Ending Government Under the Articles

We seldom think of the 1787 Constitution of the United States (COTUS) as an accomplishment achieved under the Articles of Confederation. Since the COTUS replaced the Articles, it seems more a symbol of their inadequacy.

And yet, without support from the Articles of Confederation Congress, the COTUS convention almost certainly would not have met, or if it had met would likely have failed. What circumstances led the Confederation Congress to support its own demise?

constitutional convention

Attempts to revise the Articles had begun even before they were ratified. When the Articles were drafted (1777), the national debt was small; by the time they were ratified (1781), it was large (see Finances). Congress twice attempted to grant itself the power to impose tariffs to raise money to fund the debt (see The Imposts of 1781 and 1783). Both attempts foundered on the requirement for unanimous ratification by the 13 state legislatures.

As the 1780’s progressed, mercantile interests also became dissatisfied with the failure of the Confederation to protect American commerce, especially with Great Britain. The British had made peace with the United States, but (1783) closed their remaining colonies (Canada and the Caribbean) to American ships and to most American exports. Congress lacked the power under the Articles to retaliate, and was unable to agree on an amendment that might grant itself the power.

The legislature of mercantile Massachusetts, stung especially hard by the British restrictions, therefore moved (July 1785) to bypass Congress, suggesting an outside convention. They resolved that it was “highly expedient, if not indispensably necessary, that there should be a Convention of Delegates from all the States in the Union at some convenient place, as soon as may be, for the sole purpose of revising the Confederation and reporting to Congress how far it may be necessary to alter or enlarge the same”.

Why a convention? The proposal had precedent within Massachusetts itself. In 1778, the legislature had attempted to revise the Massachusetts colonial charter, which had become obsolete with independence. They submitted their work to the state’s voters, who rejected it. The chastened legislature then called the first special-purpose constitutional convention in American history—perhaps in world history—and it succeeded where the legislature had failed. It rewrote the Massachusetts Constitution in 1780, and this time voters approved the result.

Constitutional conventions, having no other responsibilities, could devote full time to constitutional revision. And, they avoided the inherent conflict of interest when a legislature, via a constitution, defined its own powers. New Hampshire followed suit with a similar convention in 1783.

The Massachusetts proposal for a federal convention did not gain immediate traction. But, neither did it die. The next year (September 1786), delegates from five states assembled in Annapolis, Maryland, again discussing commercial problems. They recommended that all 13 state legislatures elect delegates to a constitutional convention to meet at Philadelphia the next May. By now, the time was ripe. The states, led by Virginia, began to elect delegates.

The Annapolis conventioneers also sent a copy of their recommendation to Congress. Congress hesitated to react. But, the state of New York forced its hand. New York would send delegates to Philadelphia, but only if Congress would endorse the convention. Without New York, the convention would likely be stillborn. Congress rose to the bait.

On February 21, 1787, Congress resolved that it would indeed be “expedient” for states to send delegates to the convention, but that the convention should meet for “the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed by Congress and confirmed by the States render the federal constitution adequate to the exigencies of government and the preservation of the Union”.

This was a lukewarm endorsement, but an endorsement nonetheless. It was enough. James Madison reported that many members "considered this resolution as a deadly blow to the existing confederation".

Every state except Rhode Island eventually elected delegates to the Constitutional Convention. The convention sat in Philadelphia from May through September 1787. Ten sitting members of Congress, including James Madison, did double duty as convention delegates. Thirty other delegates were former members; only 15 had never sat in Congress at all.

Congress continued to meet in New York. Of course, the sitting members couldn’t be in two places at once, so their absence exacerbated the chronic attendance problems in Congress.

The Convention eventually proposed to scrap the Articles entirely and replace them with the Constitution of the United States (COTUS), and to bypass the state legislatures for ratification. Instead, the Convention asked Congress to ask the states to call ratification conventions. To avoid foundering for lack of unanimity, ratification by as few as nine conventions would be sufficient for the “establishment” of the COTUS “between the States so ratifying the same”.

Would Congress comply? When the Convention adjourned, most of the ten double members returned to Congress, and naturally endorsed their own work. The February stipulation that the Convention only "revise" the Articles was quietly forgotten. On September 28, Congress passed a bare-bones resolution: “Congress having received the report of the Convention lately assembled in Philadelphia, Resolved Unanimously, that the said Report with the resolutions and letter accompanying the same be transmitted to the several legislatures in Order to be submitted to a convention of Delegates chosen in each State by the people thereof in conformity to the resolves of the Convention made and provided in that case.”

Congressman Edward Carrington (VA) wrote that some members wanted to make a firmer endorsement, but it would not have been unanimous, and Congress decided that unanimity was preferable to enthusiasm.

Twelve state legislatures called ratification conventions in 1787-88 (Rhode Island refused), and eleven of the conventions ratified the COTUS. (North Carolina voted it down.) This exceeded the nine-state threshold. Congress thereupon had some final responsibilities, assigned to it by the COTUS convention itself: “to fix a Day on which Electors should be appointed . . . , and a Day on which the Electors should assemble to vote for the President, and the Time and Place for commencing Proceedings under this Constitution.” The states would schedule their own House and Senate elections.

The timing was not controversial. Congress set the choice of electors for January 7, the electoral vote for February 4, and the transition to the new Constitution for March 4, 1789.

The “Place” was another matter. The new government would have money and patronage, and landing it, even temporarily, would be a plum. Delaware proposed Wilmington; Pennsylvania offered Lancaster. On September 13, Congress chose the path of least resistance and voted for the government to continue in New York.

The Confederation Congress mustered a quorum for the last time on October 10, 1788. Individual delegates showed up from time to time, and presented their credentials to the secretary, until March 2, 1789, but Congress never again conducted business.

As the Articles had begun with fireworks, so they ended with cannonade. At sunset on March 3, 1789, thirteen cannon were fired from Fort George in lower Manhattan as a salute to the expiring Articles of Confederation.

There was one last postscript. The Rhode Island legislature, obstinate to the end, and rejecting the COTUS, elected four delegates to the no longer existent Confederation Congress on May 6, 1789. There is no record that they ever did anything.

Sources: Edmund Cody Burnett, The Continental Congress, 1941; Journals of the Continental Congress, Volumes 32, 33, and 34; George William Van Cleve, We Have Not a Government: The Articles of Confederation and the Road to the Constitution, 2017; Samuel Eliot Morison, A History of the Constitution of Massachusetts, 1917; Fergus M. Bordewich, The First Congress, 2016; Letters of Delegates to Congress, Volumes 24 and 25, Dates of Service in Volume 26