The Articles of Confederation was our first constitution. Although it was abandoned in favor of the Constitution because of its defects, it contained principles which the vast majority of Americans wanted in the Constitution. When enough Americans and their statesmen saw that the defects of the Constitution would or could be used to usurp authority and powers from the state governments and create a centralized government which would violate these principles, Americans added what became the Tenth Amendment to the Constitution to protect these principles.
The Articles of Confederation was framed during the early years of our struggle for independence. On June 12, 1776, even before the signing of the Declaration of Independence, the Continental Congress appointed a committee (one man from each colony) to draft a plan of confederation. From July through mid-November Congress debated the draft and greatly revised the Articles. The major issues in the debates in Congress were the representation of the states in Congress; the basis of taxation of the states; and the control of the western lands claimed by various states. The fundamental issue, however, was whether “sovereignty” (ultimate human political authority) would be located in the central government (Congress, for the Articles had neither an executive nor a judicial branch) or in each state government.
The debates in Congress decided that “sovereignty” would remain in the state governments—not the central or national government.
In mid-November of 1777 Congress finally sent the final version of the Articles of Confederation to the states for consideration. However, the Articles were not ratified by all the states until March 1, 1781—three years and four months later.
Ratification took so long because many people feared that the central government proposed by the Articles, Congress, would have or usurp too much power. They worried about taxation of the states. They noted a division of interests between the Northern and Southern states, and Southerners argued that the sovereignty of their states would be destroyed by the Northern states.
Southerners were also concerned about the apportionment of troops among the states—and between the Northern and Southern states. Southerners and Northerners said the Articles gave Congress too much authority over the “sovereignty” of the states; and that there was a danger of “loose construction” (changing the intended meaning) of the Articles’ terms by future Congresses.
The Articles’ form of government was, strangely enough, a confederacy: a union of states for mutual support or action. Article III said that “The said states hereby severally enter into a firm league of friendship…for their common defence, the security of their Liberties, and their mutual and general welfare, 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.”
Most of the authority and power in the civil government was in each state government. Each state retained its sovereignty and every power not expressly delegated to the central government. The central government (Congress) had only those powers which were expressly delegated to it by the states. Article II said, “Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” The central government was weak in comparison to the state governments.
The states were fairly well protected in the Articles’ government. Each state had from two to seven representatives in Congress, but had only one vote. Nine states out of thirteen had to agree in order to pass a law. Article V gave the state legislatures a check against the central government by requiring that the delegates of the states to Congress be chosen in a way determined by each respective state legislature. Each state could also recall any or all of its delegates, and replace him or them for the rest of the year: a further check of the state legislature on Congress. Article XIII, moreover, gave each state legislature a veto on any proposed change in the Articles by requiring the agreement of every state’s legislature to any proposed change.
The principles of the Articles which the overwhelming majority of Americans insisted on protecting by an amendment were: the right of the American people to be many at the same time they were one; the right of the people of each state to maintain their own corporate ways; the authority of each state’s people and their state government over their own internal affairs; and the protection of individual liberty against centralized government and its virtually inevitable tyranny. The protection of individual liberty and the right of each state maintain its own corporate identity was to be achieved by protecting the right of each state to govern its own internal affairs.
The Articles of Confederation was replaced by the Constitution because its central government was too weak. It had no power to tax; the most it could do was request money from the states. It did not have enough power over foreign commerce and had no power over interstate commerce. It had no power to raise an army; all it could do was request troops from the states. It had no executive—law-enforcing—branch of government. It had no judicial branch of government, so it had no means of settling disputes over national laws. Its requirements made the enactment of laws too difficult. And the Articles were too hard to amend.
Though these defects were remedied in the Constitution, Americans’ dedication to the right of each state to govern its own internal affairs and to the protection of individual liberty by protecting states’ rights against centralization of power in the national government led the framers of the Constitution to exercise great care in designing the structure, powers, and limits of the new governmental system established by the Constitution. These principles also mandated that federalism—the separation of powers between the central government and the states’ governments, with constitutional means by which the states can check against central government injustice and tyranny—would be fundamental to the Constitution.
Yet the Constitution had its own defects, as the Anti-Federalists’ criticisms made clear. Concern about the consequences of these defects—usurpation of power from the states; centralization of power in the national government; concentration of power in Congress, the President, and/or the Supreme Court; and unjust, even tyrannical rule by the central government—led to insistence on the addition of a bill of rights to the Constitution. And concern for the preservation of federalism—and of the states’ authority over their own internal affairs, and of liberty—ensured that what became the Tenth Amendment must be an integral part of the Bill of Rights: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Article posted May 13, 2009