Looking back at America’s forgotten first constitution

Today marks the 236th anniversary of America’s “other” constitution. But how many of us know when it was created and how and why it was adopted?

Americans are very familiar with the Declaration of Independence: drafted in Philadelphia and signed at Independence Hall in 1776. We celebrate it every year on July 4. We remember ringing quotes such as “When in the course of human events…” and “We hold these truths to be self-evident, that all men are created equal.”

Americans are also very familiar with our current Constitution, also drafted and signed in Philadelphia, and later ratified over the next two years. Who among us can forget the first three words of the Preamble, “We the people…”

But what about America’s first constitution? Many of us forget there are three founding documents in America’s early history. The oft-forgotten one is the Articles of Confederation.

How many of us know when “first constitution” was created and how and why it was adopted? Did it play a role in the adoption of America’s “second” Constitution? Why don’t we cherish it with the same reverence as the Declaration and present Constitution? Here’s an overview of this important document.

Although the Articles of Confederation weren’t drafted until 1776, the document’s story begins, perhaps, with a convention called among the British North American colonies at Albany, New York, in 1754. At that time the French in Canada, together with their Indian allies, had been raiding the colonies, and a call when out for a meeting in Albany.

Ben Franklin attended and presented his Albany Plan of Union, which called for the formation of a Grand Council of the colonies in order to form a “common defense” (a phrase which appears later in the present Constitution’s Preamble). Franklin’s proposal was rejected primarily because the individual colonies did not want to surrender any of their sovereignty. Nevertheless, it was a first attempt to have the colonies work together, and it provided a foundation for the drafting of the Articles.

Fast forward to 1776. At the same time that the Continental Congress was appointing a committee to draft what would become the Declaration of Independence, they were also making their first attempt at creating a document what would unite—albeit very loosely—the states into a government. Their primary aim was to gain support and lend legitimacy to their cause of independence. The result was the Articles of Confederation.

The Articles were adopted on November 15, 1777 and sent to the states for approval two days later. They went into effect on March 1, 1781, when Maryland finally ratified them.

But the Articles, it turned out, had numerous weaknesses:

  • There was no executive branch.
  • There were no federal courts.
  • The document was difficult (if not impossible) to amend.
  • The government was unable to effectively collect taxes.
  • Because of the tax issues, it was difficult to fund the central government, including the armed forces.
  • There was no proportional representation on Congress.
  • It did not effectively deal with interstate commerce.

By the mid-1780s, America under the Articles was in trouble.

Diplomatically, it owed substantial debts to France and the Netherlands as a result of their support during the Revolutionary War. America was unable to effectively collect taxes through the states and as a result had difficulty paying  debts. The lack of effective tax collection also impacted the funding of the federal government, particularly the armed forces.

Economically, the failure to repay national debts caused potential commercial, private lenders in Europe and elsewhere to question whether merchants would repay their indebtedness.

Also, individual states charged tariffs and fees for goods being brought into their borders. This slowed the rapid development of interstate commerce.

Politically, the states with large populations—Massachusetts, Pennsylvania and Virginia—felt that the Articles’ one state/one vote rule resulted in their being under-represented. In addition, requiring unanimous consent to amend the Articles “froze the Articles in time.” Further, the length of time it took to ratify the Articles, demonstrated the need to have something less than unanimity.

It’s important to remember that the Articles of Confederation were the result of the time–the weak national government the Articles set up clearly reflected the people’s distrust of centralized authority, stemming from their experience with a certain monarch, and their desire to retain state sovereignty.

Because of the diplomatic, economic, and political challenges America faced, a consensus formed that something had to be done. The result was a call for a convention in Philadelphia beginning in May 1787.

But the objective was not to draft a new constitution–it was simply to amend the Articles. However, after some debate, the delegates concluded that the problems with the Articles were too fundamental to be resolved by amendments. The result was a new Constitution.

The Articles remained in effect until June 21, 1788, when the Constitution was officially ratified.

When the Constitution was completed, it was a very different document from the Articles of Confederation. Here are the major differences:

Articles of Confederation
Legislative Branch Unicameral; called “Congress” Bicameral; a Senate and a House of Representatives
Members of Congress Two to seven representatives per state Two senators per state; representatives based o each state’s population
Voting in Congress One vote per state One vote for each senator/representative
Term of office One year Six years for senators; two years for representatives
Term limits No more than three years in six years None
Executive branch None President
Adjudicate of disputes Legislature Courts
Taxing authority Apportioned by Congress but collected by states (“voluntary contributions”) Laid by Congress and collected by federal government
Amendments Required unanimous consent of all states Requires approval by two-thirds of Congress and three-fourths of states
Ratification Required unanimous consent of all states Required ratification by 9 of the existing 13 states

While to this day we argue over issues, it’s generally agreed the delegates succeeded in their creation of the Constitution. And perhaps that’s why we tend not to remember or revere the Articles of Confederation—it’s easy to write it off as merely a predecessor to the Constitution.

But, we should not forget that three documents reflect our early history, and that we have learned and grown from each of them. And the one that connects the Declaration of Independence and the Constitution was the Articles of Confederation.

Donald Applestein is a retired attorney and an experience guide in the National Constitution Center’s Public Programs Department.