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Are We Drifting Back to the America of the Articles of Confederation?

Consensus among the states on issues of national importance now seems as elusive as it was in the nation’s pre-Constitution days.

York mural
A mural by David Naydock on a building in York, Pa., depicts members of the Continental Congress debating the Articles of Confederation.
I grew up in York, a small city in central Pennsylvania — so small, in fact, that the entire population could fit, twice, inside the University of Texas football stadium near where I now live in Austin. Among other things, York is known for Peppermint Patties (though manufacturing has moved to Mexico), air conditioners (though the factory has moved to Wichita), and barbells (the Weightlifting Hall of Fame is located there, with a giant weightlifter towering over a nearby highway).

But the city is perhaps most proud of its claim as the first capital of the United States. In late 1777, things were not looking good for George Washington’s army. His British counterpart, General William Howe, took aim at Philadelphia, figuring that if he captured the revolutionaries’ seat of power he’d knock out their ability to fight. The Continental Congress packed up and moved out of town, first to Lancaster in the Pennsylvania Dutch Country. Even that didn’t seem safe enough, so the Congress moved once again, this time putting the Susquehanna River between itself and Howe’s army.

What made York the first capital, or so local boosters contend, was that the Congress adopted the Articles of Confederation while sitting there. That gave the new country a formal government. And the French then jumped into the war on the side of the Americans, which gave the new country a powerful ally.

York’s national-capital status didn’t last long — just nine months. But the long shadow of the Articles is still visible today. And it raises a big question: Are we drifting back to those days?

Hopes for a New Constitution

Every state, according to the Articles, “retains its sovereignty, freedom, and independence.” So far, so good. But the Articles invented national gridlock: It took a supermajority of nine of the 13 states to make any decision. That often turned out to be impossible, not so much because of disagreements but because most of the time delegations from all of the states simply didn’t show up.

Congress occasionally did manage to pass policy, but it had no ability to levy taxes. It could ask the states to pony up their share, but the states rarely were interested in taxing their own residents to cover national bills. A decade after the Congress moved out of York, James Madison threw up his hands in a paper entitled “Vices of the Political System of the United States.” The “independent authority of the states,” he wrote, threatened to prove “fatal” to what the founders hoped the new nation could achieve.

Madison hoped that the new Constitution, written in 1787, would solve these problems. No sooner had the quills added the last jot to the document, however, than the states launched a series of objections. The citizens of Pennsylvania, now expanding past York into the frontier, had their own take on the question of gun rights, for example. They pressed for an amendment to the Constitution guaranteeing that “the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game.” Proposals flew back and forth among the states until the founders settled on perhaps the most tortured bit of constitutional law in the nation’s history: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The founders hoped that the new Constitution, launched with its Bill of Rights in 1789, would settle this question, among many others. Couldn’t a strong national government make important decisions on behalf of all citizens?

Of course, that didn’t happen. It proved difficult, right off the bat, to keep states from feuding with each other, sometimes violently. Just 15 years after the Constitution was adopted, for example, Georgia and North Carolina found themselves in a genuine battle — the “Walton War” — over where the boundary between their states ought to be drawn. (They’re still arguing about it, albeit with legal briefs rather than muskets.)

Decades later in the West, homesteaders and ranchers found themselves in the middle of battles over grazing rights and water. The 1892 Johnson County War erupted in Wyoming, involving not only gunslingers but also a woman who was lynched because of a false accusation of trading her favors for cattle.

These range battles became so rooted in legend that they provided the lyrics for one of the showstoppers in the Broadway musical Oklahoma!: “Oh, the farmer and the cowman should be friends,” went the song, with a theme more aspirational than descriptive. The reason was clear: “One man likes to push a plough, the other likes to chase a cow,” which meant that they fought over fences and water.

A New Ring for Battle

All of this, of course, is much more than allegory. Fast-forward to today. After years of hot temperatures and little rain, water wars are intensifying in the West. Along the California-Oregon border, fierce disputes have erupted over the flow of streams and canals. And it didn’t take the movie Chinatown to remind Los Angeles’ neighbors about the city’s insatiable thirst for their water.

Meanwhile, California has led the fight to attack climate change, while other states have fought back against the Golden State’s outsized role. The struggle over abortion policy has split the country for a half-century, with Mississippi’s precedent-setting Supreme Court case flying in the face of actions by other states to define abortion as a basic right. And when it comes to gun policies, in recent decades states have veered off in radically different directions.

A look back over American history shows that, since the days when York was briefly the nation’s capital, it’s been hard to build a national consensus behind national policy. The point of the Constitution was to replace the failure of the Articles of Confederation, but it simply created a new ring for battle, one that has been the center of conflict in America ever since.

But if there’s nothing new about the battles, it’s impossible to miss the fact that the struggles between the states are growing — and that there’s diminishing consensus about which policies should truly be national. There’s strong public support for strengthening the economy, reducing health-care costs, taming COVID-19, improving education and protecting Social Security, but consensus melts quickly away after that.

The nation’s rugged time under the Articles of Confederation shows what can happen when a true national consensus on key values is weak. Given the fierce struggles between the states over so many policy issues today, it’s worth puzzling over whether we’re drifting back to those contentious days again.

Much has changed in York since its brief time in the national limelight — among other things, it's now home to a giant Harley-Davidson factory — but with the states moving farther and farther apart on issues that cross their borders, the fissures that divided an infant nation in 1777 seem as wide as ever.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
Donald F. Kettl is professor emeritus and former dean of the University of Maryland School of Public Policy. He is the co-author with William D. Eggers of Bridgebuilders: How Government Can Transcend Boundaries to Solve Big Problems.
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