Problems with the Articles of Confederation

The Lack of Executive and Judicial Powers

Perhaps the greatest defect of the Articles of Confederation was that they failed to create a complete, functioning government that had the capacity to make laws, execute them, and administer justice, or to act in any way upon on individuals citizens within the states. The Articles specified that “Each State retains its sovereignty” (Art. II), which meant that the United States was, in all cases, beholden to it constituent parts. While the Articles of Confederation established a Congress, the Articles government had no executive or judicial branches. This meant that Congress could not enforce the powers it did possess or the laws it did manage to pass. The Articles did assert for Congress some authority over the states when they specified that “Every State shall abide by the determinations of the United States in Congress assembled” (Art. XIII), but they did not give to the federal government any means of making them abide should they refuse. A year before the Constitutional Convention met, George Washington wrote to John Jay about the need to address this defect above all others:

We have errors to correct. We have probably had too good an opinion of human nature in forming our confederation. Experience has taught us, that men will not adopt & carry into execution, measures the best calculated for their own good without the intervention of a coercive power. . . . To anticipate & prevent disastrous contingencies would be the part of wisdom & patriotism. 

-George Washington to John Jay, August 15, 1786

How did the U.S. Constitution later address these issues?

To hold states accountable to a federal Congress, the new Constitution provided that upon ratification, “This Constitution, and the Laws of the United States…” which shall be made in Pursuance thereof; and all Treaties made… shall be the supreme Law of the Land.” This meant that states agreed to relinquish at least part of their sovereignty—a major change in how the new government was to be set up as compared to the Articles of Confederation. 

More importantly, Articles II and III of the new Constitution established an Executive and a Judiciary, respectively. The addition of these necessary powers meant that the United States was now a fully functioning government, competent to enforce those powers it was given. With these new powers, the government could govern individual citizens directly, rather than trying to govern the states as corporate bodies. As Madison argued in Federalist No. 20, “a government over governments, a legislation for communities, as contradistinguished from individuals… is subversive of the order and ends of civil polity, by substituting violence in place of the mild and salutary coercion of the magistracy.” The Constitution established this magistracy, which was the only way it could make the determinations of Congress effective.