America's First Constitution - Part One

When we’re talking about the major documents of the American Revolutionary era, we often allow our attention to slide from the Declaration of Independence in 1776 to the convention which wrote the Constitution in 1787 as though there were no stopping-point in between, except maybe the Treaty of Paris that ended the Revolutionary War in 1783. Give that one more thought and we realize that of course there were a number of other stopping-points along the way between 1776 and the Constitutional Convention – the French alliance, the Jay-Gardoqui Treaty of 1786, the original Northwest Ordinance of 1785. After all, there was a revolutionary war to win, and during the year following the adoption of the Declaration, the British Army looked to be in a good way toward making the Declaration look like a mere philosophical flourish. But just as important was the often-neglected fact that we adopted a governing instrument for the United States at almost exactly the midpoint between the Declaration and the Constitution. It was known as the Articles of Confederation – and there are some good reasons why we have preferred to forget that it ever existed.

The original motion for independence placed before the Continental Congress on June 7, 1776, by Richard Henry Lee – That these United Colonies are, and of right ought to be, free and independent States – also contained requirements that Congress take the most effectual measures for forming foreign Alliances and ensure that a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.

These two additional resolves were not unconnected. The newly independent American states were going to require large-scale borrowing and purchasing from abroad, with the likeliest source being the kingdom of France. But the French would not commit themselves to anything that resembled an open alliance with the Congress until they were satisfied that the former colonies were going to create an effective common government which would justify the risks of French lending and French cooperation. The newly independent states sent delegates to the Congress; that did not necessarily mean that they recognized it as a sovereign body. Congress had no authority to tax the states or the American people, and so the only means it had for paying its bills was to borrow abroad or print promissory notes, paper currency, and quartermaster’s certificates in the pious hope that at some future point, those obligations could be funded, somehow.

For the moment, Congress would send a diplomatic team, headed by Benjamin Franklin as the best-known American of the day, to Paris. But the real foundation for French intervention in the war would have to be laid in Congress, and through the creation of a common authority that could be relied upon to pay its bills and not to suffer defections back to British authority.

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The French were not just being uncooperative. To any uninvolved bystander in 1776, independence looked like it might be an invitation to havoc rather than harmony. To start with, the various provincial conventions which had spring up in many of the resisting colonies had already passed individual calls for independence, and in several cases, individual colonies proceeded to behave as though they had declared independence from each other as well as from Britain. Connecticut, for instance, claimed that, on the basis of its old colonial charter, its boundaries really ran all the way across the north American continent, and right through land long claimed by New York and by Pennsylvania. (This dispute would carry on until 1799). Maryland made claims on Virginia, Virginia and Pennsylvania quarreled over who had rights to the Ohio River valley. And while George Washington and the Continental Army were fighting for survival, Virginia dispatched militiamen under George Rogers Clark to the distant Illinois country, ostensibly to attack British outposts at Kaskaskia and Vincennes, but in reality to stake claims before Pennsylvania could act.

There was also an internal political incentive for the newly independent states to drag their heels about “a plan of confederation.” Much of the original movement for independence had come from the most demanding and edgy segments of colonial politics. At that point, joint action against the British – in the form of boycotts and military organization – required cooperation simply to be effective. But once independence became a fact, these were precisely the players who lost all enthusiasm for a “confederation,” since they had not thrown off one centralized government in London only to replace it with another located in Philadelphia. Connecticut and Virginia did not look on their contests over property claims as trespasses, but as guarantees of their future survival and prosperity, and they desired no loftier agency who might act to restrain them. By a similar transformation, the cautious and halting souls in Congress who had been the most dubious about independence now turned to embracing a plan of union, if only to keep their erstwhile fellow Americans from running amok.

So, from 1776 until 1781, the formation of a “confederation” became the desideratum of those who had been the least enthusiastic for independence, and vice versa.

At first, Congress appeared to be remarkably in earnest about the confederation resolution. A committee of thirteen was formed to draft a union proposal on June 12, 1776, even before the Declaration of Independence was adopted. The chair of the committee was John Dickinson, the respected author of the Letters from a Farmer in Pennsylvania, and he set to work with a will.1 The committee produced a draft set of “articles of confederation” in exactly one month, and its twenty articles were aimed pretty plainly at refashioning Congress into a national government with exclusive and sovereign powers over the states. There was no attempt to confect a monarchy – that is the most obvious fact of the American Revolution, but precisely because it is so obvious, it’s also the one which in 1776 was the most remarkable. The new nation would be a republic, and the largest one since the days of republican Rome. Not only was there no king, but there was no executive or president, only a “Council of State … for managing the general Affairs of the United States” while Congress was not in session. Congress would be awarded the “sole and exclusive Right and Power of determining on Peace and War … Settling all Disputes and Differences … concerning Boundaries, Jurisdictions, or any other Cause whatever – Coining Money and regulating the Value thereof … Establishing and regulating Post-Offices … Appointing General Officers of the Land Forces in the Service of the United States,” provided, as a sop to state anxieties, that “the Delegates of nine Colonies freely assent to the same.”2

But the states now found new anxieties. Dickinson’s Articles were bitterly resisted by Southerners like South Carolina’s Edward Rutledge, who was convinced Dickinson’s “Idea” would lead to “destroying all Provincial Distinctions and making every thing of the most minute kind bend to what they call the good of the whole.” Dickinson’s draft provided that each state would cast only one vote in Congress, but this angered delegates from Pennsylvania, who regarded being placed on an equal footing with small states like Rhode Island or Delaware to be “iniquitous.”3 The “council of state” became a “committee of the states.” From there, the questioning only became more intense through the month of July. By then, Dickinson had resigned from Congress, and after another month of debate passed, Congress itself had other problems to consider as British victories around New York loomed over them. The stage had now been set for five long years of quarrels during which, as one Virginia representative would eventually complain, “The truth is, we have not a government to Wield and Correct.”4

Read Part Two