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Constitutional Conundrums and Fiscal Follies: In Defense of the Articles of Confederation

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Leaders of the Continental Congress by Augustus Tholey, c. 1894 (Library of Congress) Washington spends too much, taxes too much, does too much. That’s because of the Constitution, not in spite of it.

Thinkpieces lamenting the state of constitutional government are a dime a dozen. If only we embraced a correct reading of the Constitution (the various schools of originalist thought seem promising), we could get America back on track: “The Constitution has not failed; the Constitution has never been tried!”

But it has been tried. The Constitution did exactly what some of its most ambitious proponents hoped it would: It laid the foundations for an imperial fiscal-military state. Conservatives and libertarians rightly bemoan excessive centralization under a ravenous Leviathan. If they realized that’s a feature, not a bug, of the constitutional system, perhaps we could finally do something about it.

We approach an auspicious day in U.S. history, although almost nobody is aware of it. On March 1, 1781, the 13 states ratified the Articles of Confederation. This was our nation’s first constitution, which prevailed until the ratification of the U.S. Constitution in 1789. The Articles made for a very different government than the Constitution. Acts of the unicameral Congress required concurrence from nine of 13 states. Amendments to the Articles required unanimity. And let’s not forget the powerful words of Article II, which we and many other students of history wish were more explicitly reproduced in the 10th Amendment to the U.S. Constitution: “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.” Talk about a missed opportunity!

To the extent the Articles are discussed at all, it’s usually because of how dysfunctional American government was during those eight tumultuous years. Here’s a sampling of charges: State governments regularly engaged in trade wars with each other, inhibiting commercial development and economic growth; Congress couldn’t pay down the Revolutionary War debt because it lacked the power to tax; America would be helpless before rapacious European powers

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