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The Articles of Confederation (1781-1789)

The Founding Fathers

Article 6

Article 5

Articles 7-8

Summary—Powers denied to states

States are denied certain powers under the Articles of Confederation. States may not send ambassadors to foreign countries, receive foreign ambassadors, or make any kind of arrangement, meeting or treaty with any king, prince or state. No person or state may accept any gift, including titles of nobility, from a foreign state. Neither Congress nor any state can give people noble titles.

A state may not enter into any treaties or alliances with another state without the approval of Congress.

A state may not make imposts on trade that will interfere with the terms of foreign treaties made by Congress.

A state cannot maintain any warships, or other military forces (troops) during peacetime unless Congress has determined it necessary to defend that state, its trade or forts in that state. Each state must maintain a "well-regulated and disciplined" militia, and a sufficient amount of supplies for that militia.

A state does not have the power to make war without the permission of Congress, unless it is forced to defend itself against a surprise attack and cannot wait for the permission of Congress.

Commentary

While the focus of Article 6 is on the limitations of state power, it also reflects certain historical realities that faced the young nation, and addresses the threats, both internal and external, that the nation was vulnerable to in its early years.

One of the most important and agreed upon ideas in the Articles of Confederation was its anti- nobility sentiment. Colonists, even the most conservative, understood how a system of hereditary nobility would serve to sharpen class distinctions, limit economic and political freedom, and corrupt a democratic government. They wanted to break from the tradition of the British parliament, where the House of Lords, made up only of nobles, had clear advantages over the House of Commons, comprised of people elected from each region. Although many colonists still favored an "elite" group holding greater power than the masses, they preferred that the elite group be defined by actual property holdings and wealth, rather than by a title of nobility.

Another strongly held belief by most colonists was the importance of protecting the state, and therefore the people, through the establishment of a well-regulated militia. Based on the tradition of the minutemen, the militia clause recognizes the constant need of a state to be on guard against military threats and invasion. Although states could not raise armies and navies, they were required to have a group of soldiers prepared in case of threats from within or without. This would also protect the state governments against a strong national military.

During the time of the Articles of Confederation, the states faced many sources of potential invasion. The nations that had fought in the American Revolution and still occupied parts of North America were the most threatening. Great Britain, although agreeing to abandon the forts in the Great Lakes region, refused to leave. They therefore posed a military threat from the north (Canada) and the west. Not only were they able to amass troops on the northern and western borders of the United States if they chose, but they also maintained their trade posts in the Great Lakes Region and could provide Native American tribes with weapons to be used against the states.

Great Britain could also serve as an outside alliance for disgruntled states. When Ethan Allen formally declared Vermont independent from New York, Great Britain promised to recognize its independence if it would become an ally. Vermont tried to use this proposed alliance to force Congress to accept its independence at this time, but Great Britain lost interest in Vermont once the war ended. However, the potential for powerful outside alliances was there, and threatened the internal stability of the United States.

Spain, holding territory to the south and west of the United States also posed a threat. Although Spain had been an ally of the United States during the American Revolution, it feared the expansion of the United States west beyond the Mississippi. Spain tried to woo those westerners into Spanish citizenship in order to strengthen its hold on the Mississippi River region. In the Jay-Gardoqui talks, Spain attempted to block all American trade from the Mississippi River, in hopes of coercing American farmers living in the western regions of the United States to become Spanish citizens in order to sustain their livelihood.

Furthermore, most Native American tribes were allies of the British, and felt threatened by the American tendency to grab great amounts of western land for their ever-increasing population. Border states, especially to the South (Georgia, North Carolina), constantly feared the threat of a Native American attack or invasion. The qualification that states are not empowered to wage war, unless under imminent attack, refers to the very distinct possibility that a state would find itself under attack without a formal declaration of war, or enough time to ask for permission of Congress to defend itself.

A more remote fear of internal division is alluded to in the clause about states entering into alliances with each other. Those who drafted the Articles were well aware of the power of unity in opposing a governing force. They anticipated that states might become unhappy with the central government. In this light, the writers of the Articles attempted to eliminate the possibility that states could join in unity against the government. However, the wording is weak and emphasizes the inability of Congress to enforce its rulings. This clause implies that as long as states inform congress of their alliance, the alliance is okay. Even if Congress prohibited the alliance, how could it force the alliance to end?

The trade meeting between Maryland and Virginia that took place at Mount Vernon in 1786 is a perfect example of what was disallowed by the Articles of Confederation. Congress did nothing at all to stop this meeting or alliance, and when an additional meeting was scheduled at Annapolis, inviting all of the states into a commercial alliance, Congress still did nothing. Congress had good reason to perceive this alliance as a threat, since it served to undermine its authority by re-making the Articles of Confederation. However, in its powerless position, Congress did nothing.

Article 6 is also significant in the way in which it expresses the relationship between Congress and the states with regard to commerce. States are not allowed to partake in any sort of foreign diplomacy or treaty making—that power is reserved for Congress. However, Congress is not granted the power to make imposts on foreign trade. Therefore, each state is allowed to determine its own imposts, as long as it doesn't interfere with the terms of foreign treaties made by Congress.

The phrasing of the clause on imposts leaves a huge flexibility of interpretation, allowing states to determine their imposts. The allowance of such flexibility demonstrates the powerlessness of Congress when it came to taxes of any kind. All of the other clauses in this Article assert that a state may not do something (such as make war), without the approval of Congress. In the impost clause the necessary approval of Congress is noticeably missing because Congress does not possess any authority over imposts. Therefore, the judgment is left to the states, not to Congress, about the permissibility of each impost.

Article 6, in attempting to define the limitations of state powers, actually does more to indicate the threats facing the young nation and the powerless nature of Congress. Even the powers given exclusively to Congress, such as making war and peace, are transferable to a state when Congress approves. A weak Congress lacking the power of enforcement could have been powerless to stop a state that usurped the congressional power of making war. Fortunately, the only usurpation of power that it was unable to stop, the Mount Vernon Conference, ultimately resulted in a strengthening of national power.

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