In May 1786, Charles Pinckney of South Carolina proposed that Congress revise the Articles of Confederation. Recommended changes included granting Congress power over foreign and domestic commerce, and providing means for Congress to collect money from state treasuries. Unanimous approval was necessary to make the alterations, however, and Congress failed to reach a consensus. The weakness of the Articles in establishing an effective unifying government was underscored by the threat of internal conflict both within and between the states, especially after Shays' Rebellion threatened to topple the state government of Massachusetts.
On January 21, 1786, the Virginia Legislature, following James Madison's recommendation, invited all the states to send delegates to Annapolis, Maryland to discuss ways to reduce these interstate conflicts. At what came to be known as the Annapolis Convention, the few state delegates in attendance endorsed a motion that called for all states to meet in Philadelphia in May, 1787 to discuss ways to improve the Articles of Confederation in a "Grand Convention." Although the states' representatives to the Constitutional Convention in Philadelphia were only authorized to amend the Articles, the representatives held secret, closed-door sessions and wrote a new constitution. The new Constitution gave much more power to the central government, but characterization of the result is disputed. The general goal of the authors was to get as close to a republic as defined by the philosophers of the Age of Enlightenment, while trying to address the many difficulties of the interstate relationships. Historian Forrest McDonald, using the ideas of James Madison from Federalist 39, describes the change this way:
The constitutional reallocation of powers created a new form of government, unprecedented under the sun. Every previous national authority either had been centralized or else had been a confederation of sovereign states. The new American system was neither one nor the other; it was a mixture of both.[16]
When approached after leaving the close of the Federal Convention, Benjamin Franklin was asked a question. This is the conversation as has been recorded:
The lady asked "Well, Doctor, what have we got—a Republic or a Monarchy?"
“A Republic, if you can keep it.” was the response of Benjamin Franklin.
Historian Ralph Ketcham comments on the opinions of Patrick Henry, George Mason, and other antifederalists who were not so eager to give up the local autonomy won by the revolution:
Antifederalists feared what Patrick Henry termed the "consolidated government" proposed by the new Constitution. They saw in Federalist hopes for commercial growth and international prestige only the lust of ambitious men for a "splendid empire" that, in the time-honored way of empires, would oppress the people with taxes, conscription, and military campaigns. Uncertain that any government over so vast a domain as the United States could be controlled by the people, Antifederalists saw in the enlarged powers of the general government only the familiar threats to the rights and liberties of the people.[17]
According to their own terms for modification (Article XIII), the Articles would still have been in effect until 1790, the year in which the last of the 13 states ratified the new Constitution. The Congress under the Articles continued to sit until November 1788,[18][19][20][21] overseeing the adoption of the new Constitution by the states, and setting elections. By that date, 11 of the 13 states had ratified the new Constitution.
Historians have given many reasons for the perceived need to replace the articles in 1787. Jillson and Wilson (1994) point to the financial weakness as well as the norms, rules and institutional structures of the Congress, and the propensity to divide along sectional lines.
Rakove (1988) identifies several factors that explain the collapse of the Confederation. The lack of compulsory direct taxation power was objectionable to those wanting a strong centralized state or expecting to benefit from such power. It could not collect customs after the war because tariffs were vetoed by Rhode Island. Rakove concludes that their failure to implement national measures "stemmed not from a heady sense of independence but rather from the enormous difficulties that all the states encountered in collecting taxes, mustering men, and gathering supplies from a war-weary populace."[22] The second group of factors Rakove identified derived from the substantive nature of the problems the Continental Congress confronted after 1783, especially the inability to create a strong foreign policy. Finally, the Confederation's lack of coercive power reduced the likelihood for profit to be made by political means, thus potential rulers were uninspired to seek power.
When the war ended in 1783, certain special interests had incentives to create a new "merchant state," much like the British state people had rebelled against. In particular, holders of war scrip and land speculators wanted a central government to pay off scrip at face value and to legalize western land holdings with disputed claims. Also, manufacturers wanted a high tariff as a barrier to foreign goods, but competition among states made this impossible without a central government.[23]
Political scientist David C. Hendrickson writes that two prominent political leaders in the Confederation, John Jay of New York and Thomas Burke of North Carolina believed that "the authority of the congress rested on the prior acts of the several states, to which the states gave their voluntary consent, and until those obligations were fulfilled, neither nullification of the authority of congress, exercising its due powers, nor secession from the compact itself was consistent with the terms of their original pledges."[24]
Law professor Daniel Farber argues that there was no clear consensus on the permanence of the Union or the issue of secession by the Founders. Farber wrote:
What about the original understanding? The debates contain scattered statements about the permanence or impermanence of the Union. The occasional reference to the possible impermanency of the Constitution are hard to interpret. They might have referred to a legal right to revoke ratification. But they could equally could have referred to an extraconstitutional right of revolution, or to the possibility that a new national convention would rewrite the Constitution, or simply to the factual possibility that the national government might break down. Similarly, references to the permanency of the Union could have referred to the practical unlikelihood of withdrawal rather than to any lack of legal power. The public debates seemingly do not speak specifically to whether ratification under Article VII was revocable.[25]
However, what if one or more states do violate the compact? One view, not only about the Articles but also the later Constitution, was that the state or states injured by such a breach could rightfully secede. This position was held by, among others, Thomas Jefferson and John Calhoun.
If any state in the Union will declare that it prefers separation . . . to a continuance in union . . . I have no hesitation in saying, let us separate.
— Jefferson letter to James Madison, 1816
This view motivated discussions of secession and nullification at the Hartford Convention, the Virginia and Kentucky Resolutions, and the Nullification Crisis. In his book Life of Webster Sen. Henry Cabot Lodge writes
It is safe to say that there was not a man in the country, from Washington and Hamilton to Clinton and Mason, who did not regard the new system as an experiment from which each and every State had a right to peaceably withdraw.[26][27]
A competing view, promoted by Daniel Webster and later by Abraham Lincoln , was that the Constitution (and Articles) established a permanent union.[28][29] President Andrew Jackson during the Nullification Crisis, in his “Proclamation to the People of South Carolina”, made the case for the perpetuity of the Union while also contrasting the differences between “revolution” and “secession”:[30]
But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union. To say that any State may at pleasure secede from the Union, is to say that the United States are not a nation because it would be a solecism to contend that any part of a nation might dissolve its connection with the other parts, to their injury or ruin, without committing any offense. Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right, is confounding the meaning of terms, and can only be done through gross error, or to deceive those who are willing to assert a right, but would pause before they made a revolution, or incur the penalties consequent upon a failure.[31]
This view, among others, was presented against declarations of secession from the Union by southern slave states as the American Civil War began.
