Tennessee Law Review
This Article seeks to support that position with an argument in three parts. Part I describes the conventional historical picture of the period and the major weaknesses of that picture. The received account—which sees a “critical period” of chaos brought to an abrupt end by the Constitution—is not just a selective rendering of the facts, but also constricting to both historical and legal insights in a variety of areas. By obscuring institutional continuities and interpreting political debates primarily as ideological contests, the conventional view has (1) limited the ability of historians to draw useful connections between related events (like the compromises in the Continental Congress and the ones at the Philadelphia Convention), and (2) wholly blinded constitutional lawyers to the extent of important data that the Confederation period offers for the interpretation of the Constitution. Some of the most familiar parts of the Constitution, including the Supremacy Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause, were drawn directly from the Articles of Confederation, while many of the additional textual powers granted to the new government were ones that the old government had been exercising in practice. Yet the resulting interpretive possibilities have been largely ignored, because the conventional account has been unable to accommodate these facts.
Part II of the Article illustrates some of the weaknesses of the existing paradigm through a new consideration of the drafting of the Articles of Confederation. Subpart II.A sets forth a brief chronology of the proceedings as the Articles passed through the Continental Congress. Subpart II.B describes the interpretations that prior authors have given to these events and critiques them as inadequate to account for the known facts.
Subpart II.C puts forward a new interpretation, supported by a detailed examination of the congressional debates and roll calls on the Articles. This account challenges both those previous writers who have seen the drafting process as the collision of coherent, opposed factional blocs, defined by either ideology or region, and those who have seen it as wholly incoherent. If one examines the debates on an issue-by-issue basis, a repeated pattern appears: the delegates divide initially on the basis of the interests of their states, and then unite, on the basis of shared ideological premises and the practical need for consensus, to reach pragmatically acceptable compromises.
The modest conclusion, set forth in Part III, is that the more accurately we recapture the full texture of the circumstances under which the Constitution was written, the better we will be able to understand it.
Eric M. Freedman,
Why Constitutional Lawyers and Historians Should Take a Fresh Look at the Emergence of the Constitution from the Confederation Period: The Case of the Drafting of the Articles of Confederation, 60 Tenn. L. Rev. 783
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/62