The primary topic of discussion for the Second Continental Congress was whether or not the Colonies should support Boston and join in their rebellion against the Crown. So it almost seems inevitable that when Richard Henry Lee introduced his resolution suggesting a complete and irrevocable dissolution of the ties which bound the Colonies to England that a committee was formed to draft a declaration of independency. Yet there is more to Lee’s resolution than simply declaring that the Colonies “are, and of right ought to be, free and independent States.”
You have to realize, that at this moment in time the Colonies, although subject to the jurisdiction and authority of the Crown, were essentially independent from each other. Lee’s resolution also called for them to join together loosely in a confederation for their mutual benefit. The result of this suggestion was the Articles of Confederation; our nation’s first Constitution.
This wasn’t the first time such a suggestion was made; so the delegates were not absolutely certain that any proposal for a confederation would be accepted by the legislatures of each Colony.
Twenty two years earlier, Dr Benjamin Franklin proposed the Albany Plan which would have established a confederation of the Colonies during the French and Indian Wars. The plan was soundly rejected by all Colonies, so it was not certain that things would go any differently this time either.
Nonetheless, on June 12, 1776, the day after a committee was chosen to draft our Declaration of Independence, another committee, this time consisting of 13 individuals, was chosen to draft a document outlining the proposed confederacy. This committee met for a month, and on July 12 presented their completed document to the Congress. It was then debated and amended over the course of another year, until in 1777 the finished document was approved and forwarded to the States for their consideration.
Virginia was the first State to ratify these Articles of Confederation, doing so on December 16, 1777, and Maryland was the last to do so, agreeing to them on February 2. 1781.
I think now would be a good time to bring up the subject of true sovereignty. Sovereignty is defined as the absolute or supreme political authority in a nation or state. Although it does not directly come out and say so, our Declaration of Independence declares that this sovereignty is held by the people, “…Governments are instituted among Men, deriving their just powers from the consent of the governed…”
When it was proposed that this confederation be formed, most Colonies had already written, or were in the process of writing their own Constitutions to establish governments to represent the citizens of each Colony. After all, that is all that a constitution is; the act of a people constituting a form of government; declaring the shape it will take, the powers it will exercise on behalf of those it represents, and any limitations that might be imposed upon it.
This principle is so vitally important for you to understand, so I wish to discuss it a bit further. I have used the word delegate numerous times so far in my writings, but I am not sure if you truly understand what it implies. To delegate is to give another power to act on your behalf. A power of attorney is a form of delegated power; it can be general, or it can be very specific; depending upon what powers you want that delegate to exercise on your behalf.
The delegates to the Continental Congress were acting on the authority of the States they represented; they could not agree to anything without that authority having been expressly granted them by the States which chose them. Today people call those they elect politicians, when the correct term would be representatives, or delegates to the government established by the people in 1789. Any system of government based upon the idea that all political power is ultimately held by the people is a system in which the power to enact law is a delegated authority; and not to be exercised beyond the specific limits for which it was originally delegated.
Therefore, as the people had already delegated the authority to govern on their behalf’s to State governments, the delegates to the Continental Congress could not unilaterally decide that the States must submit to becoming members of a Confederation; that choice must be made by the representatives of the citizens of each State. And as each State was extremely reluctant to agree to anything which would weaken its authority, it was not without some doubt that any proposal for a Confederation might not be approved unanimously.
We do not have a confederation today, so it is highly unlikely that most people know what one is. One definition; the one which I prefer to use, states that a confederation consists of “…a number of full sovereign states linked together for the maintenance of their external and internal independence by a recognised international treaty into a union with organs of its own, which are vested with a certain power over the member ‘states’, but not over the citizens of these states.”
Under a confederation, the government established by whatever document creates the confederation can only pass laws that directly affect the States as entities. The government of the confederation cannot pass laws that say the people must do this, or refrain from doing that; it can only direct the laws it enacts upon the legislatures of the States.
Think of a confederation as a large scale version of a Neighborhood Watch program in which homeowners unite together to pass ordinances which protect their neighborhood. The individuals within that neighborhood are still free to govern the internal workings, or politics, of their home which the Neighborhood Watch protects them from crime and other dangers.
You have to remember, all power, particularly political power, is inherent in the people. The people had already established governments for their States to govern the affairs of these States. For a confederated government to have any power and authority, it must be delegated to them. In other words, the States must accept that they relinquish certain powers and hand those powers over to the government of the confederation.
The ratified Articles of Confederation were our nation’s first constitution; as they established our first centralized government. Up until that point, each State had been an entirely independent and self-governing entity. So forming a confederacy was a big deal back then; it was not something that was done hastily and without a great deal of thought on the part of the individual States.
Now would be a good time to plant a seed for future discussion. Why is it that it took 4 years, in the midst of war against England, for the States to ratify the Articles of Confederation, yet it took only a year to ratify the Constitution once it was sent to the States for their consideration?
Although it did take 4 years to ratify the Articles of Confederation, the Congress established by that document acted as the de facto government of the United States throughout its war with England. It only became the de jure government when the Articles of Confederation were finally ratified by Maryland in 1781.
As our nation’s first constitution, The Articles of Confederation bears a certain amount of study to see what it says. For one thing, there was no Executive, nor was there any Judiciary; just a Congress representing the States. Secondly, the powers reserved to the States were extensive and those granted to the Congress were few, and expressly delegated. But more importantly, any law passed by the Congress had to be confirmed, or accepted by the Legislatures of all 13 States before it could go into effect.
The Articles of Confederation were written in such a way as to ensure the sovereignty and independence of each State; only granting Congress the necessary powers to manage the general affairs of the nation.
Yet all this was done in a time of grave emergency; the ongoing war for independence. A war which I will discuss in Part 6 of this ongoing series…