . . .”

U.S. C

ONST

art. I, § 3, cl. 1.

[2] No State shall be represented in Congress by less than two,

nor by more than seven Members;

“Representatives . . . shall be apportioned among the several States

which may be included within this Union, according to their respective

Numbers, which shall be determined by adding to the whole Number of

free Persons, including those bound to Service for a Term of Years, and

excluding Indians not taxed, three fifths of all other Persons. The actual

Enumeration shall be made within three Years after the first Meeting of

the Congress of the United States, and within every subsequent Term of

ten Years, in such Manner as they shall by Law direct. The Number of

Representatives shall not exceed one for every thirty Thousand, but

each State shall have at Least one Representative; and until such enu-

meration shall be made, the State of New Hampshire shall be entitled to

chuse three, Massachusetts eight, Rhode Island and Providence Planta-

tions one, Connecticut five, New York six, New Jersey four, Penn-

sylvania eight, Delaware one, Maryland six, Virginia ten, North

Carolina five, South Carolina five, and Georgia three.”

U.S. C

ONST

art. I, § 2, cl. 3. “The Senate of the United States shall be composed of

two Senators from each State, chosen by the Legislature thereof, for six

Years; and each Senator shall have one Vote.”

U.S. C

ONST

art. I, § 3,

cl. 1.

and no person shall be capable of being delegate for more than

three years, in any term of six years;

No comparable provision in the text of the Constitution.

nor shall any person, being a delegate, be capable of holding any

office under the united states, for which he, or another for his benefit

receives any salary, fees or emolument of any kind.

“No Senator or Representative shall, during the Time for which he

was elected, be appointed to any civil Office under the Authority of the

United States, which shall have been created, or the Emoluments

whereof shall have been encreased during such time; and no Person

holding any Office under the United States, shall be a Member of either

House during his Continuance in Office.”

U.S. C

ONST

art. I, § 6, cl. 2.

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436 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

[3] Each State shall maintain its own delegates in a meeting of the

states, and while they act as members of the committee of the states.

“The Senators and Representatives shall receive a Compensation

for their Services, to be ascertained by Law, and paid out of the Trea-

sury of the United States.”

U.S. C

ONST

art. I, § 6, cl. 1.

[4] In determining questions in the united states, in Congress as-

sembled, each state shall have one vote.

“[E]ach Senator shall have one Vote.”

U.S. C

ONST

art. I, § 3, cl. 1.

Note: The Constitution does not expressly say that each representative

will have one vote.

[5] Freedom of speech and debate in Congress shall not be im-

peached or questioned in any Court, or place out of Congress, and the

members of congress shall be protected in their persons from arrests

and imprisonments, during the time of their going to and from, and

attendance on congress, except for treason, felony, or breach of the

peace.

“They shall in all Cases, except Treason, Felony and Breach of the

Peace, be privileged from Arrest during their Attendance at the Session

of their respective Houses, and in going to and returning from the same;

and for any Speech or Debate in either House, they shall not be ques-

tioned in any other Place.”

U.S. C

ONST

art. I, § 6, cl. 1.

VI. [1] No State, without the Consent of the united States, in con-

gress assembled, shall send any embassy to, or receive any embassy

from, or enter into any conference, agreement, alliance, or treaty with

any King, prince or state;

“No State shall enter into any Treaty, Alliance, or Confedera-

tion . . . .”

U.S. C

ONST

art. I, § 10, cl. 1. “No State shall, without the

Consent of Congress, . . . enter into any Agreement or Compact . . . with

a foreign Power . . . .”

U.S. C

ONST

art. I, § 10, cl. 3.

nor shall any person holding any office of profit or trust under the

united states, or any of them, accept of any present, emolument, of-

fice, or title of any kind whatever, from any king, prince or foreign

state;

“[A]nd no Person holding any Office of Profit or Trust under

them, shall, without the Consent of the Congress, accept of any present,

Emolument, Office, or Title, of any kind whatever, from any King,

Prince, or foreign State.”

U.S. C

ONST

art. I, § 9, cl. 8.

nor shall the united states, in congress assembled, or any of them,

grant any title of nobility.

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“No Title of Nobility shall be granted by the United States.”

U.S.

ONST

art. I, § 9, cl. 8. “No State shall . . . grant any Title of Nobility.”

U.S. C

ONST

art. I, § 10, cl. 1.

[2] No two or more states shall enter into any treaty, confedera-

tion, or alliance whatever between them, without the consent of the

united states, in congress assembled, specifying accurately the pur-

poses for which the same is to be entered into, and how long it shall

continue.

“No State shall, without the Consent of Congress . . . enter into any

Agreement or Compact with another State . . . .”

U.S. C

ONST

art. I,

§ 10, cl. 3.

No State shall lay any imposts or duties, which may interfere with

any stipulations in treaties, entered into by the united States in con-

gress assembled, with any king, prince, or State, in pursuance of any

treaties already proposed by congress, to the courts of France and

Spain.

“No State shall, without the Consent of the Congress, lay any Im-

posts or Duties on Imports or Exports, except what may be absolutely

necessary for executing it’s inspection Laws: and the net Produce of all

Duties and Imposts, laid by any State on Imports or Exports, shall be

for the Use of the Treasury of the United States; and all such Laws shall

be subject to the Revision and Controul of the Congress.”

U.S. C

ONST

art. I, § 10, cl. 2. “No State shall, without the Consent of Congress, lay

any Duty of Tonnage . . . .”

U.S. C

ONST

. art. I, § 10, cl. 3.

[3] No vessels of war shall be kept up in time of peace, by any

state, except such number only, as shall be deemed necessary by the

united states, in congress assembled, for the defence of such state, or

its trade;

“No State shall, without the Consent of Congress, . . . keep Troops,

or Ships of War in time of Peace . . . .”

U.S. C

ONST

. art. I, § 10, cl. 3.

nor shall any body of forces be kept up, by any state, in time of

peace, except such number only as, in the judgment of the united

states, in congress assembled, shall be deemed requisite to garrison

the forts necessary for the defence of such state;

“No State shall, without the Consent of Congress, . . . keep Troops,

. . . in time of Peace . . . .”

U.S. C

ONST

. art. I, § 10, cl. 3.

but every state shall always keep up a well regulated and disci-

plined militia, sufficiently armed and accounted, and shall provide and

constantly have ready for use, in public stores, a due number of field

pieces and tents, and a proper quantity of arms, ammunition, and

camp equipage.

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438 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

No comparable provision in the text of the Constitution.

[4] No State shall engage in any war without the consent of the

united States in congress assembled, unless such State be actually in-

vaded by enemies, or shall have received certain advice of a resolution

being formed by some nation of Indians to invade such State, and the

danger is so imminent as not to admit of a delay till the united states

in congress assembled, can be consulted:

“No State shall, without the Consent of Congress, . . . engage in

War, unless actually invaded, or in such imminent Danger as will not

admit of delay.”

U.S. C

ONST

. art. I, § 10, cl. 3.

nor shall any state grant commissions to any ships or vessels of

war, nor letters of marque or reprisal, except it be after a declaration

of war by the united states in congress assembled, and then only

against the kingdom or State, and the subjects thereof, against which

war has been so declared, and under such regulations as shall be es-

tablished by the united states in congress assembled, unless such state

be infested by pirates, in which case vessels of war may be fitted out

for that occasion, and kept so long as the danger shall continue, or

until the united states in congress assembled shall determine

otherwise.

“No State shall . . . grant Letters of Marque and Reprisal . . . .”

U.S. C

ONST

. art. I, § 10, cl. 1.

VII. When land forces are raised by any state, for the common

defence, all officers of or under the rank of colonel, shall be appointed

by the legislature of each state respectively by whom such forces shall

be raised, or in such manner as such state shall direct, and all vacan-

cies shall be filled up by the state which first made appointment.

No comparable provision in the text of the Constitution.

VIII. All charges of war, and all other expenses that shall be in-

curred for the common defence or general welfare, and allowed by the

united states in congress assembled, shall be defrayed out of a com-

mon treasury, which shall be supplied by the several states, in propor-

tion to the value of all land within each state, granted to or surveyed

for any Person, as such land and the buildings and improvements

thereon shall be estimated, according to such mode as the united

states, in congress assembled, shall, from time to time, direct and

appoint.

No comparable provision in the text of the Constitution.

The taxes for paying that proportion shall be laid and levied by

the authority and direction of the legislatures of the several states

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within the time agreed upon by the united states in congress

assembled.

No comparable provision in the text of the Constitution.

IX. [1] The united states, in congress assembled, shall have the

sole and exclusive right and power of determining on peace and war,

except in the cases mentioned in the sixth article

“The Congress shall have Power . . . To declare War . . . .”

U.S.

ONST

art. I, § 8, cl. 11.

—of sending and receiving ambassadors

“[The President] shall nominate, and by and with the Advice and

Consent of the Senate, shall appoint Ambassadors, other public Minis-

ters and Consuls . . . .”

U.S. C

ONST

. art. II, § 2, cl. 2. “[The President]

shall receive Ambassadors and other public Ministers . . . .”

U.S.

ONST

art. II, § 3.

—entering into treaties and alliances,

“[The President] shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided two thirds of the Sen-

ators present concur.”

U.S. C

ONST

art. II, § 2, cl. 2.

provided that no treaty of commerce shall be made, whereby the

legislative power of the respective states shall be restrained from im-

posing such imposts and duties on foreigners, as their own people are

subjected to,

“[A]ll Duties, Imposts and Excises shall be uniform throughout

the United States.”

U.S. C

ONST

art. I, § 8, cl. 1.

or from prohibiting the exportation or importation of any species

of goods or commodities whatsoever

No comparable provision in the text of the Constitution. Note:

Congress regularly prohibits importation of goods (e.g., illegal drugs)

and exports of goods (e.g., certain weapons and technologies). But the

Constitution did contain this provision: “The Migration or Importation

of such Persons as any of the States now existing shall think proper to

admit, shall not be prohibited by the Congress prior to the Year one

thousand eight hundred and eight, but a Tax or duty may be imposed

on such Importation, not exceeding ten dollars for each Person.”

U.S.

ONST

art. I, § 9, cl. 1.

—of establishing rules for deciding, in all cases, what captures on

land or water shall be legal, and in what manner prizes taken by land

or naval forces in the service of the united Sates, shall be divided or

appropriated

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440 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

“The Congress shall have Power . . . To . . . make Rules concern-

ing Captures on Land and Water.”

U.S. C

ONST

art. I, § 8, cl. 11.

—of granting letters of marque and reprisal in times of peace

“The Congress shall have Power . . . To . . . grant Letters of Mar-

que and Reprisal.”

U.S. C

ONST

art. I, § 8, cl. 11.

—appointing courts for the trial of piracies and felonies commit-

ted on the high seas; and establishing courts; for receiving and deter-

mining finally appeals in all cases of captures; provided that no

member of congress shall be appointed a judge of any of the said

courts.

“Congress shall have Power . . . To define and punish Piracies and

Felonies committed on the high Seas . . . .”

U.S. C

ONST

art. I, § 8, cl.

10. “The judicial Power shall extend to all Cases, in Law and Equity,

arising under this Constitution, the Laws of the United States, and Trea-

ties made . . . .”

U.S. C

ONST

art. III, § 2, cl. 1. “[N]o Person holding

any Office under the United States, shall be a Member of either House

during his Continuance in Office.”

U.S. C

ONST

art. I, § 6, cl. 2.

[2] The united states, in congress assembled shall also be the last

resort on appeal, in all disputes and differences now subsisting, or that

hereafter may arise between two or more states concerning boundary,

jurisdiction, or any other cause whatever;

“The judicial Power shall extend to all Cases, in Law and Eq-

uity, . . . to Controversies between two or more States.”

U.S. C

ONST

art.

III, § 2, cl. 1.

which authority shall always be exercised in the manner follow-

ing. Whenever the legislative or executive authority, or lawful agent of

any state in controversy with another, shall present a petition to con-

gress, stating the matter in question, and praying for a hearing, notice

thereof shall be given, by order of congress, to the legislative or execu-

tive authority of the other state in controversy, and a day assigned for

the appearance of the parties by their lawful agents, who shall then be

directed to appoint, by joint consent, commissioners or judges to con-

stitute a court for hearing and determining the matter in question: but

if they cannot agree, congress shall name three persons out of each of

the united states, and from the list of such persons each party shall

alternately strike out one, the petitioners beginning, until the number

shall be reduced to thirteen; and from that number not less than

seven, nor more than nine names, as congress shall direct, shall, in the

presence of congress, be drawn out by lot, and the persons whose

names shall be so drawn, or any five of them, shall be commissioners

or judges, to hear and finally determine the controversy, so always as

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a major part of the judges, who shall hear the cause, shall agree in the

determination: and if either party shall neglect to attend at the day

appointed, without showing reasons which congress shall judge suffi-

cient, or being present, shall refuse to strike, the congress shall pro-

ceed to nominate three persons out of each State, and the secretary of

congress shall strike in behalf of such party absent or refusing; and the

judgement and sentence of the court, to be appointed in the manner

before prescribed, shall be final and conclusive; and if any of the par-

ties shall refuse to submit to the authority of such court, or to appear

or defend their claim or cause, the court shall nevertheless proceed to

pronounce sentence, or judgement, which shall in like manner be final

and decisive; the judgement or sentence and other proceedings being

in either case transmitted to congress, and lodged among the acts of

congress, for the security of the parties concerned: provided that every

commissioner, before he sits in judgement, shall take an oath to be

administered by one of the judges of the supreme or superior court of

the State where the cause shall be tried, “well and truly to hear and

determine the matter in question, according to the best of his judge-

ment, without favour, affection, or hope of reward:

“In all Cases . . . in which a State shall be Party, the supreme Court

shall have original Jurisdiction.”

U.S. C

ONST

art. III, § 2, cl. 2.

“provided, also, that no State shall be deprived of territory for the

benefit of the united states.

“The Congress shall have Power to dispose of and make all need-

ful Rules and Regulations respecting the Territory or other Property

belonging to the United States; and nothing in this Constitution shall be

so construed as to Prejudice any Claims of the United States, or of any

particular State.”

U.S. C

ONST

art. IV, § 3, cl. 2.

[3] All controversies concerning the private right of soil claimed

under different grants of two or more states, whose jurisdictions as

they may respect such lands, and the states which passed such grants

are adjusted, the said grants or either of them being at the same time

claimed to have originated antecedent to such settlement of jurisdic-

tion, shall, on the petition of either party to the congress of the united

states, be finally determined, as near as may be, in the same manner as

is before prescribed for deciding disputes respecting territorial juris-

diction between different states.

No comparable provision in the text of the Constitution.

[4] The united states, in congress assembled, shall also have the

sole and exclusive right and power of regulating the alloy and value of

coin struck by their own authority, or by that of the respective states

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442 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

“Congress shall have Power . . . To coin Money, regulate the Value

thereof, and of foreign Coin . . . .”

U.S. C

ONST

art. I, § 8, cl. 5. “No

State shall . . . coin Money.”

U.S. C

ONST

art. I, § 10, cl. 1.

—fixing the standard of weights and measures throughout the

united states

“Congress shall have Power . . . To . . . fix the Standard of Weights

and Measures.”

U.S. C

ONST

art. I, § 8, cl. 5.

—regulating the trade and managing all affairs with the Indians,

not members of any of the states; provided that the legislative right of

any state, within its own limits, be not infringed or violated

“Congress shall have Power . . . To regulate Commerce . . . with

the Indian Tribes.”

U.S. C

ONST

art. I, § 8, cl. 3.

—establishing and regulating post-offices from one state to an-

other, throughout all the united states, and exacting such postage on

the papers passing through the same, as may be requisite to defray the

expenses of the said office

“Congress shall have Power . . . To establish Post Offices and post

Roads.”

U.S. C

ONST

art. I, § 8, cl. 7.

—appointing all officers of the land forces in the service of the

united States, excepting regimental officers

“[The President] . . . shall appoint . . . all other Officers of the

United States, whose Appointments are not herein otherwise provided

for, and which shall be established by Law: but the Congress may by

Law vest the Appointment of such inferior Officers, as they think

proper, in the President alone, in the Courts of Law, or in the Heads of

Departments.”

U.S. C

ONST

art. II, § 2, cl. 2.

—appointing all the officers of the naval forces, and commission-

ing all officers whatever in the service of the united states;

“[The President] . . . shall appoint . . . all other Officers of the

United States, whose Appointments are not herein otherwise provided

for, and which shall be established by Law: but the Congress may by

Law vest the Appointment of such inferior Officers, as they think

proper, in the President alone, in the Courts of Law, or in the Heads of

Departments.”

U.S. C

ONST

art. II, § 2, cl. 2.

making rules for the government and regulation of the said land

and naval forces, and directing their operations.

“The Congress shall have Power . . . To make Rules for the Gov-

ernment and Regulation of the land and naval Forces.”

U.S. C

ONST

art. I, § 8, cl. 14.

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[5] The united States, in congress assembled, shall have authority

to appoint a committee, to sit in the recess of congress, to be denomi-

nated, “A Committee of the States,” and to consist of one delegate

from each State;

“The executive Power shall be vested in a President of the United

States of America.”

U.S. C

ONST

art. II, § 1, cl. 1.

and to appoint such other committees and civil officers as may be

necessary for managing the general affairs of the united states under

their direction

“The President shall have Power to fill up all Vacancies that may

happen during the Recess of the Senate, by granting Commissions

which shall expire at the End of their next Session.”

U.S. C

ONST

art. II,

§ 2, cl. 3.

—to appoint one of their number to preside; provided that no

person be allowed to serve in the office of president more than one

year in any term of three years;

“[The President] shall hold his Office during the Term of four

Years . . . .”

U.S. C

ONST

art. II, § 1, cl. 1.

to ascertain the necessary sums of money to be raised for the ser-

vice of the united states, and to appropriate and apply the same for

defraying the public expenses;

“The Congress shall have Power . . . to pay the Debts and provide

for the common Defence and general Welfare of the United States.”

U.S. C

ONST

art. I, § 8, cl. 1.

to borrow money or emit bills on the credit of the united states,

transmitting every half year to the respective states an account of the

sums of money so borrowed or emitted,

“The Congress shall have Power . . . To borrow Money on the

credit of the United States.”

U.S. C

ONST

art. I, § 8, cl. 2.

—to build and equip a navy

“The Congress shall have Power . . . To provide and maintain a

Navy.”

U.S. C

ONST

art I. § 8, cl. 13.

—to agree upon the number of land forces, and to make requisi-

tions from each state for its quota, in proportion to the number of

white inhabitants in such state, which requisition shall be binding; and

thereupon the legislature of each state shall appoint the regimental

officers, raise the men, and clothe, arm, and equip them, in a soldier-

like manner, at the expense of the united states; and the officers and

men so clothed, armed, and equipped, shall march to the place ap-

pointed, and within the time agreed on by the united states, in con-

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444 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

gress assembled; but if the united states, in congress assembled, shall,

on consideration of circumstances, judge proper that any state should

not raise men, or should raise a smaller number than its quota, and

that any other state should raise a greater number of men than the

quota thereof, such extra number shall be raised, officered, clothed,

armed, and equipped in the same manner as the quota of such state,

unless the legislature of such state shall judge that such extra number

cannot be safely spared out of the same, in which case they shall raise,

officer, clothe, arm, and equip, as many of such extra number as they

judge can be safely spared. And the officers and men so clothed,

armed, and equipped, shall march to the place appointed, and within

the time agreed on by the united states in congress assembled.

The Constitution differs considerably from the Articles of Confed-

eration on this point. Whereas the Articles required the state to provide

officers and men to the Continental Army, the Constitution provides

that “[t]he Congress shall have Power . . . To raise and support Armies,

but no Appropriation of Money to that Use shall be for a longer Term

than two Years.”

U.S. C

ONST

art. I, § 8, cl. 12.

[6] The united states, in congress assembled, shall never engage in

a war, nor grant letters of marque and reprisal in time of peace, nor

enter into any treaties or alliances, nor coin money, nor regulate the

value thereof nor ascertain the sums and expenses necessary for the

defence and welfare of the united states, or any of them, nor emit

bills, nor borrow money on the credit of the united states, nor appro-

priate money, nor agree upon the number of vessels of war to be built

or purchased, or the number of land or sea forces to be raised, nor

appoint a commander in chief of the army or navy, unless nine states

assent to the same,

The Constitution provides that “Congress shall have Power . . . To

declare War, grant Letters of Marque and Reprisal, and make Rules

concerning Captures on Land and Water” without requiring a

supermajority of the states to approve.

U.S. C

ONST

art. I, § 8, cl. 11.

nor shall a question on any other point, except for adjourning

from day to day, be determined, unless by the votes of a majority of

the united states in congress assembled.

“[A] Majority of each [House] shall constitute a Quorum to do

Business; but a smaller Number may adjourn from day to day . . . .”

U.S. C

ONST

art. I, § 5, cl. 1.

[7] The congress of the united states shall have power to adjourn

to any time within the year, and to any place within the united states,

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so that no period of adjournment be for a longer duration than the

space of six Months,

“Neither House, during the Session of Congress, shall, without the

Consent of the other, adjourn for more than three days, nor to any

other Place than that in which the two Houses shall be sitting.”

U.S.

ONST

art. I, § 5, cl. 4.

and shall publish the Journal of their proceedings monthly, except

such parts thereof relating to treaties, alliances, or military operations,

as in their judgement require secrecy;

“Each House shall keep a Journal of its Proceedings, and from

time to time publish the same, excepting such Parts as may in their

Judgment require Secrecy.”

U.S. C

ONST

art. I, § 5, cl. 3.

and the yeas and nays of the delegates of each State, on any ques-

tion, shall be entered on the Journal, when it is desired by any dele-

gate; and the delegates of a State, or any of them, at his or their

request, shall be furnished with a transcript of the said Journal, except

such parts as are above excepted, to lay before the legislatures of the

several states.

“[A]nd the Yeas and Nays of the Members of either House on any

question shall, at the Desire of one fifth of those Present, be entered on

the Journal.”

U.S. C

ONST

art. I, § 5, cl. 3.

X. The committee of the states, or any nine of them, shall be au-

thorized to execute, in the recess of congress, such of the powers of

congress as the united states, in congress assembled, by the consent of

nine states, shall, from time to time, think expedient to vest them with;

provided that no power be delegated to the said committee, for the

exercise of which, by the articles of confederation, the voice of nine

states, in the congress of the united states assembled, is requisite.

No comparable provision in the text of the Constitution.

XI. Canada acceding to this confederation, and joining in the

measures of the united states, shall be admitted into, and entitled to

all the advantages of this union;

No comparable provision in the text of the Constitution.

but no other colony shall be admitted into the same, unless such

admission be agreed to by nine states.

“New States may be admitted by the Congress into this Union.”

U.S. C

ONST

art. IV, § 3, cl. 1.

XII. All bills of credit emitted, monies borrowed, and debts con-

tracted by or under the authority of congress, before the assembling of

the united states, in pursuance of the present confederation, shall be

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446 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

deemed and considered as a charge against the united States, for pay-

ment and satisfaction whereof the said united states and the public

faith are hereby solemnly pledged.

“All Debts contracted and Engagements entered into, before the

Adoption of this Constitution, shall be as valid against the United States

under this Constitution, as under the Confederation.”

U.S. C

ONST

art.

VI, § 1.

XIII. [1] Every State shall abide by the determinations of the

united states, in congress assembled, on all questions which by this

confederation are submitted to them.

“[T]he Laws of the United States which shall be made in Pursu-

ance [of the Constitution]; and all Treaties made, or which shall be

made, under the Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any state to the Contrary not-

withstanding.”

U.S. C

ONST

art. VI, § 2.

And the Articles of this confederation shall be inviolably ob-

served by every state,

“This Constitution . . . shall be the supreme Law of the Land; and

the Judges in every State shall be bound thereby, any Thing in the Con-

stitution or Laws of any state to the Contrary notwithstanding.”

U.S.

ONST

art. VI, § 2.

and the union shall be perpetual;

No comparable provision in the text of the Constitution.

nor shall any alteration at any time hereafter be made in any of

them, unless such alteration be agreed to in a congress of the united

states, and be afterwards con-firmed by the legislatures of every state.

“The Congress, whenever two thirds of both Houses shall deem it

necessary, shall propose Amendments to this Constitution, or, on the

Application of the Legislatures of two thirds of the several States, shall

call a Convention for proposing Amendments, which, in either Case,

shall be valid to all Intents and Purposes, as Part of this Constitution,

when ratified by the Legislatures of three fourths of the several States,

or by Conventions in three fourths thereof, as the one or the other

Mode of Ratification may be proposed by the Congress; Provided that

no Amendment which may be made prior to the Year One thousand

eight hundred and eight shall in any Manner affect the first and fourth

Clauses in the Ninth Section of the first Article; and that no State, with-

out its Consent, shall be deprived of its equal Suffrage in the Senate.”

U.S. C

ONST

art. V.

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[2] And Whereas it hath pleased the Great Governor of the

World to incline the hearts of the legislatures we respectively re-

present in congress, to approve of, and to authorize us to ratify the

said articles of confederation and perpetual union,

No comparable provision in the text of the Constitution.

Know Ye, that we, the undersigned delegates, by virtue of the

power and authority to us given for that purpose, do, by these

presents, in the name and in behalf of our respective constituents,

fully and entirely ratify and confirm each and every of the said articles

of confederation and perpetual union, and all and singular the matters

and things therein contained.

“The Ratification of the Conventions of nine States, shall be suffi-

cient for the Establishment of this Constitution between the States so

ratifying the Same.”

U.S. C

ONST

art. VII.

And we do further solemnly plight and engage the faith of our

respective constituents, that they shall abide by the determinations of

the united states in congress assembled, on all questions, which by the

said confederation are submitted to them. And that the articles

thereof shall be inviolably observed by the states we respectively re-

present, and that the union shall be perpetual.

No comparable provision in the text of the Constitution.

In Witness whereof, we have hereunto set our hands, in Congress.

Done at Philadelphia, in the State of Pennsylvania, the ninth Day of

July, in the Year of our Lord one Thousand seven Hundred and Sev-

enty eight, and in the third year of the Independence of America.

“[D]one in Convention by the Unanimous Consent of the States

present the Seventeenth Day of September in the Year of our Lord one

thousand seven hundred and Eighty seven and of the Independence of

the United States of America the Twelfth. In witness whereof We have

hereunto subscribed our Names.”

U.S. C

ONST

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PPENDIX

B: T

ABLE OF

ONSTITUTIONAL

ROVISIONS AND

ELATED

ROVISIONS IN THE

RTICLES OF

ONFEDERATION

The following table lists all of the provisions of the Constitution

(up to the Twelfth Amendment) in Roman type on the left and related

provisions in the Articles of Confederation in italics on the right. See

Appendix A for the text of the Articles of Confederation.

Preamble: Art. I; Art. III.

Art. I, § 1: No comparable provision.

Art. I, § 2, cl. 1: No comparable provision.

Art. I, § 2, cl. 2: No comparable provision.

Art. I, § 2, cl. 3: Art. V, para. 2.

Art. I, § 2, cl. 4: No comparable provision.

Art. I, § 2, cl. 5: No comparable provision.

Art. I, § 3, cl. 1: Art. V, paras. 1, 2, 4.

Art. I, § 3, cl. 2: Art. V, para. 1.

Art. I, § 3, cl. 3: No comparable provision.

Art. I, § 3, cl. 4: Art. IX, para. 5.

Art. I, § 3, cl. 5: No comparable provision.

Art. I, § 3, cl. 6: No comparable provision.

Art. I, § 3, cl. 7: No comparable provision.

Art. I, § 4, cl. 1: Art. V, para. 1.

Art. I, § 4, cl. 2: Art. V, para. 1.

Art. I, § 5, cl. 1: Art. IX, para. 5.

Art. I, § 5, cl. 2: No comparable provision.

Art. I, § 5, cl. 3: Art. IX, para. 7.

Art. I, § 5, cl. 4: Art. IX, para. 7.

Art. I, § 6, cl. 1: Art. V, paras. 3, 5.

Art. I, § 6, cl. 2: Art. V, para. 2; Art. IX, para. 1.

Art. I, § 7, cl. 1: No comparable provision.

Art. I, § 7, cl. 2: Art. IX, para. 6.

Art. I, § 7, cl. 3: Art. IX, para. 6.

Art. I, § 8, cl. 1: Art. IX, paras. 1, 5.

Art. I, § 8, cl. 2: Art. IX, paras. 5, 6.

Art. I, § 8, cl. 3: Art. IX, paras. 1, 4.

Art. I, § 8, cl. 4: No comparable provision.

Art. I, § 8, cl. 5: Art. IX, para. 4.

Art. I, § 8, cl. 6: Art. IX, para. 4.

Art. I, § 8, cl. 7: Art. IX, para. 4.

Art. I, § 8, cl. 8: No comparable provision.

Art. I, § 8, cl. 9: Art. IX, paras. 1, 2.

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Art. I, § 8, cl. 10: Art. IX, para. 1.

Art. I, § 8, cl. 11: Art. IX, paras. 1, 6.

Art. I, § 8, cl. 12: Art. IX, paras. 5, 6.

Art. I, § 8, cl. 13: Art. IX, paras. 5, 6.

Art. I, § 8, cl. 14: Art. IX, para. 4.

Art. I, § 8, cl. 15: Art. III; Art. XI, para. 5.

Art. I, § 8, cl. 16: Art. VI, para. 4; Art. VII; Art. XI, para. 5.

Art. I, § 8, cl. 17: Art. XI, para. 7.

Art. I, § 8, cl. 18: No comparable provision.

Art. I, § 9, cl. 1: Art. IX, para. 1.

Art. I, § 9, cl. 2: No comparable provision.

Art. I, § 9, cl. 3: No comparable provision.

Art. I, § 9, cl. 4: Art. VIII.

Art. I, § 9, cl. 5: No comparable provision.

Art. I, § 9, cl. 6: Art. IV, para. 1.

Art. I, § 9, cl. 7: Art. VIII; Art. IX, para. 5.

Art. I, § 9, cl. 8: Art. VI, para. 1.

Art. I, § 10, cl. 1: Art. VI, paras. 1, 5; Art. IX, para. 4.

Art. I, § 10, cl. 2: Art. VI, para. 3.

Art. I, § 10, cl. 3: Art. VI, paras. 2, 4, 5.

Art. II, § 1, cl. 1: Art. IX, para. 5; Art. X.

Art. II, § 1, cl. 2: Art. IX, para. 5.

Art. II, § 1, cl. 3: Art. IX, para. 5.

Art. II, § 1, cl. 4: No comparable provision.

Art. II, § 1, cl. 5: No comparable provision.

Art. II, § 1, cl. 6: No comparable provision.

Art. II, § 1, cl. 7: No comparable provision.

Art. II, § 1, cl. 8: No comparable provision.

Art. II, § 2, cl. 1: Art. IX, para. 6.

Art. II, § 2, cl. 2: Art. IX, paras. 1, 4.

Art. II, § 2, cl. 3: Art. X.

Art. II, § 3: No comparable provision.

Art. III, § 1: No comparable provision.

Art. III, § 2, cl. 1: Art. IX, paras. 1, 2.

Art. III, § 2, cl. 2: Art. IX, para. 2.

Art. III, § 2, cl. 3: No comparable provision.

Art. III, § 3, cl. 1: No comparable provision.

Art. III, § 3, cl. 2: No comparable provision.

Art. IV, § 1: Art. IV, para. 3.

Art. IV, § 2, cl. 1: Art. IV, para. 1.

Art. IV, § 2, cl. 2: Art. IV, paras. 1, 2.

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450 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:397

Art. IV, § 2, cl. 3: Art. IV, para. 1.

Art. IV, § 3, cl. 1: Art. XI.

Art. IV, § 3, cl. 2: Art. IX, para. 2.

Art. IV, § 4: No comparable provision.

Art. V: Art. XIII, para. 1.

Art. VI, cl. 1: Art. XII.

Art. VI, cl. 2: Art. XIII, para. 1.

Art. VI, cl. 3: No comparable provision.

Art. VII: Art. XIII, para. 2.

Amend. I: No comparable provision.

Amend. II: Art. VI, para. 3.

Amend. III: No comparable provision.

Amend. IV: No comparable provision.

Amend. V: No comparable provision.

Amend. VI: No comparable provision.

Amend. VII: No comparable provision.

Amend. VIII: No comparable provision.

Amend. IX: No comparable provision.

Amend. X: Art. II.

Amend. XI: No comparable provision.

Amend. XII: Art. IX, para. 5.