Historical correspondence · Updated interpretation
Articles of Confederation
The First Constitution and the Treaty Debate
2017 correspondence · Editorial update: October 1, 2026
An update to the 2017 correspondence
The correspondence below records a 2017 exchange with the National Constitution Center about its characterization of the Articles of Confederation as a treaty.
As of October 1, 2026, the Center’s online educational materials explicitly identify the Articles as the first American constitution. Its website also continues to host an essay by Richard Beeman emphasizing their resemblance to a treaty among independent states. These differing descriptions warrant explanation; the available published record does not establish a formal institutional retraction. [E1]
The historical question extends beyond terminology. The Articles organized a continuing government, assigned powers, imposed interstate obligations, established procedures for binding adjudication, and prescribed constitutional amendment. The Decree of Trenton and the western ordinances of 1784, 1785, and 1787 illuminate how that government operated—and where its authority and effectiveness were contested. [E9] [E14]
We preserve the original correspondence below as a record of the discussion. Our updated study examines the constitutional evidence alongside the compact and treaty interpretations.
January 19, 2017 · Naomi Yavneh Klos to Jeffrey Rosen
Jeffrey Rosen, President & CEO
National Constitution Center
525 Arch Street/Independence Mall
Philadelphia, PA 19106 January 19, 2017
Dear President Rosen:
Thank you for the introduction to Kerry Sautner, who arranged our exceptional National Collegiate Honors Council tour with Mark Kehres at the National Constitution Center. Mark is a charismatic speaker possessing an excellent grasp of the center and its interpretation of constitutional history.
We, however, were quite distressed that the National Constitution Center refers to the Articles of Confederation as a treaty in its exceptional stage performance and in the Annapolis Convention display, which states: “We fought a war under a treaty called the Articles of Confederation.” Moreover, the Articles of Confederation were enacted on March 1, 1781, and the last major war campaign ended with the British surrender at Yorktown on October 19th, 1781. The war was primarily fought under the acts and resolutions of the United Colonies and United States Continental Congresses and not the Articles of Confederation.
We do not understand why the National Constitution Center would purport such a position when your own online educational resource states otherwise (http://constitutioncenter.org/learn/educational-resources/historical-documents/articles-of-confederation) and the United States in Congress Assembled (USCA) resolution calling for the Philadelphia Convention states that the Articles of Confederation is a “Federal Constitution”:
Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several States be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the States render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.[1]
The Articles of Confederation was recognized as a federal constitution by the states, including, for example, Maryland, the last state to ratify, when, its “Act of Appointment of, And Conferring Powers in, Deputies from this State to the Federal Convention” affirmed that Maryland would join with other states “… in considering such alterations, and further provisions, as may be necessary to render the federal constitution adequate to the exigencies of the union” (emphasis added).
The term “federal constitution” was also utilized repeatedly by the U.S. government, in resolutions,[i] treaties (“That these United States be considered in all such treaties, and in every case arising under them, as one nation, upon the principles of the federal constitution”),[ii] in reference to finances (“The federal constitution authorizes the United States to obtain money by three means; 1st. by requisition; 2d., by loan; and 3d., by emitting bills of credit”)[iii] and in the debates of the congressional delegates:
A requisition of Congress on the States for money is as much a law to them as their revenue Acts when passed are laws to their respective Citizens. If, for want of the faculty or means of enforcing a requisition, the law of Congress proves inefficient, does it not follow that in order to fulfill the views of the federal constitution, such a change sd. Be made as will render it efficient? Without such efficiency the end of this Constitution, which is to preserve order and justice among the members of the Union, must fail; as without a like efficiency would the end of State Constitutions, which is to preserve like order & justice among its members. [iv]
Indeed, the U.S. founding acts and laws include a resolution empowering the USCA President to reconvene the “federal government” in New Jersey after he and the Congress fled Independence Hall from mutinous United States soldiers:
There is not a satisfactory ground for expecting adequate and prompt exertions of this State for supporting the dignity of the federal government, the President … be authorized and directed to summon the members of Congress to meet on Thursday next at Trenton or Princeton, in New Jersey. [v]
These recurrent references clearly indicate that the United States in Congress Assembled, created by the Articles of Confederation, considered itself a federal congress, operating a federal government, which was empowered by a federal constitution and not a treaty. We, therefore, respectfully request that you replace any references to the Articles of Confederation as “a treaty” to “a federal constitution.” If you believe you cannot make this change to your verbiage clearly supported by primary source documents, please explain why your scholars have determined this U.S. Founding document to be a Treaty rather than the first constitution of the United States of America. It does not render the Constitution of 1787 any less magnificent to recognize that its creation was prompted in part as a response to a very flawed federal constitution.
Sincerely,
Naomi Yavneh Klos
Professor Naomi Yavneh Klos, Ph.D.
Director, University Honors Program, Loyola University New Orleans
Chair, AJCU Honors Consortium
President-Elect, National Collegiate Honors Council
Original notes accompanying the letter
[i] USCA Journals, , March 15, 1787
[ii] USCA Journals, March 26, 1784
[iii] USCA Journals , February 3, 1786
[iv] USCA Journals, January 28, 1783
[v] USCA Journals, June 21, 1783
[1] United States in Congress Assembled Journals Manuscript (USCA), February 21, 1787, Resolution calling for a Philadelphia Convention to “render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.” –– United States National Archives.
Editorial notes: [E2] [E3] [E4] [E5] [E6] [E7] [E8] [E9] [E12] [E13]
January 24, 2017 · Michael J. Gerhardt to Stanley Yavneh Klos
Response forwarded by Jeffrey Rosen on January 26; arranged here by the letter’s date.
January 24, 2017
Professor Stanley Yavneh Klos
University Honors Program
Loyola University New Orleans
6363 St. Charles Ave.
Campus Box 75
New Orleans, LA 70118-6195
Dear Professor Klos:
As the Scholar in Residence, I wanted to respond to your January 19th letter to our President and CEO, Jeff Rosen. We are glad that you enjoyed your National College Honors Council tour of the NCC with Mark Kehres. We agree with your high praise of Mark. We are lucky to have him.
We also greatly appreciate your sharing your concerns about our statement that, “We fought a war under a treaty called the Articles of Confederation.” We’ve closely read your letter and its attachments and taken your concerns seriously. Historical accuracy is fundamental to the National Constitution Center’s mission to enriching understanding and dialogue about the Constitution and its history.
Our review of your documents and other materials relating to the Articles of Confederation confirm our understanding that, in a technical sense, they were a treaty. The Articles refer to themselves, in Article III, as a “firm league of friendship,” and a league was understood in both classical and the framers’ political thought as a type of treaty. Indeed, in Federalist Number 43, this is how James Madison refers to the articles.
The language that you have quoted was initially reviewed and approved by several prominent constitutional historians, including Gordon Wood, Akhil Amar, and the late Richard Beeman. In each of their highly respected studies of the origins of the Constitution, they refer to the Articles of Confederation as a treaty. For example, Professor Wood, in his seminal work, refers to the articles as “less than a national constitution than a treaty among independent states.” We understand that in other documents at the time the articles were sometimes referred to as a “constitution,” but, as we noted above, the articles do not call themselves a “constitution” but rather a “league” (which, unlike a constitution, is a subspecies of treaty). Even if the articles were a constitution (which, we think, could be disputed), we think the point remains the same -- they were still a kind of treaty. As Professor Beeman wrote, “The Articles of Confederation amounted to nothing more than a treaty among individual, sovereign states, and any such treaty, so long as the states retained their sovereignty, could never be the basis for a proper and durable union.”
We agree that the articles were not formally ratified until 1781. But, that does not take away their status as a treaty. Indeed, in Federalist 43, Madison refers to the articles as a “compact” and later writes, “A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or a treaty between the parties.” We further mention in our materials, as you note, that the articles were formally ratified in 1781. Therefore, we think we have made its status clear in our presentations.
Please let me know if you have other questions or wish to talk further about this. Like Jeff Rosen, Mark, and everyone else who works at the National Constitution Center, I am thrilled any time to talk with and learn from others who are as passionate about the Constitution as we are.
Very truly yours,
Michael J. Gerhardt
Scholar in Residence, National
Constitution Center, & Samuel Ashe
Distinguished Professor of Constitutional
Law, UNC-Chapel Hill
(919) 843-5600
gerhardt@email.unc.edu
January 26, 2017 · Jeffrey Rosen’s forwarding message
From: Jeffrey Rosen [mailto:jrosen@constitutioncenter.org]
Sent: Thursday, January 26, 2017 8:47 AM
To: stan@historic.us
Cc: roberttualaulelei@unl.edu; cdigiacomo@uschs.org; yavneh@loyno.edu; bickford@gwu.edu; kbowling@gwu.edu; Kerry Sautner; emn2109@columbia.edu; rkh2125@columbia.edu; Mark Kehres; Gerhardt, Michael J
Subject: Re: Attachment treatment of the Articles of Confederation as a TREATY
Dear Professor Klos,
Thank you for your letter, and for visiting the National Constitution Center. I’ve asked Michael Gerhardt, our scholar in residence, to respond to your thoughts about our characterization of the Articles of Confederation and his response is attached. Thank you again sharing your suggestions and for visiting the NCC; if we can continue to assist you during future visits, please let us know.
Jeffrey Rosen
President & CEO
National Constitution Center
525 Arch Street
Philadelphia, PA 19106
T: 215 409 6610
jrosen@constitutioncenter.org<mailto:jrosen@constitutioncenter.org>
January 31, 2017 · Naomi Yavneh Klos’s reply
From: Naomi Yavneh [mailto:yavneh@loyno.edu]
Sent: Tuesday, January 31, 2017 8:22 PM
To: Jeffrey Rosen
Cc: roberttualaulelei@unl.edu; cdigiacomo@uschs.org; bickford@gwu.edu; kbowling@gwu.edu; Kerry Sautner; emn2109@columbia.edu; rkh2125@columbia.edu; Mark Kehres; Michael J Gerhardt; stan@historic.us
Subject: Re: Attachment treatment of the Articles of Confederation as a TREATY
Dear Mr. Rosen and Professor Gerhardt,
Thank you for taking the time to respond to our concerns so thoughtfully. In addition to its erudite content, your letter, Professor Gerhardt, is impressive to our students as a model of respectful and engaged scholarly discourse. I will leave aside, for now, my own thoughts, and let you know that we are using your evidence and counter-arguments as an opportunity for further historical research and close textual analysis by the students from our NCHC "Partners" Group. Our plan is that these Honors students will then present the evidence from both sides to their Honors communities to facilitate engaged discourse and debate on these important founding documents.
As President-Elect of the National Collegiate Honors Council, I am in charge of organizing our national conference in Atlanta this November, where the students will present on their efforts and conversations. We hope that you will not only remain in touch with us as this project progresses, but will be able to participate in a panel and dialogue with these bright and highly-motivated undergraduates.
The conference is scheduled for November 8-12. Please let me know if this might be of interest, and thank you again for your response. The National Constitution Center is an outstanding resource, and we are honored by our conversation with you.
Best wishes,
Naomi Yavneh
Professor Naomi Yavneh Klos, Ph.D.
Director, University Honors Program, Loyola University New Orleans
President-Elect, National Collegiate Honors Council
Chair, AJCU Honors Consortium
Board Member, Society for the Study of Early Modern Women
Loyola University
6363 St. Charles Avenue, Campus Box 75
New Orleans, LA 70118
(504) 864-7330
The Loyola University Honors Community: Scholars for Justice in the Heart of New Orleans
Document images and educational videos
Images and original enlargement links are retained from the supplied page. Captions below are editorial descriptions, not new claims about manuscript provenance.
Related videos retained from the original page
These videos provide broader educational context. Their interpretations are separate from the preserved correspondence and the editorial notes.
Editorial notes and sources
E-numbered notes were added for this edition. They do not replace the letter’s original notes. Printed page numbers are used in citations to the congressional journals. OpenAI, ChatGPT, provided assistance with historical research, source verification, and HTML editing for this website
- E1. Current wording and the limits of the evidence. NCC staff, “10 reasons why America’s first constitution failed” (November 17, 2022), calls the Articles the first American constitution. Richard R. Beeman’s “The Constitutional Convention of 1787: A Revolution in Government”, still publicly available on the Center’s website when checked October 1, 2026, emphasizes their resemblance to a treaty. The January 19, 2017 letter already noted constitutional terminology in the Center’s online material. These records establish differing published descriptions; they do not by themselves establish a later formal retraction, the present wording of every museum exhibit or performance, or a causal connection between the correspondence and a revision. ↩
- E2. Adoption, authorization, and completed ratification. “Enacted on March 1, 1781” in the first letter is better expressed as “entered into force upon completed ratification on March 1, 1781.” Congress adopted the Articles November 15, 1777. Maryland’s legislature authorized subscription and ratification before its delegates signed on March 1. See National Archives, Articles of Confederation; Journals of the Continental Congress, 1774–1789 (hereafter JCC), vol. 19, p. 138–140 (Maryland act) and vol. 19, p. 223–224 (March 2 record of completed ratification). The letter’s wording is retained as historical correspondence. ↩
- E3. Yorktown and the end of the war. Yorktown was a decisive surrender on October 19, 1781, but it was not the legal end of the war, and fighting continued afterward. Peace was formally concluded in 1783. The first letter’s reference to the “last major war campaign” should be read as emphasizing Yorktown’s significance, not establishing the end of all hostilities. See National Archives, Treaty of Paris (1783). ↩
- E4. The convention resolution. The quoted congressional resolution was adopted February 21, 1787: JCC, vol. 32, p. 71–74, with the adopted text on p. 74. Its “federal Constitution” refers to the existing framework to be revised. The original letter’s note [1] is retained; the editorial citation here supplies a published primary-source edition. An image filename is not evidence of the document’s date. ↩
- E5. Instructions concerning treaties, rather than a treaty text. The “one nation” passage belongs to Congress’s consideration of instructions for commercial negotiations on March 26, 1784, not to an executed international treaty: JCC, vol. 26, p. 169–170. The source supports contemporary constitutional vocabulary, but the first letter’s introductory category “treaties” needs this qualification. ↩
- E6. A committee report on finance. The three means of obtaining money appear in a committee report entered February 3, 1786: JCC, vol. 30, p. 44–48, especially p. 45. It discusses existing powers and financial inadequacy; it is not a constitutional amendment or a separate grant of new authority. The letter’s source label is preserved. ↩
- E7. Debate notes are not an adopted resolution. The requisition passage is from James Madison’s account of his own remarks in the congressional debates of January 28, 1783. It should be cited as debate notes, rather than presented as enacted law merely because the discussion occurred in Congress. See Madison, “Notes on Debates in Congress,” January 28, 1783, a published transcription credited to Founders Online. The distinction strengthens source accuracy without changing the passage’s value as evidence of constitutional language. ↩
- E8. The June 21 resolution preceded relocation. The quoted resolution conditionally authorized the president, on the committee’s advice, to summon Congress to Trenton or Princeton if Pennsylvania would not provide adequate support. It was adopted while Congress was still in Philadelphia; the journal next records Congress at Princeton on June 30. The letter’s phrase “after he and the Congress fled” reverses that sequence. See JCC, vol. 24, p. 410–411. Its excerpt also omits the conditional opening; consult the full resolution before treating the excerpt as the complete operative wording. ↩
- E9. Constitution and compact terminology. The editors retain both letters’ categorical formulations as the authors’ arguments. This edition does not treat “constitution” and “compact” as mutually exclusive categories. The Articles organize institutions and delegated powers while retaining state sovereignty and describing a league. See Articles II, III, V, IX, and XIII. For the developed argument, see the main Articles study. ↩1 ↩2 ↩3
- E10. Madison’s treaty analogy in context. Federalist No. 43 considers how the Confederation could be superseded without every state’s consent. Madison invokes legislative ratification, reciprocal obligations, and breaches of compact. That context neither removes the treaty analogy nor makes it a complete account of the Articles’ governmental functions. Compare his discussion of constitutional limits on territorial administration in Federalist No. 38. ↩
- E11. Quoted scholars and institutional attribution. The statements about review by Wood, Amar, and Beeman, and the quotations attributed to Wood and Beeman, are reproduced as assertions in Gerhardt’s 2017 letter. The supplied correspondence does not provide book editions and page numbers for those quotations; this edition does not silently correct or independently authenticate their wording. Beeman’s currently hosted essay is separately linked in E1. Hosting a historical essay is not, by itself, proof of a new institutional declaration. ↩
- E12. The March 15, 1787 reference. Original note [i] points to a journal entry that includes New Hampshire’s convention-appointment resolution, with constitutional language: JCC, vol. 32, p. 116–117. That is a state document entered in the congressional record, not necessarily a national congressional resolution adopted that day. The February 21 congressional resolution is the more direct national example. ↩
- E13. Independence and the constitutional framework. The Articles did not first bring the United States into existence as an independent political entity in 1781. They supplied a written constitutional framework for an already declared union. See the Declaration of Independence and the Articles. Congressional institutions continued across completed ratification. The congressional president was a presiding officer; the later Constitution created a distinct executive presidency. ↩
- E14. Later research: adjudication and the ordinances. Trenton was an Article IX interstate judgment, final under that procedure, not a decision of every settler’s private title: JCC, vol. 24, p. 6–32. The territorial measures show substantial governing activity, while Madison disputed the adequacy of their constitutional authorization in Federalist No. 38. See the Northwest Ordinance and the linked main and Trenton studies for fuller documentation. These are later editorial additions, not claims inserted into the 2017 letters. ↩
- E15. Edition and preservation. Prepared October 1, 2026 from the supplied “AOC Constitution or Treaty.txt.” All four correspondence items, their supplied headings and signatures, and the first letter’s original notes are retained. Spacing, paragraph breaks, typography, and link presentation have been regularized; original grammar, historical assertions, and quotation wording are preserved. The unrelated capitals table is removed. The four original images and two video embeds are retained separately. E-numbered annotations are new editorial material, distinct from the first letter’s original [1] and [i]–[v] references. The edition is a transcription of the supplied webpage, not authentication of original email files. Research and editorial assistance: OpenAI, ChatGPT. ↩
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