Compare and Contrast; The Articles of Confederation vs. The Constitution

The Articles of Confederation contained many flaws, some serious that if not corrected may have been fatal to the United States (Why the Articles of Confederation Failed). Upon the drafting of a new Constitution in 1787, the drafters took many of these lessons and short comings to heart, and corrected them in the new Constitution. Originally when the first Convention was called for in Annapolis in 1786, the intention was to simply alter and amend the Articles of Confederation. The poor showing in Annapolis in September 1786, with only New York, New Jersey, Pennsylvania, Delaware and Virginia sending representatives, led this convention to only recommend another convention in Ma, 1787. This Convention that was recommended for May 1787, to take place in Philadelphia, this became the Convention that drafted a new Constitution.

Just as had been tasked for the Annapolis Convention in 1786, the Convention in Philadelphia was similarly tasked by the Congress assembled to make recommendations to Alter and Amend the Articles of Confederation. This convention quickly realized that just altering or amending the Articles of Confederation would not suffice, and a whole new Constitution was written. The Articles of Confederation served as the base idea for the Convention, and many parts or influences of the Articles can be seen in the Constitution, but it is the differences that set the Constitution apart.

(As a note for this article, this is comparing the Articles of Confederation to the Constitution prior to the Constitution being amended. Some of the items discussed have since changed by amendment, and will be noted if superseded. ~~ The term “National Government” is used to compare the Congress Assembled under the Articles of Confederation to the Federal Government under the Constitution. Using “Federal” would be an improper comparison for the Articles of Confederation since it was not a Federal Government rather a Confederated Government.)

Eleven significant differences will be shown between the Articles of Confederation and the Constitution. Though there are many differences between the two, these are the most significant in how they changed the structure and power of both the State and National Governments. It was these differences that brought the United States from a loose collection of Thirteen Independent States, to a Nation of Thirteen States, retaining their individual sovereignty with a strong National Government. Several of the reasons why the Articles of Confederation failed are discussed here (Why the Articles of Confederation failed).

Consenting Power
Type of National Government
Mode of Representation in the National Government
Division of Powers in the National Government
Power of Congress
National Government revenue raising
Enforcement of Federal Laws
Judiciary and resolution of Cases and Conflicts
Prohibitions to Congress
Prohibitions and Requirements of the States
Amending the Articles of Confederation and Constitution

Consenting Power

Articles of Confederation

The Legislatures of each State. No specific means of choosing who would vote on ratification.

Constitution

Conventions in the States. Delegates chosen by the people for the express purpose of considering ratification¹.

In June of 1776, even before the American Colonies Declared Independence from Great Britain, a committee was formed in the Continental Congress to draft up a Constitution for the impending new Nation². This Committee drafted what would become the Articles of Confederation. The Congress agreed to the committees proposal on November 15, 1777 and submitted it to the States for ratification at that point. The Articles of Confederation does not specifically state how the Articles would be ratified, but it is indirectly implied it would be the Legislatures of the many states in Article XIII.

“And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained.”

The Delegates for each State would sign the Articles, but Delegates could only do as their Legislature directed. If their Legislature did not provide for them to sign or vote for such an agreement, the Delegates would wait until they received such instruction from their State. This by default meant the ratification required the consent of the State Legislatures to instruct their Delegates to sign the articles as being Ratified by that State. This presented the issue of the people voting for ratification of a National form of government for the States and the People, were not chosen specifically for that purpose, but rather where elected for the general legislative power of the State. This resulted in the people not having a direct method of influencing the type of government that would be put in place.

Also, even with out it being mentioned in the Articles itself, the ratification of all Thirteen States was required to place them in effect. This is implied through the Amendment provision requiring all Thirteen States. The result was four more years (in addition to the 2 1/2 years to draft and agree in Congress) until the Articles of Confederation became ratified in 1781, though the Congress operated under its basic structure until then.

The Constitution on the other hand specifically addressed how it would be ratified in Article VII.

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

This bypassed the State Legislatures, and went to the people for the consent to govern. The State Legislatures would provide for the election of the delegates to a ratification convention. This resulted in the people of that State (who could vote according to that State’s Law), directly choosing the delegates who would decide the question of ratification for their State, direct populous participation.

The Constitution also provided that only Nine of the thirteen States ratification was required to place them into effect. This enabled a government to be formed with the ratifying States while the remainder continued to debate ratification. This resulted in a much quicker transition to a new government, being presented to the States in September 1787, ratified by the 9th State on June 21, 1788³ and the First Congress being seated on March 4, 1789⁴ with Eleven States in all. This was less than two years from the beginning of drafting to implementation, for less time than it even took to draft the Articles of Confederation.

For the Articles of Confederation the consent of power was derived from the State itself, while the Constitution, the consent was coming from the People to Govern, the People were granting the power to a government, as is expressed in the first seven words the preamble; “We the People of the United States”

Type of National Government

Articles of Confederation

Constitutional Confederacy

Constitution

Constitutional Federal Republic

Under both the Articles of Confederation and Constitution, the government was operating under a form of government, that was codified in writing which was required to be followed. This makes both a Constitutional Government. The structure of power between the two governments was however significantly different from each other.

Merriam-Webster defines a Confederacy as⁵:

a league or compact for mutual support or common action
the body formed by persons, states, or nations united by a league

For the United States the Confederacy was a loose association of the States under a common Government. Each State retained its individual sovereignty, surrendering very little of it to the common government. In regards to domestic issue the National Government had very little power and could not compel any State to do anything, most of its power was more in regards foreign relations for the benefit of all. In the end the Individual States held the final power.

For the Constitution, the structure is that of federalism. Power is divided between the National and State Government more equally, to ensure one part did not contain to much. From this Federalist structure, power would be again divided among branches of Government, separating power into distinct components. This separation of power between the National and State governments ensured the National government had the sovereignty it required to execute its duties, while also ensuring the same for the States, without interference from the other power. The Constitution was the Supreme power over both.

Mode of Representation in the National Government

Articles of Confederation

Indirect popular Representation. Representatives where appointed by an elected State Legislature.

Constitution

Direct popular Representation. Both the People and the States are represented. The People by popular vote (House of Representatives), the States by appointment by an elected State Legislature (Senate).

Under the Articles of Confederation, delegates to the Congress Assembled were appointed as the Legislatures of each State chose for one year terms. No direct provision was provided on how the Legislatures choose their delegates, but the common practice was the State Legislatures themselves chose them. Each State shall appoint between Two and Seven Delegates, and no delegate shall serve more than three years in any six year period in the Congress. (Article V)

delegates shall be annually appointed in such manner as the legislatures of each State shall direct,

no person shall be capable of being a delegate for more than three years in any term of six years

For the Constitution there are two modes of representation, one based on the population of the State, and one fixed at two for each State. How the members of Congress are chosen is also different for one of the Houses (House of Representatives) compared to the Articles of Confederation, as well as length of terms in both. The Constitution also does not prohibited or limit the amount of terms a member can serve as the Articles did.

Another significant difference between the Articles of Confederation and the Constitution. In the Constitution each member has one vote in both the House of Representatives and Senate, under the Articles of Confederation the State has one vote, and that vote was determined by the vote of the State Delegation. A State could end up with a Vote of Yea, Nay or Split (does not count in final total).

	Congress Assembled (Articles of Confederation)	House of Representatives (Constitution)	Senate (Constitution)
Method Selection	State Legislatures	Popular Vote	State Legislatures⁶
Membership based on	2-7 per State	Population (census)	2 per State
Length of term	1 year	2 years	6 years
Term limit	3 years in 6	None	None
Vote	1 Vote per State	1 per member	1 per member

Under the Articles of Confederation, only the States were directly Represented in the Congress. The people were indirectly represented by their ability to vote for their Legislature, who in turned appointed the delegates. Under the Constitution both People and State were directly represented by popular vote and appointment, in the structure of Federalism.

Division of Powers in the National Government

Articles of Confederation

Unicameral Body vested with all powers of the National Government

Constitution

Three Distinct Branches of power of the National Government, a Bicameral Legislature, an Executive and a Judiciary

Under the Articles of Confederation, the entire base of power for the National government was vested in one body, the Congress Assembled. All decisions and relations for the United States derived from this one body, the matter of law, foreign relations, settling disputes and all others came from the Congress. Congress did not have the ability to enforce Laws, and very limited ability judge on law or disputes. The Congress could appoint Courts on piracy and crimes on the High Seas, and also appoint Courts or Commissions to resolve disputes between States, and individuals from different States, but no dedicated judiciary was provided for.

The Constitution changed this, by dividing the power of the National government into three distinct branches of government, each with specific charged duties (a concept Charles Montesquieu proposed in the Spirit of Laws). The Legislature composing of the House of Representatives and Senate, is to make Laws. The Executive with the President to enforce Laws, and the Judiciary with the Supreme and inferior Courts to Judge on Law. In addition each of these three branches was given a mechanism to check the power on the other two, to prevent encroachments into the powers of the other branches.

	Articles of Confederation	Constitution
Distinct Bodies of power	Congress Assembled	Legislature, Executive, Judiciary
Send and receive ambassadors	Congress Assembled	Executive (President)
Make treaties	Congress Assembled	Executive with Senate consent
Power to make Law	Congress Assembled	Legislature (Congress)
Power to enforce Law	None provided	Executive
Power to Judge Law	Congress limited to appoint courts for piracy and high seas crimes	Judicial (Supreme and Inferior Courts)
Judge disputes between States	Congress appoints courts and commissions	Judicial
Judges disputes between citizens of different states	Congress appoints courts and commissions	Judicial
Legislative check on Executive	N/A	Veto-Override, Impeachment
Legislative check on Judicial	appoints courts and commissions	Confirms Judicial appointments
Executive check on Legislature	N/A	Veto power
Executive check on Judicial	N/A	Nominates appointments
Judicial check on Legislature	Court and commission rulings final	Judicial review
Judicial check on Executive	N/A	Judicial review

With the Articles of Confederation, the very weak power of the Congress and the States being the final authority in enforcement and judging laws, did not enable it to have the ability for abuse of power. The Constitution with its much stronger National Government, did enable the National Government to have enough power to be abusive and oppressive in its execution .In order to prevent an abusive or oppressive National government the power was divided, in addition to the power separation with the States in Federalism, among three separate branches, each with specific powers and checks on power to prevent abusive or oppressive use of power.

Power of Congress

Articles of Confederation

Specific enumerated powers. Limited power to regulate Indian and Foreign Commerce; No power to regulate interstate commerce; other limited powers

Constitution

Specific enumerated powers. Power to regulate Indian, Foreign Commerce and interstate commerce; other limited powers

The enumeration of powers to Congress is something that carried over from the Articles of Confederation to the Constitution. Many of the powers however differ from one to the other, while some remained the same. Among the powers that were included in the Constitution that was not in the Articles of Confederation is the power to tax, regulate interstate and foreign commerce, make uniform laws on Bankruptcy, raise and support an Army and Navy, establish inferior courts, and the power to carry all the powers into effect. These were all powers the Congress Assembled lacked under the Articles, and the inability to do so were some of the most major short comings in the Articles, directly leading to several crisis or problems in the United States.

Highlighted Green in Enumerated powers indicates common power between documents, not including any other limitations that may be imposed

Required Nine States to vote “Yea”	Articles of Confederation (Article IX)	Enumerated Power	Constitution (Article I Section 8)	Limited by other clause(s)
	No	Taxes, Duties, Imposts, Excises	Yes	Yes⁷
Yes	Yes	Request funds from the States	No
Yes	Yes	Borrow Money on credit	Yes
Yes	Yes	Appropriate Money	Yes	Yes
	No	Regulate Commerce among the States	Yes	Yes
Note 8	Yes	Regulate Commerce with the Indian tribes	Yes
	No	Regulate Commerce with Foreign Nations	Yes
	Yes	Sending Receiving Ambassadors and Ministers	No
Yes	Yes	Enter Into treaties	No
	No	Rules of Naturalization	Yes
	No	Laws of Bankruptcy in the US	Yes
Yes	Yes	Coin Money & Regulate its value	Yes
	Yes	Fixing weights and standards	Yes
	No	Laws to punish Counterfeiting	Yes
	Yes	Establish Post Offices and Roads	Yes
	No	Promote progress of Science and Arts	Yes
	No	Establish copyright/patent Laws	Yes
	No	Establish inferior Courts	Yes
	No	Define Piracy and High Seas Crimes	Yes
	Yes	Appoint courts for Piracy crimes on the high seas	No
Yes	Yes	Declare War	Yes
Yes	Yes	Grant letters of Marque and reprisal	Yes
	Yes	Make Rules on Captures on Land and Water	Yes
	No	Raise and support Armies	Yes
Yes	Yes	Provide for a Navy	Yes
	Yes	Rules for Armed Forces	Yes
	Yes	Request men from the states for the US Armed Forces	No
	No	Call for raising the Militia to execute Laws or suppress insurrection and invasion	Yes
	No	Provide for organizing, arming and discipline the Militia for the US	Yes
Yes (Only for Commander in Chief)	Yes	Appointment of Officer in the Militia and Armed Forces in service of the United States	Yes
	No	Exclusive rights in a Federal District	Yes
	Yes	Establish courts or commissions for interstate disputes	No
	Yes	Appoint members to committees	Yes
	Yes	Select a President of the Congress Assembled, House Speaker, or President Pro-Tempore	Yes
	Yes	Appoint a committee to act on behalf while in recess	No
	No	Make laws necessary and proper for the foregoing powers	Yes	Yes

The additional powers granted under the Constitution, mainly came from lessons learned from the Articles of Confederation.

Taxing

Ensured steady flow of revenue. Under the Articles, Congress’ request for funds from the States were not filled as needed.

Regulating Interstate and Foreign Commerce

Prevents the trade wars between States. States under the Articles would impose tariffs on goods from other States. States could not negotiate a favorable agreement with a foreign nation that may be at the detriment of another State.

Make Laws on Bankruptcy

Bankruptcy laws were inconsistent through out the States under the Articles, thus seizure laws were different. It was the Laws regarding the seizure of property in Massachusetts that lead to Shays’ rebellion in 1786-1787.

Raise and Support an Army and Navy

Under the Articles, the Congress could make ships, but could not raise an Army directly. the Congress could request from the States a specific amount of men for an Army, which the States would provide. In the event of needing these forces, considerable time may elapse before they could be brought to bear, and the State would be left to defend themselves, such as in Shays’ Rebellion. Under the Constitution the congress could directly raise and provided for an Army and a Navy.

Establish a inferior courts.

Under the articles of Confederation the only courts that existed were convened by Congress and dealt with Piracy, crimes on the High Seas, and to settle disputes between the States or individuals of different states. The Constitution provided for a Judicial Branch and Supreme Court, but the make up of the inferior courts was as directed by the Congress. This allowed the Congress to ensure sufficient courts existed for the Judicial Branch to carry out its duty.

Several powers exist between the two documents, but many of these are somewhat limited by either requiring Nine State Votes in the Articles of Confederation, or limited by other clauses in the Constitution, such as Article I Section 9 (prohibitions to Congress). Of all the powers between the two documents only seven carried to the Constitution much as they had been in the Articles, with out requiring Nine States or limited by other clauses in the Constitution.

Fixing weights and standards
Establish Post Offices and Roads
Rules for Armed Forces
Make Rules on Captures on Land and Water
Appointment of Officers in the Militia and Armed Forces in service of the United States (except Commander in Chief for the Articles of Confederation)
Appoint members to committees
Select a President of the Congress Assembled, House Speaker, or President Pro-Tempore

The powers that carried over without restrictions, have very little effect on either the States, regard the armed forces of the United States, Post Offices, and selection of legislative committees and Officers. The change in the powers to Congress from the Articles of Confederation to the Constitution, expanded the powers and role of Congress in the domestic and foreign spectrums.

National Government revenue raising

Articles of Confederation

Requested funds to be provided by the States

Constitution

Limited power to tax⁷

One of the most significant short falls in the Articles of Confederation was the inability of the National Government to raise its own revenues. The Congress assembled had to request from the States funds for the National treasury. The States never appropriated the requested funds to the Congress as seen in the Congressional Journal April 24, 1784 for example.

The requisitions of October 30, 1781, for eight millions of dollars, and of October 16, 1782, for two millions of dollars, have been so partially complied with, and in such unequal proportions, that Congress can retain no hopes of their full execution

This one example shows the first two years of the Articles of Confederation, the States failed to pay what the Congress had request. This same days journal entry also indicates that the States had also not paid the 1783 funds as well. Much of the money requested was to pay for War and prior year debts, $706,974.00 of $2,986,952.33 (23.6%) outstanding at this time, plus another $1,000,000.00 still outstanding from 1782 and 1783. Of the money unresolved by Congress 57.1% was for outstanding debt (war debts and prior year debts). This would not improve over time for Congress, and the United States continued to lag on payments of debt and loans including foreign Nations.

Under the Constitution, in Article I Section 8 Congress was granted the power to Tax.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The Congress could raise revenue for the operations and costs for the National Government for use in “the common Defence and general Welfare of the United States”. But this ability to tax was not complete, and at the whole will of the Congress, and was restricted in various ways. Also seen in that clause is,

all Duties, Imposts and Excises shall be uniform throughout the United States

Congress could not target any one State or individual or group on Duties, Imposts and Excises, the Duties, Imposts and excises had to be uniform. What was paid to import goods in one State would be the same as in all States. Article I Section 9 also includes further restrictions on taxation.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.⁷No Tax or Duty shall be laid on Articles exported from any State.

Congress was forbidden from taxing profits (Capitation or capital Tax) or any other direct tax (such as individual income), unless these were conducted in proportion to the census. These taxes would be based on the population of the State, not the wealth of the business or individual (this was superseded by the 16th Amendment). Congress was also forbidden from taxing any exports at all, while it did maintain the ability to regulate it. These allowed the Congress to forbid exports, but not tax them to make them prohibitive or as a source of revenue.

A final restriction on taxing is in Article I Section 7

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Any bill on taxation must originate from the House of Representatives. The significance of this is the House of Representatives was the House elected by the people, and not appointed by the State legislatures as in the Senate⁶. So unless the “People’s House” (common name for the House of Representatives) proposed a taxing bill, no new taxing law could be passed. But once the House of Representatives passed a taxing bill and sent it to the Senate, the Senate was allowed to alter it to their desires.

The ability of the National government to raise a steady and predictable flow of revenue, and not rely on the States ensured the National government could carry out its assigned duties without interference of relying on another entity, such as the States.

Enforcement of Federal Laws

Articles of Confederation

National government had no power to enforce its laws. Relied on the States for enforcement.

Constitution

Executive charged with the enforcement of Laws.

With the Articles of Confederation the only law enforcement of any sort was up to the states, with the sole exception of piracy and crimes on high seas. What ever laws, acts, agreements or treaties the Congress Assembled passed, it was solely up to the States to enforce them, their was no provision for the National government to do this. This resulted in the States only enforcing the laws, rules or treaties it wanted to, and disregard or just not enforce the ones it did not like. This would prove to be a national embarrassment, since treaties were not guaranteed to be enforced, States and foreign Nation negotiated their own agreements, foreign nations did not hold the Congress in high regard to being able to honor its agreements. This also carried to laws, acts, and the requisitions for monies from the states, the States honored them only if they felt obliged to, Congress had no means to enforce or compel the States to honor any agreements.

With the Constitution, the Executive Branch in the President was given the power to enforce laws in Article II Section 3

“he shall take Care that the Laws be faithfully executed,”

With this power, the President may ensure laws are enforced by his Branch through the appropriate department or departments⁹. With the Constitution being the Supreme law of the Land as stated in Article VI, and the ability of Congress to make the laws “necessary and proper for carrying into Execution the foregoing Powers”, the power to enforce the Laws of the United States is provided for.

Article IV in the Constitution also provides that the United States shall,

protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

This gives the United States and the President and Congress prior to event approval the ability to repel any invasion and upon the request of the appropriate state authority, to assist in confronting Domestic Violence in or among the States, powers that did not exists in the Articles of Confederation. This allows the United States to quickly uses available assets to confront each of these without having to convene Congress and consider the matter first and vote on action, such as with what happened during Shays’ Rebellion, or British impressment of US mariners. Not entirely a Law enforcement capability, but an important power to confront foreign or domestic threats against the People, State, or the United States.

Judiciary and resolution of Cases and Conflicts

Articles of Confederation

Congress could appoint a court or commission for interstate disputes of both States and Individuals, piracy and crimes on the High Seas, and appeals for captures on the High Seas.

Constitution

Dedicated Judicial system with original jurisdiction to resolve all interstate disputes, and appellate jurisdiction for intrastate disputes.

Much like its power to enforce laws and such, the Articles of Confederation were nearly silent on the judging of laws. The Articles did provide that Congress could convene courts and commissions in very specific instances, Piracy, Crimes on the High Seas, Disputes between States, and disputes between individuals of different States (Article IX). Only the courts on Piracy and crimes on the High Seas judged crimes and could impose sentence, in disputes between states and individuals the courts or commissions were merely binding arbitrators. The courts and commissions on disputes were selected by the involved parties prior to, or chosen by a process of elimination between the parties. The court or commissions finding were final, and Congress and the United States could have no stake in the makeup of the court or be a beneficiary to any decision by the court or commission, nor shall a state be deprived of territory. The Congress also could form a court or commission of appeals regarding captures on the High Seas, provided no member of Congress is appointed to any of the courts as a judge.

The Constitution provides for a dedicated Court system in the United States. Article III provides for a Supreme Court and inferior Courts as Congress shall direct. This Judicial power shall extend to,

all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.¹⁰

Article III goes onto to further describe what type of power the Supreme Court will have.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In matters that concern ambassadors, and other US Officers the Supreme Court has Original jurisdiction. This is to mean these cases will originate in the Federal Judicial system, and will not be prosecuted or otherwise taken up by the State Court Systems were they may have happened. For all other cases, the Federal Judicial system is a course for appeals in those cases, which by the use of the phrase, “Cases, in Law and Equity, arising under this Constitution”, covers any crime or civil suit that may occur in the United States. This allows the defendants, plaintiffs, and States appeal to the Federal Court system, and the Federal court System can determine off of both Law and Fact. This is to mean for “Law”, is the law valid, does the law violate a more supreme law of the United States, such as Federal Law, Treaty or the Constitution. For”Fact”, this means the it can hear an appeal to ensure the merits of the case were properly heard and applied and not contrary to an existing or more supreme law. The Congress also has the ability to exceptions or other regulations to this appeals process, with the power of Article I section 8 Clause 18 to bring them into effect (To make all Laws which shall be necessary and proper for carrying into Execution…all other Powers vested by this Constitution in the Government of the United States).

The Constitution ensures both that the Laws and acts of the United States are enforced and judged, without relying on the States to do it for them. This is a summary of some of the differences from the Articles of Confederation to the constitution, but is not all inclusive to Article III of the Constitution.

	Articles of Confederation	Constitution
Laws of the United States	Not provided for (States Judicial System)	Federal Judicial System
Piracy and Crimes on the high Seas	Congress Appointed Court or Commission	Federal Judicial System
Disputes between States	Congress Appointed Court or Commission	Federal Judicial System
Disputes between individuals of different states	Congress Appointed Court or Commission	Federal Judicial System
Appeal of Law, equity or fact	Not provided for (States Judicial System)	State and Federal Judicial System
Appeal of Capture	Congress appointed Court of Appeal	Federal Judicial System
Involving US Officers	Not Provided for	Federal Judicial System

Prohibitions to Congress

Articles of Confederation

What is not expressively permitted by the Articles of Confederation; Committee of the States could not exercise power which required the consent of Nine States.

Constitution

Specific prohibitions to Congress.

Only one prohibition is listed for the Congress Assembled in the Articles of Confederation is found in Article II.

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.

All powers not specifically grated to the Congress Assembled by the Articles of Confederation are prohibited to the Congress. All powers not specifically granted to the Congress Assembled, were powers of the States. In addition one other prohibition exists, but not to the Congress Assembled, but to the Committee of the States found in Article X.

provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled be requisite.

The Committee of the States, which represents and acts for Congress while the Congress is in recess is forbidden on acting on any measure which would require the assent of Nine States in the full Congress Assembled. Most acts of Congress of significance required Nine States assent, which left the Committee of the States basically covering the day to day operations and administrative tasks of the United States.

The Constitution on the other hand includes several prohibitions to Congress found in Article I Section 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. (Expired by nature on clause in 1808)
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Many of these prohibitions directly effect one or more of the powers granted by Article I Section 8 of the enumerated powers. Article I Section granted the Congress in some aspects broad powers, but a desire was there or needed to limit how far those powers may reach or go. This is not listing of the only powers of what Congress may not do and is not to be read as “if it is not prohibited it is allowed”, but to prohibit certain actions from power it was granted to do by the enumerated powers. Here is a clause by clause example of how it limits an enumerated power.

Congress was given the ability to regulate foreign commerce, but it was needed to prevent the Congress from prohibiting or restricting the importing of slaves for 20 years. This clause was needed to ensure Slave State support ratification of the Constitution. Without these States support, the Constitution would not have been ratified by half the Nation, and the Articles of Confederation was nearing total failure by the time of the convention. This 20 year stay allowed the time for these States to adjust prior to the probable closure on this trade by Congress in 1808.
In the event of Rebellion or Invasion as public safety required it, Congress could suspend habeas corpus (proof of body, proving cause for holding a person in detention). Congress could not use any other power enumerated, such as the exclusive exercise of power over a Federal District or laws “necessary and proper for carrying into execution the foregoing powers” to suspend habeas corpus. It could only be suspended during insurrection or rebellion.
Congress could not by an act declare someone, group or other entity to be in violation of a Law and pass a law which punishes that person, group or entity (Bill of Attainder). Nor could Congress pass a Law whose empowerment is retroactive and can be enforced for acts of the past, prior to the law having been enacted (ex post facto). An example of one that would cover both is, such a declaring a week prior an act on the high seas, and today to declare it to be that of piracy (a power granted to Congress in Article I Section 8), and provided a means for punishment and authorizing a rule for its capture. The Ex pos facto is passing a law, that allows for it to be punished, when the happened before the law was passed. the Bill of Attainder is Congress declaring it to be a crime, and providing for a means of punishment (capture). The role of determining guilt is solely in the realm of the Courts and not the Legislature.
Congress is granted the power to tax, but it may only place a capital or direct (income) tax in proportion to the population of the States. this is to prevent a targeted tax at any one state or group of people, that could be used as a means of forceful influence on that state or group to act as Congress desires.(Superseded by the 16th Amendment)
Congress is granted the power to tax, but it is forbidden from taxing exports. This is to prevent one industry or good from being targeted which may be used to forcefully influence that industry to act as Congress desires, or give benefit to a competitor. It still retains the power to regulate foreign commerce, so it retain its ability to prevent or limit the export of certain goods, it just may not tax them.
Congress has the ability to regulate interstate commerce and place duties imposts and excises, but it may not make laws, regulations, duties, excises or imposts which would give preference to one state or another. Nor may Congress allow for the placement of any duties, excises or imposts on products going from one state to another or through another state.
Congress is provided with the ability to do many things not only in the enumerated powers, but in the formations of the inferior courts, creation of Executive Departments as well for example. Money from the treasury may only go to and be used for these uses as appropriated by Law. Money may not be pulled from the treasury for any other reason, nor by any other branch or government entity. This ensures Congress is the only one in charge of the Nations money, and it will publish its financial records as well, just as it must also publish its journal as stated in Article I Section 5.
Congress(Senate) has the power to consent to appointment of Officer of the United States, but it shall not grant any one a Title of Nobility. This prevents a hereditary status to persons, and prevents creating a class or aristocracy system. It also prevents any Officer of the Government from accepting the same, Office, emolument or gift from a foreign Nation by virtue of their position, unless the Congress gives consent for it.

The prohibitive powers in the Constitution were not meant to be the only things prohibited to the Congress, but rather to prohibit certain aspects of the power that they were granted. The Articles of Confederation simply stated all powers not granted to Congress were forbidden, while the Constitution does not state the same it limits the powers it was granted. The lack of the an expressive clause of reserving powers not expressively delegated to the Congress to the States and the People, caused six states to demand such a declaration during their ratification conventions, and resulted in the 10th amendment being proposed in 1789 and ratified in 1791.

In addition to Article I Section 9, a several more prohibitions are mentioned in the Constitution that also apply Congress.

Article IV: “no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
Article IV: “nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
Article V: “no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article” (Forbidding Congress from restriction the importation of slaves).
Article V: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Article VI: “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

These additional prohibitions apply to powers that are included in the Constitution, but not directly related to enumerated powers, or are to prevent Congress or the Government from doing very specific things that was felt necessary to prevent outright.

Prohibitions and Requirements of the States

Articles of Confederation

Specific prohibitions and requirements of the States.

Constitution

Specific prohibitions and requirements of the States, and general prohibitions applying to both the National and State Governments.

Prohibitions

Both the Articles of Confederation and the Constitution made prohibitions of specific things to the States. In the Articles of Confederation specifically stated in Article II what ever power was not granted to the National Government, was possessed by the States and the people. The Constitution did not directly state this, but understood to mean this through the enumerated powers, but was later amended in 1791 to also make the same declaration. With both documents the States retained a vast amount of power, power which could be used to the detriment of the people, other States or the Union as a whole. Both the Articles of Confederation and Constitution sought to limit this possibility of abusive power in clauses prohibiting the States from certain actions.

For the Articles of Confederation the prohibitions are found in Article VI, and the Constitution most are found in Article I Section 10, but other general prohibitions which also applied to the States can be found in Article I Section 9 and Article VI.

Prohibitions	Articles of Confederation	Constitution
Send or receive Ambassadors	Prohibited	Prohibited
Enter into foreign agreements (treaty, alliance, confederation)	Prohibited	Prohibited
Person holding any Office of profit accepts any gift, emolument or title from a foreign state	Prohibited	Implied (Article I Section 9)
Grant any titles of nobility	Prohibited	Prohibited
Suspend Habeas Corpus	Not prohibited	Implied (Article I Section 9)
No two or more States may enter into a compact without consent of Congress	Prohibited	Prohibited
Lay imposts, duties that interfere with treaties of the US	Prohibited	Prohibited
Lay imposts, duties on imports or exports without Congress’ assent	Not prohibited	Prohibited¹²
Lay Duty on Tonnage	Not prohibited	Prohibited
No vessels of war may be kept accept what is allowed by Congress	Forbidden in Peace-time	Forbidden in Peace-time
No body of Force (army) accept what is allowed by Congress	Forbidden in Peace-time	Forbidden in Peace-time
Engage in was without consent of Congress, unless actually invaded	Forbidden in Peace-time	Prohibited
Commission Ships	Forbidden in Peace-time	Prohibited
Grant Letters of marque or reprisal	Forbidden in Peace-time¹¹	Prohibited
Emit Bills of Credit	Not prohibited	Prohibited
Make any tender other than Gold and Silver for debts	Not prohibited	Prohibited
Coin Money	Not prohibited	Prohibited
Pass Bill of Attainder Laws	Not prohibited	Prohibited
Pass Ex pos Facto Laws	Not prohibited	Prohibited
Law impairing obligations of Contracts	Not prohibited	Prohibited
Religious test as a qualification for Office	Not prohibited	Prohibited

All of the prohibited items from the Articles of Confederation carried over to the Constitution. The Constitution restricted a few of these even more so than under the Articles, and also added several more. Many of the added prohibitions addressed various problems that were part of the Articles, or were responsibilities taken upon the National Government solely. Under the Constitution only the United States Government could engage in war at all, the States could not. The Congress could call upon the Militias for service under the United States, but a State could not on its own send its own troops or forces into war NOT under the Control of the National Government, unless that State was actually invaded. However this does not prohibit the States from using its Militia for Domestic disturbances within its own State, and does not require the auspices of the National Government. States are also forbidden from building their own army or navy without the consent and limits of Congress. This is what provides the States the ability to have a State National Guard, but only in numbers allowed by Congress. Nothing forbids the States from having a well-regulated, armed and disciplined Militia.

States cannot emit Bills of Credit. States cannot borrow to pay debts, this prevents the States from from becoming indebted as occurred throughout the States under the Articles of Confederation. States may not produce coin (or money) as also occurred under the articles, where money was good only in one State and could not be used across state lines, but States were permitted to use Gold and Silver bullion to pay debts, since this always has value wherever it is used. Just as Congress could not, the States could not pass a Bill of Attainder (the legislative body declaring something as a crime and punishing it) or ex pos facto laws (declaring something in the past a crime and holding those persons on trial or accountable). Laws could not be made, which would impair or breach a contract. Legislative bodies under the articles had passed laws, to cause lawful contracts to become null at the expense of one or all parties or to the benefit of the State. No religious tests could be used for public officials. This was to prevent any jurisdiction from requiring certain religious beliefs to hold office, as had occurred under the Articles.

These items were intended to prevent the States from using their power to deprive inhibit or obstruct other States or the National Government in the lawful use of their powers.

Requirements

Though the States in both documents retained a large amount of power for themselves, both the Articles and Constitution also provided certain basic requirements the States must do, most for the benefit of their people or to protect other States.

Requirements	Articles of Confederation	Constitution
Keep a well-regulated and disciplined militia with ready supplies and arms	Required	Not required
Privileges and immunities of Citizens of the several States	Required	Required
Honor public acts, records and judicial proceedings of other States	Required	Required¹⁴
Extradition of Criminals on demand from another State	Required	Required
Republican form of Government	Not required	Required
All debts, contracts, and engagements prior to adoption will be honored	Required	Required¹³
State and US Officials bound by Oath or Affirmation	Judges/Commissioners Only	Required¹³

Of the requirements under the Articles only the the requirement of having a militia was not carried over, this mainly due to the fact the United States could raise its own army and navy. However the Constitution also does not forbid the states from having a militia, in fact it is provided for indirectly in the Constitution and specifically protected in 1791 by the 2nd Amendment. Only two additional requirements were included in the Constitution, each state had to have a Republican form of Government. By this point 11 of the 13 States had Constitutions that provided this, Connecticut and Rhode Island continued to operate under their 17th Century British Charters, but they provided for a form of a Republican Government. Also included was the requirement for all Officers in the United States and the States to take an oath to the Constitution., which is established as the supreme law. The only oaths required under the Articles of Confederation of Judges and Commissioners for the courts and commission set up by the Congress Assembled, and the oath was to try the case impartial and on fact, not to the Articles of Confederation.

These prohibitions and requirements ensured the States could not interfere with the business or power of the the National Government or the States, while also providing for basic protections or prevent the States from doing several acts. Some of these acts protected other governments, while some were designed to prevent aristocracy and protect the people, confirm allegiance to the Constitution, and prevent to issues that arose under the Articles of Confederation.

Amending the Articles of Confederation and Constitution

Articles of Confederation

Required consent of Congress (majority vote) and the Unanimous vote of all State Legislatures

Constitution

Four possible methods available; A two-thirds vote of each house of Congress or application by the States for an Amendment Convention (which would require a majority vote to send the proposed Amendment to the States) and a three-fourths vote of State Legislature or State Conventions.

Of all the differences between the Articles of Confederation and the Constitution, perhaps none is a important as the change to amending the documents. Amending the Articles was nearly an impossible task, and never occurred while in effect from 1781-1788. As Article XIII states, in order to amend the Articles of Confederation, first the Congress assembled had to agree to the amendment. Since no specific requirement is mentioned, and Article IX does not state it is an act that requires Nine States, a simply majority can pass it in Congress., this did occur for numerous proposed amendments. From here the most difficult part of the amending process happens, the proposed amendment must be approved by all the State Legislatures. This requires that every legislative body in every state legislature agree to the amendment. During the Articles of confederation 21 individual chambers existed among the Thirteen States¹⁵, a state legislature could not be considered to agree to the proposed amendment unless both houses (if bicameral) agreed to the amendment. As you can imagine the incredible task of getting 22 of 22 legislative bodies to agree on anything (1 Congress and 21 States chambers) proved a fruitless endeavor. Even early on in the Articles problems were discovered, amendments proposed, but none ratified, for example two ratified by Congress on August 7, 1786¹⁶.

Art. 14. The United States in Congress Assembled shall have the sole and exclusive power of regulating the trade of the States as well with foreign Nations as with each other and of laying such prohibitions and such Imposts and duties upon imports and exports as may be Necessary for the purpose; provided the Citizens of the States shall in no instance be subjected to pay higher duties and Imposts that those imposed on the subjects of foreign powers, provided also, that all such duties as may be imposed shall be collected under such regulations as the united States in Congress Assembled shall establish consistent with the Constitutions of the States Respectively and to accrue to the use of the State in which the same shall be payable; provided also, that the Legislative power of the several States shall not be restrained from laying embargoes in time of Scarcity and provided lastly that every Act of Congress for the above purpose shall have the assent of Nine States in Congress Assembled, and in that proportion when there shall be more than thirteen in the Union.
Art. 17. And any State which from time to time shall be found in her payments on any Requisition in advance on an average of the payments made by the State shall be allowed an interest of six ------ per Cent pr. annum on her said advanced sums or expences and the State which from time to time shall be found in arrear on the principles aforesaid shall be charged with an Interest of six ------ per Cent pr. annum on the sums in which she may be so in arrear.

Both of these amendments (among several proposed) would have worked toward fixing the issues that caused the Articles of Confederation to fail. But the impossibly difficult process of amending the Articles, allowed even the smallest interest against the proposed amendment from being ratified.

The Constitution made this process easier, but by no means easy. Unlike the Articles of Confederation which had only one method of ratification, the Constitution in Article V provides for four possible methods of amending the Constitution.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

By giving four different methods, this provides means to ratify an amendment of one power base (the States or the National Government) without requiring their full consent to do so, and also provides a means for the people themselves to have a direct part in the amendment process. But it also makes it difficult enough where it would under any method, require a large consensus to enact at, and prevent or at least minimize the occurrence of arbitrary or possibly debilitating amendments.

Methods for Amending the United States Constitution¹⁷

Proposing method [Conventions are made up by popularly elected delegates]	Ratifying Method	Power base(s) not included	Amendments using this method
2/3 of each House of Congress	3/4 of State Legislatures	The People	1-20, 22-27 (26 total)
2/3 of each House of Congress	3/4 of State Conventions	State Legislatures	21(Once)¹⁸
2/3 State Legislatures petition for Convention, Convention proposes amendment to the States	3/4 of State Legislatures	Congress	Never used
2/3 State Legislatures petition for Convention, Convention proposes amendment to the States	3/4 of State Convention	Congress (State legislatures partial by not requiring the full 3/4)	Never used

With providing four different methods, at least One method exists which is a mean to bypass one of the three bases of power, The People, the States or the National Government. Also no One method allows any one power base enact an amendment on its own, though the last listed is as close as one can get in using only the people, it still requires the State Legislatures to call a Convention, which in turn is chosen by the People.

By allowing these four methods, this acts as another check on both the power of the National Government, where the People and States can propose an Amendment to check desired National Power. The States may be checked by the Congress and the People for similar reason, and the Congress and States can act without using the people as well. These various means, give any two power bases the ability to make the desired changes, but difficult enough where only a strong consensus between them will succeed.

This change to the Amendment process gives the Constitution the ability to adapt to changes or wants in power and government. But its still difficult process prevents the whim or emotion of the moment from being enough to enact it, since any amendment will take time to gather all the votes it needs and emotion would pass, but determination wouldn’t. It requires a significant majority to pass any amendment, but it also prevents a small minority from blocking them as what occurred under the Articles of Confederation.

In the seven plus years under the Articles of Confederation, with all its know shortfalls it was never once amended. Under the Constitution less than three years after the first Congress was seated 10 amendments had been ratified, with another 4 years later. So far the Constitution has been Amended 27 times. Some changes were very significant, the manner the President is elected, the abolishment of Slavery, and prohibition. Others were less apparent or or have less impact in government or the peoples everyday or structural behavior. This simple but very eloquent change allows the Constitution to adapt as it is needed, by changing what it is and allowing it to be what is needed, thus ensuring its longevity and relevance., this very inability was probably the single biggest flaw that caused the Articles of Confederation fail, IT COULD NOT CHANGE from what it was, to what it was needed to be.

1: Delegates being chosen by the people, the Ratification debates of New York for example states in the first paragraph “in order to be submitted to a Convention of delegates, chosen in each state by the people thereof, in conformity to the resolves of the Convention, made and provided in that case”. http://cid-649d663783fb9377.office.live.com/self.aspx/.Public/State%20Ratification%20Debates/New%20York.pdf

2: http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc0058))

3: Ratification Convention of New Hampshire : http://cid-649d663783fb9377.office.live.com/self.aspx/.Public/State%20Ratification%20Debates/New%20Hampshire.pdf

4: http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(hj0011))

5: Merriam-Webster Dictionary: http://dictionary.merriam-webster.com/dictionary/confederacy

6: Superseded by 17th Amendment

7: Direct taxing was superseded by 16th Amendment, but limitations on exports still is prohibited by Article I Section 9.

8: Congress could not regulate commerce originating from within a State to the same state, and could not regulate contrary to exiting state laws. Article IX

9: Article II Section 2 provides the the Congress by Law vest the appointment of such inferior Officers they think proper to the President, courts of law or Department Heads. The President may with the advice and consent of Senate may appoint all other Officers of the United States. This establish the means to appoint persons to Executive posts, while the actual posts names are not directly named. The mechanism to appoint officers and department heads implies the notion that the positions may also be formed by law in Article I Section Clause 18 (To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof). The existence of these posts is again mentioned in Article I Section 6 prohibiting members of Congress from being appointed to them if their emoluments have been increased during their current term in Congress.

10: 11th Amendment prohibits the citizens of one state to sue a different State, establishing this sovereign immunity for the States.

11: Article VI allows for letters of marque and reprisal if “such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise”.

12: Article II Section 10 provides the following exceptions: “except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress”.

13: Also applies to Congress

14: Article IV Section 1 gives the Congress the ability to regulate this: “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof”.

15: Eight of the Thirteen States had Bi-Cameral Legislatures with the state constitutions that were in effect [Delaware Constitution, Maryland Constitution, Massachusetts Constitution, New Jersey Constitution, New York Constitution, North Carolina Constitution, South Carolina Constitution, Virginia Constitution]

16: http://teachingamericanhistory.org/library/index.asp?document=1587

17: When the States call a Convention, no precedent exists, but Congress would have to direct for some method of the people to elect delegates, either by state with each state having the same amount of delegates, state allotment of delegates based on the census, or nationally elect the delegates to the Convention to propose and amendment; For State Conventions each State Legislature will determine on its own the method of the people electing their Delegates for their State Conventions.

18: http://www.usconstitution.net/consttop_acon.html