America Had a Government before the Constitution

If you are looking to imbibe the wisdom of America’s founding, keep in mind that this country has had a more expansive constitutional order than the written Constitution alone, and the Articles have been a significant part of that.

Americans have started paying more attention to the Constitution in recent times, in part to see what wisdom it might hold, and also to better understand what constraints might bind our current executive branch. I thought I would take this historical interest one step further and read the original Articles of Confederation, the foundational document for American government from 1781 to 1789.

The Articles have been much maligned since the inception of the subsequent Constitution, but most of the material in them remains relevant and also insightful. For instance, although there are only 13 Articles, the lead part of Article VI is a version of the emoluments clause, about American officeholders not accepting “any present, emolument, office or title of any kind whatever from any King, Prince or foreign State…” That was truly important to our Founding Fathers.

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. 

In reality, that system didn’t work out, though that may have had as much to do with immature institutions as with the defects of the Articles as a formal document. The same can be said for the frequent failures of the state delegations to attend to their congressional responsibilities, another recurring problem under the Articles.

If you are looking to imbibe the wisdom of America’s founding, keep in mind that this country has had a more expansive constitutional order than the written Constitution alone, and the Articles have been a significant part of that.