America Had a Government Before the Constitution

Wednesday, March 22nd, 2017

America had a government before the Constitution, Tyler Cowen reminds us, as he discusses the original Articles of Confederation, the foundational document for American government from 1781 to 1789:

It is noteworthy just how weak the office of the president is in the Articles. There is a presiding council drawn from state congressional delegate-nominated members, and the president leads this council. But he is not allowed to serve any more than one year out of three. In some regards this resembles the current system of Switzerland, and it really does check executive power.

The legislature is set up to have only one house, with equal representation for all states and term limits on delegates (each state gets one vote but two to seven delegates). While I wouldn’t opt for such a system today, in an era plagued by gridlock, gerrymandering and out-of-touch professional politicians, I can’t say it sounds crazy.

More worrisome is that the Articles themselves can’t be changed without the unanimous approval of the states. Overall, it is striking how much today’s European Union resembles some features of this system. The Articles worked out in America because they were born into chaos and later able to evolve into a stronger federal government without requiring actual unanimity. It is hard to imagine contemporary Europe traversing the same route, since the continent has some quite settled national governments. They are now reasserting their powers and reversing governance at the pan-national level.

But I would say that the Articles, for all their formal flaws, are badly underrated. They are a brilliant construction for a power vacuum, given that the relevant parties in the 1780s couldn’t agree on very much, but nonetheless needed some path forward.

In other words, think of the Articles as an early business plan or charter for a startup. The point isn’t to get everyone’s roles and responsibilities right on first crack, but rather to make sure that the institution survives and that continued growth is possible.

By this metric, the Articles were an unprecedented success. Keep in mind that many European thinkers of the time thought that America was hopelessly disunited and that its system of government was due to collapse. The Articles proved them wrong by serving as a bridge from the Revolution to the later development of America as a fully fledged nation.

It is sometimes forgotten just how fruitful the Articles period was for laying the foundations for the further growth of the country. A system of relatively egalitarian and transferable property rights was codified for the settlement of external lands. Most importantly, the Northwest Ordinance of 1787 determined that future settlements could be incorporated into the country as states rather than subordinate territories or colonies. The independence and sovereignty of the initial founding states allowed them to support such policies, without fearing much dilution of their power or influence.

These decisions were part of a broader constitutional order for the United States, and that broader order was very much one of dynamic growth (Article XI welcomes Quebec to the United States, should it wish to join). It is a common criticism of the Articles that they didn’t allow for the effective funding of the federal government. But Article VIII lays out clearly that the states have a responsibility to send money to Congress, and it even specifies the relevant formula, namely proportionality to land value.

I remember being taught that the Articles denied Congress any powers of taxation; it could only request money from the states. That distinction seems subtle, when the states have unanimously agreed to Article VIII:

All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted 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.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.

I didn’t realize the original plan was for the “federal” government to “tax” the states based on land value. I would suggest giving each state votes proportional to its tax contribution.


  1. Bob Sykes says:

    The Articles were a quintessential States’ Rights document. Cowan might not want the Articles back, but I do. The strongly centralist regime we have now is clearly trending toward a totalitarian socialist dictatorship, and the trend might give us a second Civil War. The first Civil War would not have occurred if the Articles were still in force in 1860.

  2. L. C. Rees says:

    “the original plan was for the “federal” government to “tax” the states based on land value. I would suggest giving each state votes proportional to its tax contribution”

    The Northern states were wealth poor and people rich while the Southern states were wealth rich and people poor. Neither wanted to pay more than it had to. The 3/5ths compromise, equal representation in the Senate, and the apportionment of direct or property taxes drew on pre-Convention proposals to attempt to balance the competing demands. Only two Federal property taxes were enacted in 1798 and 1814-1816 where apportionment came into play. The 3/5ths compromise gave the South more political clout than otherwise but not as much as they gained in the post-Civil War period when former slaves were counted as full individuals yet disenfranchised by Jim Crow measures. The South would have had more clout in the period 1865-1965 except if it wasn’t a solid Democratic lock.

  3. Bruce says:

    “The first Civil War would not have occurred if the Articles were in force in 1860.”

    No, because New England would have seceded in the War of 1812, and the disunited States would have been gobbled up by the British by the 1820s. Maybe Greater Kaintuck still hanging on through the 1860s, harassing Victoria’s Railroad from New Orleans to Santa Fe to Los Angeles.

  4. “No, because New England would have seceded in the War of 1812″

    The war of 1812 would not have happened under the Articles.

    There may have been other wars, maybe not.

    The Articles were far less a document for national aggrandizement than the Constitution.

  5. Bruce says:

    I don’t see how the Articles would have stopped the British Navy from impressing US sailors or the US from wanting to invade Canada.

    Maybe a loose confederated USA would have gone straight to privateering against the English. According to Fletcher Pratt it was US privateers trashing the British merchant marine that convinced the Brits to call off the war when they were winning by all other standards.

    And it was mostly the South that wanted to conquer Canada. A looser confederation might have prevented either the South’s patriotic bloodlust or the northern states from allowing the Tennessee militia anywhere near civilization.

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