Season 4, Episode 3 | How Do You Govern When You’re Also Fighting a War?

When we talk about America's founding, we tend to jump straight from the Declaration of Independence to the Constitution. But what held the country together in the eleven years between? What happened after independence was declared? Who ran the war? Who paid for the army? And how did thirteen quarreling states manage to hold together long enough to win?

In this episode, co-hosts Savannah Eccles Johnston and Matthew Brogdon dive into the much-maligned Articles of Confederation, the nation’s first written constitution. They ask whether the Articles deserve their bad reputation, or whether they were actually a surprisingly effective revolutionary government. Topics include the tension between “perpetual union” and state sovereignty, the five-year ratification battle over western lands, the complete absence of an executive or judiciary, and how George Washington’s personal restraint prevented a military coup.

The episode also explores the Articles’ genuine successes: the Northwest Ordinance, which governed slavery in the territories for 70 years, the creation of ad hoc executive departments run by people like Robert Morris, and the lessons that shaped the 1787 Constitution. Along the way, Johnston and Brogdon debate the European Union as a modern analogy, mourn the death of geography education, and ask whether a government that can’t tax but can win a war deserves more credit than it gets.

Tune in to learn why the Articles of Confederation, clunky, slow, and underpowered, might just be the most underrated constitution in American history.

In This Episode

• (00:00) Introduction
• (01:02) What problem were the Articles designed to solve?
• (02:08) Drafting the Articles of Confederation
• (03:44) Was America building a nation or a league of states?
• (04:15) “Perpetual union” versus state sovereignty
• (05:24) Why federalism was still an unfinished idea
• (06:23) Building a government while fighting a war
• (07:12) Comparing the Articles to the European Union
• (09:02) The rise of an American identity distinct from Europe
• (10:42) The structure of the Confederation Congress
• (11:28) Why Congress struggled to function effectively
• (13:22) Why deliberative assemblies struggle during wartime
• (16:05) The dangers of having no executive branch
• (18:08) Committees, enforcement, and the limits of the Articles
• (19:02) How America still managed to win the Revolution
• (19:41) Why ratification took five years
• (20:22) Western land disputes and Maryland’s veto
• (21:02) Did the Declaration itself function as a constitution?
• (22:24) Sea-to-sea charters and the fight over western territories
• (24:03) Why geography matters in civic education
• (25:56) The Confederation Congress and Western Lands Policy
• (28:11) Fear of tyranny versus fear of ineffective government
• (28:35) Madison, factions, and the logic of federalism
• (31:19) Did the Articles accomplish their real purpose?
• (32:01) The Northwest Ordinance and territorial expansion
• (33:32) Why foreign affairs exposed the Articles’ weaknesses
• (34:04) “The plane did fly,”  reassessing the Articles
• (34:17) George Washington and civilian control of the military
• (35:53) How America avoided military dictatorship
• (37:04) The ad hoc executive departments of the Revolution
• (37:53) Final reflections on America’s first government  

Notable Quotes

• (01:02) "If you're going to win a war, you have to have a government. Armies don't equip themselves." — Matthew Brogdon
• (06:18) "They really are building the plane while flying it. They are engaged in the act of constructing these institutions in the middle of fighting a war." — Matthew Brogdon
• (12:41) "The Articles of Confederation treated things as though this was a league of sovereign states — and then it gives the confederation responsibilities that belong to a government, not just a diplomatic assembly." — Matthew Brogdon
• (18:01) "A government without an executive and a judicial power to carry the laws into execution is like a body without arms and legs to act and move." — Matthew Brogdon, quoting Madison
• (19:21) "It was a fairly effective revolutionary government, as revolutionary governments go. You can think of some really not successful ones." — Savannah Eccles Johnston
• (34:05) "Congress does build the plane while flying it, but the plane does fly — it's a bit of a clunker, but it got the job done." — Matthew Brogdon
• (35:50) "At least part of what allowed them to be successful was Washington's restraint." — Savannah Eccles Johnston
• (36:29) "Without people making the right choices, without people taking virtuous action, the best-laid structure is not going to save you from disaster or tyranny." — Matthew Brogdon
• (37:59) "They did the job they were supposed to do. They didn't dissolve into anarchy. They didn't become a tyranny — because of the civic virtue of George Washington." — Savannah Eccles Johnston

Resources and Links

This Constitution  

• Apple Podcast: https://podcasts.apple.com/us/podcast/this-constitution/id1771900485
• Spotify: https://open.spotify.com/show/0IQCq5DUPWlImiAdc4t3pf?si=85085b24b55b4130
• Website: https://www.uvu.edu/ccs/projects/this_constitution_podcast.html
• YouTube: https://www.youtube.com/@centerforconstitutionalstu8915/videos

Savannah Eccles Johnston

• linkedin.com/in/savannah-eccles-johnston-515a72198
• https://www.uvu.edu/ccs/people/savannah_eccles_johnston.html

Matthew Brogdon

• https://www.linkedin.com/in/matthew-brogdon-8a21bb89/
• https://www.uvu.edu/ccs/people/matthew_brogdon.html

Recommended Reading

• The Articles of Confederation: The First Constitution of the United States (primary source)
• Ratification by Pauline Maier
• The Quartet by Joseph J. Ellis

Transcript

Intro: 

[00:00:05 - 00:00:11]

We the people, do ordain and establish this Constitution. 

Savannah Eccles Johnston: 

[00:00:12 - 00:00:14]

Welcome to This Constitution. My name is Savannah Eccles Johnston.

Matthew Brogdon: 

[00:00:14 - 00:00:15]

And I'm Matthew Brogdon.

Savannah Eccles Johnston: 

[00:00:15 - 00:01:02]

Today we're going to talk about the Articles of Confederation. This will actually be the second of two episodes on the Articles of Confederation. But in this episode, we want to introduce the question of how do you govern in the middle of a revolution? Most revolutionary groups are not successful at governing in the middle of a revolution. So how do you govern the Articles of Confederation, our revolutionary government? So what does the structure and drafting of the Articles look like? And then why does ratification take forever? And then finally, how do we evaluate the Articles of Confederation? We tend to hate on them, but maybe do we give them too bad of a rap? Did they solve the problem they were designed to solve for us? So let's start with the big question. What problem were the Articles of Confederation designed to solve?

Matthew Brogdon: 

[00:01:02 - 00:02:08]

If you're going to win a war, you have to have a government. Armies don't equip themselves. And you did have a union. The states had a notion of an American union, something called the United States. The notion of United colonies or United States. A union of these separate political bodies is pervasive from 1774, right up until we get into the revolution, start fighting it. So if you've said there's a union and we're engaged in common cause, we have a continental army, right? George Washington is placed at the head of the continental army in 1775, a year before the Declaration of Independence. Well, what is this Continental Union? What is it embodied in? Who decides what it does? It's fighting a war. Who can make peace? It has an army. Who's going to raise funds to equip them? Who's going to decide on rules, presumably have an army. You have some rules to govern it. So these are all just crucial questions have to be answered. And it's imperative. You've got to provide a government to do it.

Savannah Eccles Johnston: 

[00:02:08 - 00:02:49]

Well, the answer is the Articles Confederation, which you start immediately after the Declaration is signed. You start drafting the articles in 1776. You have three committees that are set up in the immediate aftermath of the signing of the Declaration. And one of those committees, a committee of 12, is to draft the new form of government. And it's headed by John Dickinson, who is a very important and kind of forgotten character in American political history. He's going to be there at the Declaration. He'll help draft the Articles, and then he'll be there again at the Constitutional Convention. And he's also a Man of split state identity. He's a representative from Delaware, but also had been president of Pennsylvania and is called the gentleman farmer from Pennsylvania.

Matthew Brogdon: 

[00:02:50 - 00:03:04]

That's right. Pennsylvania claims ownership of Delaware. Delaware is not actually a separate colony for some time. That's a bit of a contested question. This is one of the reasons Delaware is the first state. They were the first state to ratify.

Savannah Eccles Johnston: 

[00:03:04 - 00:03:04]

They are.

Matthew Brogdon: 

[00:03:05 - 00:03:14]

And they ratify, like, instantly. And it was because if we ratify the Constitution, we're a state. Nobody can take it back. Right.

Savannah Eccles Johnston: 

[00:03:15 - 00:03:17]

But they'd also had representatives from Delaware.

Matthew Brogdon: 

[00:03:17 - 00:03:17]

Yes.

Savannah Eccles Johnston: 

[00:03:17 - 00:03:23]

Right. So you're right. It's a contested question. But they'd also been kind of treated as a separate voting entity for some time.

Matthew Brogdon: 

[00:03:23 - 00:03:27]

Well, and if you want to know more about Dickinson, our listeners have heard about Dickinson before.

Savannah Eccles Johnston: 

[00:03:28 - 00:03:28]

Right.

Matthew Brogdon: 

[00:03:28 - 00:03:44]

Because we had Jane Calvert on the podcast quite some time back. She's the foremost expert on him and giving us an account of why Dickinson is the penman of the Founding, she likes to call him. And one of the reasons is because of his role in drafting the Articles of Confederation.

Savannah Eccles Johnston: 

[00:03:44 - 00:04:15]

Right. It's kind of sad we've forgotten him. He also features prominently in the musical 1776 as kind of a heroic, slight villain to hero story. It's great. All right, so there are some big questions structurally in these Articles. And the first is, is this cooperation or is this consolidation? Were they building a nation or just coordinating a war effort among separate, independent republics? And, of course, it's called a firm league of friendship. So first, how are they defining the federal system here?

Matthew Brogdon: 

[00:04:15 - 00:04:43]

What does it look like? Well, remember the full title of the Articles of Confederation that comes out is Articles of Confederation and Perpetual Union among the United States of America. So there's this idea that union carries with it some kind of perpetuity. And you mentioned a firm league of friendship. So here we've got two principles in contest with each other. Is this friends who could have a falling out and break up. Right. We're together as long as that works, and then maybe not. Or is it perpetual.

Savannah Eccles Johnston: 

[00:04:44 - 00:04:44]

Right.

Matthew Brogdon: 

[00:04:44 - 00:05:09]

Perpetuity. So it introduces that huge ambiguity in American politics of whether there's a provision for an end of union in American politics, particularly if it just originates with one or a few states, as opposed to some sort of consensus among us all that, no, we need to go our separate ways. But that is planted. I mean, the sort of seed of that conflict is planted in the Articles of Confederation.

Savannah Eccles Johnston: 

[00:05:09 - 00:05:24]

Right. Well, we should also think about how they're thinking of federalism. You think of three separate layers: Parallel layers of government, local, state and national. But the ultimate authority resides with the states in the Articles. And that will change by 1787. Potentially.

Matthew Brogdon: 

[00:05:24 - 00:06:17]

Well, and they don't even have a good definition of the word federalism at this point. When they talk about federal or confederacy, there's a reason it says confederation because they're appealing to ancient confederacies. And there weren't a huge number of examples of them. Most of them had prevailed in ancient Greece and had come to bad ends for the most part. So there's not really a worked out idea of what the really innovative thing that Americans are going to do a decade later in building what we might call a compound republic, a compound federal system. This idea of the whole fleshed out thing, which at some point we can chat about, that's not worked out. If you ask somebody, what is federalism in 1776? Isn't that a thing the Greeks did? Is that, you know, I mean, so there's no textbook chapter explaining with diagrams how federalism works.

Savannah Eccles Johnston: 

[00:06:17 - 00:06:18]

Right.

Matthew Brogdon: 

[00:06:18 - 00:06:23]

So they really are building the plane while flying it. Like you almost. You can't emphasize that too much.

Savannah Eccles Johnston: 

[00:06:23 - 00:06:23]

Right.

Matthew Brogdon: 

[00:06:23 - 00:06:32]

They are engaged in the act of constructing these institutions in the middle of fighting a war. So not a lot of time for academic reflection on this stuff.

Savannah Eccles Johnston: 

[00:06:32 - 00:07:12]

Well, let's get back to that contradiction for just a second longer. You've got that phrase perpetual union. But also in Article 2 you have this phrase, Article 2 of the articles. Each state retains its sovereignty, freedom and independence and every power, jurisdiction and right, which is not by the confederation delegated to the United States in Congress assembled. So again, you have this contradiction. And I sometimes wonder if it can help us to understand the Articles Confederation. To think of the European Union, is it a perpetual union? You still, I mean, France is still France. And yet there are some powers that have been delegated to Brussels. And I'm no expert on the European Union, but I think it's. It's kind of the closest thing we have in the modern era to the Articles is maybe the European Union, maybe.

Matthew Brogdon: 

[00:07:12 - 00:07:57]

I think there is a similar kind of discourse. I think at the cultural level, people talk about Europe or being European as a sort of monoculture, which is one of the things that an awful lot of European countries are reacting against. Like, don't collapse all of my national traditions into some generic thing called Europe. I mean, if you think about all the cultures that have informed Europe. Yeah, yeah. This is kind of like when we use the phrase, we're big supporters of studying Western civilization. Right. These big Umbrella terms. And really what we're talking about there is a huge collection of traditions that have had to work out living together and produced an awful lot, you know, spilled a lot of ink and produced a lot of art and a lot of experiments in government.

Savannah Eccles Johnston: 

[00:07:57 - 00:07:58]

And some blood.

Matthew Brogdon: 

[00:07:58 - 00:08:33]

Yeah, and spilled a lot of blood. That is true. In trying to learn to live together, in shaping a political and cultural and artistic and literary tradition. And it's so different with Europe. You sort of erect this big umbrella. And, you know, people in, you know, Albania are thinking, well, I mean, we're Albanians. Like, I didn't cease to be Italian. And you even have a similar defensiveness with small states in Europe. Right. Less populous states that feel like. When you say we're all Europe, what you're really trying to say is we all look like Germany and we don't all want to be German.

Savannah Eccles Johnston: 

[00:08:33 - 00:09:02]

And so in this sense, the articles actually have an advantage in that you have 13 colonies, that, yes, they're different, they have different histories, but it's like 150 years of history, not 2,000 years of history. It's not different languages. It's not radically different religious traditions. Right. You have some Catholics, you have some different Protestants, but we haven't been fighting Reformation wars. It's a different union is easier. It's more natural in the American states. And I think even they recognize that. Right. That there's something between us that naturally

Matthew Brogdon: 

[00:09:02 - 00:09:34]

goes together and that there's an American identity that's being shaped in contrast to Europe. There's this great passage in the Federalist Papers. I think it's in Federalist 11 when Alexander Hamilton has this pithy phrase where he's trying to really stick it to Europe. And he says, one of the reasons we need union is because I think he organizes the world in sort of like four or five major areas. You know, the Asia, Africa, Europe, the Americas, he said, and Europe is just sort of walked around as though they have a right to rule the rest of the world.

Savannah Eccles Johnston: 

[00:09:35 - 00:09:35]

Right.

Matthew Brogdon: 

[00:09:35 - 00:09:43]

And he says something. I'm gonna get this wrong. But he says something like, someone has to teach that offending brother humility.

Savannah Eccles Johnston: 

[00:09:43 - 00:09:45]

Yeah. I think that is almost exactly the

Matthew Brogdon: 

[00:09:45 - 00:09:51]

line, actually, it's going to be America. Right. This is why we need a union. We need a union. We need an American empire.

Savannah Eccles Johnston: 

[00:09:51 - 00:09:51]

Yeah.

Matthew Brogdon: 

[00:09:52 - 00:09:59]

Rolling around to an empire of liberty as like, Jefferson's going to put it later so that we can put down European pretension.

Savannah Eccles Johnston: 

[00:09:59 - 00:09:59]

Yeah.

Matthew Brogdon: 

[00:09:59 - 00:10:07]

And he says, defend the honor of mankind against Europe's pretension. That it is. It has a right. To rule the rest of the Earth.

Savannah Eccles Johnston: 

[00:10:07 - 00:10:08]

Yeah.

Matthew Brogdon: 

[00:10:08 - 00:10:27]

So it's sort of like America versus European colonialism, which is just such a great fling at them. But this is really important culturally because it means that Americans are thinking themselves. America is, in part, about rejecting the idea that Europe gets to rule other people by virtue of being Europe.

Savannah Eccles Johnston: 

[00:10:27 - 00:10:31]

When you were saying that, did your little patriotic heart just grow 10? Me too.

Matthew Brogdon: 

[00:10:31 - 00:10:36]

Oh, it did. I wanted a musket. I wanted, like, a uniform of some kind.

Savannah Eccles Johnston: 

[00:10:36 - 00:10:39]

Yes. That was a deeply patriotic moment just here.

Matthew Brogdon: 

[00:10:39 - 00:10:42]

It was. It was. That's a rousing speech. You know.

Savannah Eccles Johnston: 

[00:10:42 - 00:11:28]

Okay, so. So. So we have this conflict built in on the question of national versus state control. But then there are other features of the articles that are really important that will teach us important lessons in the next 11 years. And the first is that we really don't copy the state constitutions in terms of, like, separation of powers. There is just a unicameral Congress. There is no executive. There's no judiciary that's retained at the state level. So it's just a unicameral Congress. And it's one state, one vote. You can send as many delegates as you want. It ranges from two to seven. Yeah, but. Or three to seven. But they just have to. The majority of the delegates get to vote for that state, which means you're not sending the cream of the crop to the Articles of Confederation or to the Confederation Congress, I should say.

Matthew Brogdon: 

[00:11:28 - 00:11:49]

Yeah. And states had a bad habit of not paying people who were representatives to Continental Congress. Attendance is one of the biggest problems assembling a quorum to make decisions and do business. The minimum number of people you need to actually pass a rule or take an action as a body. And they often just could not assemble a quorum. There just weren't enough people in town.

Savannah Eccles Johnston: 

[00:11:49 - 00:12:07]

And Washington complains about this frequently, especially during Valley Forge. He's complaining, basically. How did we end up reliant on this Confederation Congress, which is not the cream of the crop. It struggles to get a quorum. Sometimes it's just John Adams running it all by him his lonesome.

Matthew Brogdon: 

[00:12:07 - 00:12:15]

They do eventually create a sort of committee to deal with the war, and Adams plays a huge role in this. Goes out to Valley Forge at one point. Right.

Savannah Eccles Johnston: 

[00:12:15 - 00:12:16]

I didn't know that.

Matthew Brogdon: 

[00:12:16 - 00:12:26]

Adams goes. They go out. Well, maybe it's not. When he's at Valley Forge. Adams goes and visits the army at one point. Makes common calls. Of course, that was important because Adams is the one who had nominated Washington

Savannah Eccles Johnston: 

[00:12:27 - 00:12:32]

and stuck by him his entire. Even when he would criticize Washington, he stuck by him. So more Adams love even while a

Matthew Brogdon: 

[00:12:32 - 00:13:22]

lot of Washington's subordinates spent the war trying to be the commander in chief, which is a real pain. I think it is interesting that the Articles of Confederation treated things as though this was a league of sovereign states, right? That language is in there and then it gives the confederation responsibilities that belong to a government, not just a diplomatic assembly. So you can imagine an assembly where sovereign nations get together to sort of solve conflicts of interest between them basically to head off. The purpose of a body like that is not actually to do stuff, is to prevent stuff from happening, right. You assemble things like the UN Security Council is not there to positively accomplish things. It's actually there to make sure that you don't wind up in a war

Savannah Eccles Johnston: 

[00:13:23 - 00:13:24]

very successfully, I might add.

Matthew Brogdon: 

[00:13:24 - 00:13:52]

One would never want to give to a body like that the direction of a war, right? Say here's an army now, direct it, raise taxes for it, decide policy for it, settle on peace terms. That has to be done by an actual government, someone with authority and most importantly the authority to act in a unitary fashion. Taking action means we choose among courses of action and pursue one. That means we've rejected others.

Savannah Eccles Johnston: 

[00:13:52 - 00:13:53]

Right?

Matthew Brogdon: 

[00:13:53 - 00:16:05]

So if you just have a deliberative assembly, often they can't resolve themselves into decisions. And this is really interesting in terms of structure because the Articles Confederation is often talked about as what we've thrown off the yoke of monarchy. The Americans theory. Before the Revolution, before independence, the American theory of the British Constitution as applied to America was Parliament has no authority here over our affairs. We have colonial assemblies, representative assemblies that make our laws and handle the ordinary course of business and justice. And then for all of our common affairs were subject to the Crown, the European monarch. This is kind of what prevails in European. You know, it's the Dominion theory. It's what prevails in the Commonwealth in some cases, or did at least in theory, where Canada still has the king on their money because presumably the king of the United Kingdom is still their head of state. So if that theory holds, then you got rid of the of royal authority and you replaced it with what? So what now represents the common interests of this union of American states? Well, Congress. Well, Congress is not a monarchy. Congress is just a deliberative assembly. And so you're asking a numerous deliberative assembly where all of the members are completely beholden to their state. They can be given instructions, they can be recalled. This is not like a member of Congress who can look at their states and say, you can kick me out at the next election, but in until then, I'm going to follow my own judgment. Members of congress can't do that. In the confederation. State could just recall them, stop sending them money, they're paying their paycheck. So in that context, there is no head that can give direction. They can say, well, these are the courses of action. This is the one we're going to take. And most importantly, not just decide on a course of action, but follow it through over a period of time. I mean, how often does a deliberative assembly go, nope, here's what we're going to do. And three weeks later you think, actually this turned out to be unpopular. We're not doing that anymore. Well, you can't win a war with that kind of conduct.

Savannah Eccles Johnston: 

[00:16:06 - 00:16:47]

Right. So we have a sore lack of an executive because again, it's just a unicameral congress. Unicameral congress in a firm league of friendship that's supposed to be mostly kind of a diplomatic relationship that is actually being given charge of running a war. And then they have a hard time getting quorums to do so. And then the structures makes it even more difficult. So you need a seven state majority to pass laws, you need nine to declare war or ratify treaties. And you need unanimity to pass amendment. And then of course there's the question of what kind of laws can they pass to begin with? Well, not many. So congress lacks power, for example, over taxation, which means how are you going to raise money for this war that you're supposed to be directing?

Matthew Brogdon: 

[00:16:47 - 00:16:48]

What can they do?

Savannah Eccles Johnston: 

[00:16:48 - 00:16:52]

They can requisition from the states and the states can just not do it.

Matthew Brogdon: 

[00:16:52 - 00:16:57]

I mean, what, send troops? What does confederation actually authorize congress to do?

Savannah Eccles Johnston: 

[00:16:58 - 00:16:58]

Right.

Matthew Brogdon: 

[00:16:58 - 00:16:59]

This is a serious question.

Savannah Eccles Johnston: 

[00:17:00 - 00:17:15]

Well, we know treaties and declaring war. You can deal with western lands, you can deal with Indians. Let's see here, other things that you can do. You can deal with territorial governments setting them up. You can deal with land sales. These are all things that.

Matthew Brogdon: 

[00:17:15 - 00:17:17]

And the international commerce. Right.

Savannah Eccles Johnston: 

[00:17:17 - 00:17:28]

So foreign commerce only to a certain extent. Because you can't regulate commerce. You can't deal with import and exports unified across the colonies.

Matthew Brogdon: 

[00:17:28 - 00:17:44]

So commercial regulations basically take the form of treaties. Yeah, they make agreements with foreign countries with regard to various things. And then you could have what amounts to commercial regulation through agreements with other countries that then constrains people. And you can presumably punish people if they transgress those.

Savannah Eccles Johnston: 

[00:17:44 - 00:17:55]

Right. But it's not effective. Meaning they don't have taxation powers. They don't have commerce powers, nor do they have any direct authority over individuals in the states. So you're not passing laws that regulate, you know, what Matthew can do in Florida.

Matthew Brogdon: 

[00:17:55 - 00:18:08]

I like Madison's metaphor for this later in the Constitutional Convention, is that a government without an executive and a judicial power to carry the laws into execution, he says, is like a body without arms and legs to act and move.

Savannah Eccles Johnston: 

[00:18:08 - 00:18:29]

Right. And actually, the next thing is, even if they do manage to pass a law, if they've gotten a quorum and the Confederation Congress has power to pass laws on that thing, if they have passed a law, if they've gone through all these steps, who is going to execute it? Well, it's going to be executed via congressional committees, which, as you said just previously, is not an effective way to execute the law.

Matthew Brogdon: 

[00:18:29 - 00:18:31]

Committees are great. I'm on lots of them.

Savannah Eccles Johnston: 

[00:18:33 - 00:18:39]

Right. But you also are the director of a center, which means you have executive powers to actually go and do things.

Matthew Brogdon: 

[00:18:39 - 00:18:40]

Right.

Savannah Eccles Johnston: 

[00:18:40 - 00:18:59]

It's very different. So you have, in effect, a form of government, the Articles, the Confederation Congress, that has been given technically power to run a war, and yet they lack many of the powers to do so. Things like taxing so that they can provide for troops pay and for food and for this and that.

Matthew Brogdon: 

[00:18:59 - 00:19:02]

So how in the world did we manage to win the war with this?

Savannah Eccles Johnston: 

[00:19:02 - 00:19:33]

Right. Well, and we should just. Trailer for a future episode, we will be talking about Valley Forge, where a lot of this comes to a head. Right. So how did we manage to survive? Right. Is the question with this revolutionary government? I think one of the points we're trying to make in this episode is although it had so many weaknesses and we still need to talk about ratification, it was still a fairly effective revolutionary government, as revolutionary governments go. You can think of some really not successful ones. Right. Think the French Revolutionary government. It was pretty good. It was not terrible. At least it did the job.

Matthew Brogdon: 

[00:19:33 - 00:19:37]

Which is a typical form of a revolutionary government is dictatorship.

Savannah Eccles Johnston: 

[00:19:37 - 00:19:40]

Yeah. Or anarchy. Anarchy and then dictatorship.

Matthew Brogdon: 

[00:19:40 - 00:19:40]

Right.

Savannah Eccles Johnston: 

[00:19:40 - 00:19:41]

Right.

Matthew Brogdon: 

[00:19:41 - 00:19:41]

Yeah.

Savannah Eccles Johnston: 

[00:19:41 - 00:19:52]

And so it got us through these years. But first, it's written in 1776, but it's not ratified until 1781, which means that we operate under an unratified form of government.

Matthew Brogdon: 

[00:19:52 - 00:19:57]

That's right. It took Congress a year to agree on it. It took the rest of us five years to agree on it.

Savannah Eccles Johnston: 

[00:19:57 - 00:20:10]

Right. So why. What are the main obstacles to ratifying this thing? Even if we're just pretending it's ratified and operating as if it were, it's not ratified until 1781, when finally Maryland gets on board. So what is keeping ratification from happening?

Matthew Brogdon: 

[00:20:11 - 00:20:22]

Well, the usual suspects. Ratification requires unanimity. And another way to describe a unanimous ratification is everybody has a veto.

Savannah Eccles Johnston: 

[00:20:22 - 00:20:26]

Yeah. And one of the biggest vetoes is over western lands.

Matthew Brogdon: 

[00:20:26 - 00:20:36]

And this is true. I mean, if you have a group of people and the consent of all of them is required to take action, then everyone has an absolute veto on action.

Savannah Eccles Johnston: 

[00:20:36 - 00:20:36]

Right.

Matthew Brogdon: 

[00:20:37 - 00:20:40]

In this case, it's Maryland that exercises the absolute veto.

Savannah Eccles Johnston: 

[00:20:40 - 00:20:46]

Yeah, but you should also note here that even though they have an absolute veto, the action is still happening. Right. They're still acting under the articles.

Matthew Brogdon: 

[00:20:46 - 00:21:00]

But I have a controversial theory about that. But. Okay, well, we can canvas at some other time. I actually think the Declaration itself conferred a measure of power on Congress. It constituted a union that had power to wage war, to do all the things described.

Savannah Eccles Johnston: 

[00:21:00 - 00:21:01]

I don't think that's controversial.

Matthew Brogdon: 

[00:21:02 - 00:21:56]

No, it's deeply controversial. There are actually a number, at least among. There are a number of lawyers who would argue that the declaration has no legal effect of any kind. And I actually think it does function as a kind of constitution in the interim. It doesn't set out a form of government, but it sets out the fact that there is a union and that the union is going to undertake the powers, the separate and equal station among the powers of the earth to which the laws of nature and nature's God entitle a people. And somebody's got to do that. There's no institutional form, but the declaration says you're a union. You're engaged in the activities of a union. You're going to have to act as a foreign country, as one people. And that leaves Congress with an imperative, which is not uncommon. I mean, in human history, people did not typically have written constitutions that said this is the institution that makes your laws, and this is the institution that carries. You just had customs.

Savannah Eccles Johnston: 

[00:21:56 - 00:21:57]

Yeah.

Matthew Brogdon: 

[00:21:57 - 00:22:10]

That's what shaped most. And so frankly, Americans had, in terms of our national union, a customary constitution between independence and the ratification of the Articles of Confederation. Right.

Savannah Eccles Johnston: 

[00:22:10 - 00:22:14]

Well, I hate to admit it, but I agree with you. So it happens every once in a while.

Matthew Brogdon: 

[00:22:15 - 00:22:17]

You make a really big point to the right decision.

Savannah Eccles Johnston: 

[00:22:19 - 00:22:23]

As I get smarter and learn more, I'll eventually just have all the same opinions as you, I'm sure.

Matthew Brogdon: 

[00:22:23 - 00:22:24]

I don't believe that.

Savannah Eccles Johnston: 

[00:22:24 - 00:22:46]

All right, so we should explain why it took so long and it's over. These western land claims for Maryland, Maryland being the veto here. And it comes back to this idea of sea to sea charters. This is so interesting to me. So There are certain landed states, Georgia, the Carolinas, Virginia, that have charters that grant them land from sea to sea, meaning Atlantic to Pacific.

Matthew Brogdon: 

[00:22:46 - 00:22:47]

Theoretically.

Savannah Eccles Johnston: 

[00:22:47 - 00:23:09]

Theoretically. And then you've got landless states like New Jersey and Maryland and Delaware, who say, I will not ratify this until you agree to give up all land west of the Appalachian crest to the Confederation Congress, who will then be in control of dealing with western lands, which is actually one of the things that the Confederation Congress does so well.

Matthew Brogdon: 

[00:23:09 - 00:23:21]

The idea of a national territory, the territories of the United States rather than the western territories of Virginia and North Carolina and Georgia, when you can see

Savannah Eccles Johnston: 

[00:23:21 - 00:23:29]

both why Maryland would demand this and why Virginia, just as one example, would be so hesitant to give up four Marylands.

Matthew Brogdon: 

[00:23:29 - 00:23:30]

And they're just landlocked on the coast.

Savannah Eccles Johnston: 

[00:23:30 - 00:23:31]

Right.

Matthew Brogdon: 

[00:23:31 - 00:24:03]

By the way, this is one of those places where in terms of civic education and in terms of learning about your traditions and your history, geography is just so important. Like, if I could just. If people just learned where the stuff was on the map and where the rivers and borders are, do you know how much easier it is to teach the Civil War or the crisis over slavery why Lincoln's so worried about Kentucky? You know, it's just Maryland. Why is Maryland so desperately important?

Savannah Eccles Johnston: 

[00:24:03 - 00:24:19]

You know what I made students do in my back when I was still teaching Intro to American Politics, the first thing we did was a map quiz of the United States. Just not even rivers, just a map quiz of the United States. And students despised that assignment and regularly flunked it.

Matthew Brogdon: 

[00:24:19 - 00:24:22]

That's so strange. Why don't people want to know where stuff is?

Savannah Eccles Johnston: 

[00:24:22 - 00:24:23]

I don't know.

Matthew Brogdon: 

[00:24:23 - 00:24:46]

I don't know. I guess my kids all did curriculum where they had to memorize states and capitals and find things on a map. And it was just part of their sort of early. And at that age, they loved it. Like as 8 year olds, they loved finding stuff on a map and singing songs about it and pointing out where all the things were. And I get it, it's boring for college students when you roll around to it. But I think it's because we kind of don't do it. I don't think it's boring when it's still fun.

Savannah Eccles Johnston: 

[00:24:47 - 00:25:01]

I have a colleague who teaches foreign policy down at Texas A and M, and she requires map quizzes as well of the Middle east and whatever places. And students get about it and say, well, I've got Google Maps. And she says, well, if you don't have a map in your head, you don't understand.

Matthew Brogdon: 

[00:25:01 - 00:25:15]

Oh, that's just wild. How can you read Lincoln's House divided speech and not know where stuff is? Yeah, like, the most important debates in American politics have so often been about where stuff is and who controls it.

Savannah Eccles Johnston: 

[00:25:15 - 00:25:16]

Yeah, agreed.

Matthew Brogdon: 

[00:25:16 - 00:25:20]

I mean, that's applicable to most of human political history, probably.

Savannah Eccles Johnston: 

[00:25:20 - 00:25:21]

Yeah.

Matthew Brogdon: 

[00:25:21 - 00:25:24]

I just don't understand. I mean, how do you know what's going on in the world?

Savannah Eccles Johnston: 

[00:25:24 - 00:25:25]

You know, we're not.

Matthew Brogdon: 

[00:25:25 - 00:25:32]

I mean, what are people thinking? Like, why is the Strait of Hormuz so important? Like, I'll just look it up on Google Maps. That's wild.

Savannah Eccles Johnston: 

[00:25:33 - 00:25:37]

Well, civic education needs to be revived, and geography is a part of it.

Matthew Brogdon: 

[00:25:37 - 00:25:40]

We're. We're doing it. The revolution has begun.

Savannah Eccles Johnston: 

[00:25:40 - 00:25:43]

We're not sponsored by the app Se Terra, but it's a free app, so.

Matthew Brogdon: 

[00:25:43 - 00:25:50]

See, people are afraid we're going to do revolutionary, wild stuff with civic education. Actually, we just want students to learn where something's on the map.

Savannah Eccles Johnston: 

[00:25:50 - 00:25:51]

Find Utah on the map.

Matthew Brogdon: 

[00:25:51 - 00:25:56]

That's right. Oh, please. Where is the Ohio River? And. And, you know, why is it important?

Savannah Eccles Johnston: 

[00:25:56 - 00:26:52]

Right. That makes you a radical, though. All right, so finally, Maryland gets on board because the landed states agree to cede everything west of the Appalachian crest to the national government. And this. This is actually going to be one of the highlights of the Confederation Congress, where the Articles of Confederation actually kind of works well, other than, you know, seeing us through a war is in dealing with land sales and Western land disputes. So there's this idea that the Articles Confederation was effective at external tasks like treaties and war and diplomacy, but not internal tasks. Things like land use, policy, interactions with Indians, et cetera. And I just don't think that's true. I actually think they have some really impressive successes with Western lands and with dealing with Indians, often not in a happy way. And with territorial governments. They set precedents for us that we just pick up and take into the Constitution.

Matthew Brogdon: 

[00:26:52 - 00:27:03]

And to be clear, being effective in the sense that you're using it doesn't mean they chose the best policy option in all cases, but they were an effective government. They were able to make a decision and follow through on a coherent policy.

Savannah Eccles Johnston: 

[00:27:03 - 00:27:04]

Yes.

Matthew Brogdon: 

[00:27:04 - 00:27:11]

Whether they chose the right policy is kind of the secondary question. Whether they're even capable of making a policy as one.

Savannah Eccles Johnston: [00:27:11 - 00:27:11]

Right.

Matthew Brogdon: 

[00:27:11 - 00:28:11]

I think people confuse two different questions when they ask this, because when people say that the like, oh, they're, you know, foreign, you know, external affairs. Internal affairs, what they're actually talking about is authority. If you read the Articles of Confederation, it sounds like the Federal Union, the Confederation Congress has a lot of authority, formal authority over external things. Nobody can test the fact that they can make treaties, they can conclude peace and conduct war, that they can basically govern foreign commerce through agreements of foreign nations. No one disputes that in theory. But in practice, Congress is fairly toothless to actually manage many of those things, whereas what you're pointing out is their authority would seem to be less on internal affairs, but their effectiveness in the area is greater. So there actually is a difference between the partition and authority, the what we've said governments are responsible for doing, and then what they're actually good at.

Savannah Eccles Johnston: 

[00:28:11 - 00:28:35]

Well, and this gets back to the point you made earlier, which is the lack of effectiveness on the external side is because of the lack of an executive. And this is a painful lesson that we learned before 1787, where we finally decide that actually we should have a greater fear of inefficiency in government, or at least an equal fear of inefficiency in government as we should, a fear of tyranny personified in an executive. But at the beginning, we don't have that.

Matthew Brogdon: 

[00:28:35 - 00:31:12]

But, you know, this is not all that surprising because a lot of the things you name are things that are sort of collective responsibilities of the union or burdens on the union, where individual states have different interests, Right? So if you ask any one state, what should we do about this? Their interests are going to dictate a very definite course of action, but one that might not be good for the union as a whole or might not result in a just outcome. And so this is actually sort of the logic. Madison's not going to write Federalist 10 for another decade or more, 12 years. But there is a sort of what we sometimes phrase as the Federalist 10 logic, the idea that when you force a bunch of people with divergent perspectives and views, a multiplicity of interests, to get together and deliberate and come to a decision, which is basically what a legislature does, you actually do get better outcomes because you actually have to come up with an outcome that makes not just like faction a, which has 51% agrees with in faction B, which has a small minority, you know, minority disagrees. But in fact, you have four or five views of what ought to be done. There's not just a majority and a minority, there's a multiplicity, there's a plurality. And deliberative bodies actually do really well at taking all those plurality of views, the four or five options, and going, well, what checks as many boxes as possible? What can we all live with? Because that's often the question is not what would each of us think is the best thing to do, but what can we all live with? And Madison's later gonna make the point that actually produces better policy than just letting some fair majority make a decision and impose it on everybody. And I think these issues on like western lands and things actually fit into this. It's interesting to me. I'm no expert on Native American law or politics or the rest of it, but I do remember listening to an interview with Maggie Blackhawk, who's I think at Chicago Law and a really important scholar in this area. But she was making the point actually that historically Congress has been better at settling on a course of action that's reasonable and then sticking to it. Whereas the states have been very, you know, wishy washy. They're very inconsistent. And so she was actually making this sort of Federalist 10 case for Congress being a better body. And this might explain why the Confederation Congress is dealing more competently with things like western lands and things like the, you know, land sales and other things.

Savannah Eccles Johnston: 

[00:31:12 - 00:31:18]

This is a great point, though. The national government has frequently been more just in its interactions with nature, which

Matthew Brogdon: 

[00:31:18 - 00:31:19]

is what Madison predicts.

Savannah Eccles Johnston: 

[00:31:19 - 00:31:38]

Right. Than the states have. Okay, so if we're going to kind of evaluate the Articles of Confederation, it's easy to hate on them and say, look, this was, by the time you got to 1787, this is not a good form of government anymore. But it was a form of government created to do a very specific. And that was to see us through the revolutionary period. And it did it.

Matthew Brogdon: 

[00:31:38 - 00:31:55]

Could you maybe drill down a little bit on what you mean by them being effective? Because we talked in very general terms about this. But what are you thinking? Because a lot of people are probably thinking western lands, land sales, you know, these sorts of things. What in the world is that? What kind of questions is Congress actually asked to answer in those areas?

Savannah Eccles Johnston: 

[00:31:55 - 00:32:01]

Well, things like the ordinances of. What is it, 17, the Northwest Ordinance. Well, we get to that. There's three before, right?

Matthew Brogdon: 

[00:32:01 - 00:32:02]

Oh yeah, right.

Savannah Eccles Johnston: 

[00:32:02 - 00:32:19]

And these deal with how are you going to create territories? How are these territories going to become states? How are you going to handle the question of slavery in these territories that are going to become states? These are all things that are first laid out under the Articles of Confederation. We just kind of take them for granted under the constitutional ordinance.

Matthew Brogdon: 

[00:32:19 - 00:32:21]

Constiturable policy in many cases.

Savannah Eccles Johnston: 

[00:32:21 - 00:32:24]

Well, that's what I mean is that they're assumed in to the new form of government.

Matthew Brogdon: 

[00:32:24 - 00:32:45]

The Northwest Ordinance becomes the default for how we deal with slavery in the territories. Until Congress changes It. I mean, it's not until 1820. I mean, the Missouri Compromise is going to change the way all that works. But that means that was a policy the Confederation Congress made that sticks until the 1820s, right, as national policy.

Savannah Eccles Johnston: 

[00:32:45 - 00:32:52]

Well, in the 1820s, it sticks with it. Even the 1820s builds on that. It's not until you get to the Kansas Nebraska act that you really kind of nuke.

Matthew Brogdon: 

[00:32:52 - 00:33:09]

Well, that's true. You actually keep. I mean, the Missouri Compromises, we'll keep the Northwest Ordinance, which said slavery can't exist here in these new territories, will keep the Northwest Ordinance for sort of extend it westward above a certain line, above 36 degrees, 30 minutes.

Savannah Eccles Johnston: 

[00:33:09 - 00:33:10]

But it's following its logic.

Matthew Brogdon: 

[00:33:10 - 00:33:10]

Yeah.

Savannah Eccles Johnston: 

[00:33:10 - 00:33:13]

Yeah. Whereas Kansas and Nebraska act does it. It kind of blows that up.

Matthew Brogdon: 

[00:33:13 - 00:33:28]

So then we say, at least for most western territories, and the northern part was the far more capacious part of western territories after Louisiana Purchase. That means the Confederation Congress made a policy that stuck for most of western territories for 70 years.

Savannah Eccles Johnston: 

[00:33:28 - 00:33:29]

Yeah, that's pretty effective.

Matthew Brogdon: 

[00:33:30 - 00:33:32]

That's a very impressive piece of policy making.

Savannah Eccles Johnston: 

[00:33:32 - 00:33:46]

So when we're talking about effectiveness in that sense, they were. Where they weren't effective was actually in that external dealing with other countries. Yes. We negotiated the Treaty of Paris. That's very good. But actually enforcing the Treaty of Paris, we're very poor at that. Yeah.

Matthew Brogdon: 

[00:33:46 - 00:33:48]

We had to renegotiate it in 1794

Savannah Eccles Johnston: 

[00:33:48 - 00:34:01]

because we lack an executive. So was it a form of government that was going to serve us for 200 years? No. But was it a form of government that served us very well for 11 years and saw us through a revolutionary period? Yes.

Matthew Brogdon: 

[00:34:01 - 00:34:01]

Yeah.

Savannah Eccles Johnston: 

[00:34:01 - 00:34:04]

And it maybe deserves a little bit more credit than it gets.

Matthew Brogdon: 

[00:34:04 - 00:34:13]

Yeah. I think that, you know, Congress does build the plane while flying it, but the plane does fly like it's a bit of a clunker. But it got the job done.

Savannah Eccles Johnston: 

[00:34:13 - 00:34:17]

Yeah. And taught us important lessons to get us to the better plane in 87.

Matthew Brogdon: 

[00:34:17 - 00:35:45]

And I want to point out two things that occur to me in this, this whole narrative that don't always strike me, but things that just strike me as really important here. One is, despite the clunkiness of the Confederation Congress, Washington as commander in chief of the army through the whole thing, with all of the aggravation maintained and actually carried out in practice, the subordination of the military to the civil power, even when Congress was being stupid and slow, I mean, he didn't let his army be chewed up by the British, but by the same token, he did not take decisive Strategic action, unless the civil authority deemed necessary at one point. One of the things that Adams does is argues for a more complete, independent authority for the commander in chief of the armed forces. Something like, the president's eventually going to have we decided to go to war. Now you conduct the war, and Adams argues for something like that. Congress winds up giving Washington some of those powers at one point, but not fully. And Washington himself is of two minds about it. He thinks, well, yeah, we do need decisive action. I also don't want to opt for the military dictatorship, which to everyone is very present, because this was how the Romans had an office of dictator. We get dictator from the fact there was a constitutional office of dictator, the Roman Republic. And that was, to everyone's mind, they thought that's how you deal with an emergency.

Savannah Eccles Johnston: 

[00:35:45 - 00:35:53]

Right. But we should note here that again, because we're talking about the Articles of Confederation, at least part of what allowed them to be successful was Washington's restraint.

Matthew Brogdon: 

[00:35:53 - 00:37:04]

Yes, right, right. If you had had a more ambitious general, and there are more ambitious generals that fortunately they don't put in charge, you would have had something like a coup, a military coup, which Washington not only in his own conduct throughout the war observes, but of course, as everybody knows, that Newburgh is going to squash the plot for a military coup in an effort to set him up as a sort of dictator when Congress proves ineffective. But that's really important that you have a responsible statesman. Which does also bring us back to the fact that it is crucially important that the right person be in charge without people making the right choices, without people taking virtuous action, decisive action, to do the right thing. The best laid structure is not going to save you from disaster or tyranny. So that seems to me to be, you know, and we do. We try to build a constitution that, you know, secures us against whether we have idiots or wise people in control. The second thing is, even though they didn't actually have an executive in these other affairs, they did manage to build a committee system that would do it. I mean, the fact was, Congress appointed, like Robert Morris as commissioner of finance.

Savannah Eccles Johnston: 

[00:37:04 - 00:37:04]

Yeah.

Matthew Brogdon: 

[00:37:04 - 00:37:53]

So they had these commissions that, in effect, they delegated the authority of an executive department to who actually did the work. They had people serving effectively as the chief diplomats of Congress. And Morris is running what amounts to a department of finance very effectively, very effectively, very well. He manages his own finances. Worse, he winds up in debtor's prison. So he goes from being the wealthiest man in America to a debtor's prison in the 1790s. So you do have the exercise again, they are able to craft. Individuals largely are able to craft solutions. Washington with the military, Morris with finance, Adams with respect to a lot of internal affairs, like supplying the army, there are others who play really important roles there. So the machinery is not all there from the start. It's not all laid out in the text of the Articles, the kind of

Savannah Eccles Johnston: 

[00:37:53 - 00:38:21]

ad hoc built in. So if we were to summarize our view of the Articles Confederation, they did the job they were supposed to do. They didn't dissolve into anarchy, they didn't become a tyranny because of the civic virtue of George Washington. And they managed to create kind of ad hoc committees with sort of, kind of executive powers that managed to see us through the crisis and teach us lessons along the way that helped to create a very effective form of government in 1787.

Outro: 

[00:38:23 - 00:39:04]

The Constitution is more than parchment under glass at the National Archives. It's a blueprint for American self government that shapes every part of our civic life, from the rights we cherish to the laws we live under. We explore the ongoing battle over the meaning and relevance of America's founding document. This Constitution will equip you to engage the most pressing political questions of our time. Join us every two weeks as we hash out constitutional questions together. This podcast is ordained and established by the Center for Constitutional Studies at Utah Valley University, the home of Utah's Civic Thought and Leadership Initiative.