Continuity from the Articles
bobsheridan at earthlink.net
Thu Sep 23 09:04:48 PDT 2004
Ah, the irony produced by constitutional discussion.
Maybe there's some arguable continuity but we get to cherry-pick the
useful bits and reject what is no longer tasty.
I wonder whether we'd be better or worse off incorporating Canada.
When's the last time they messed up big-time?
Something tells me they want no part of us...
Matthew J. Franck wrote:
> I haven't read the article yet, though I look forward to it. My
> question is, if there is continuity from the Articles to the
> Constitution, is the offer still open for Canada to become the (now)
> 51st state? Or was that foreclosed by the Constitution's failure to
> mention it?
> Matthew J. Franck
> Professor and Chairman
> Department of Political Science
> Radford University
> P.O. Box 6945
> Radford, VA 24142-6945
> phone 540-831-5854
> fax 540-831-6075
> e-mail mfranck at radford.edu <mailto:mfranck at radford.edu>
> At 07:08 PM 9/22/2004, Calvin Johnson wrote:
>> I invite critique and controversy in reaction to my "Homage to Clio:
>> The Continuity from the Articles of Confederation into the
>> Constitution," 20 Constitutional Commentary 463 (2004), which can be
>> reached at
>> I would of course send the reprint to you all, personally, if only I
>> could afford it.
>> My best
>> Calvin Johnson
>> Abstract: The nature of the United States continued even as the
>> Articles of Confederation was replaced by the Constitution. The
>> Constitution is a radical document, but unstated assumptions
>> about political institutions continued from the Articles into the
>> Constitution. Only the provisions that were challenged or changed
>> were written down. Routine parts of what the Framers knew defied
>> Historical continuity explains why George Washington could be
>> President, even though Virginia had not ratified the Constitution
>> either when he was born or when the Constitution was adopted. The
>> United States was the same United States before and after
>> Historical continuity implies that the ban in the Articles of
>> Confederation on state discrimination against out-of-state
>> citizens by taxation or regulation is part of the Constitution,
>> although not stated. The norm was strongly felt, but unchallenged
>> and so not written down in the Constitution.
>> Historical continuity implies that Congress may commandeer state
>> officers as it did under the Articles. Tax requisitions were a
>> commandeering of state officers for federal benefit under the
>> Articles. The Framers assumed that requisitions of tax and
>> similar commandeering would continue under the Constitution.
>> Finally, historical continuity implies that Congress has the
>> general power to adopt all appropriate measures “for the common
>> Defence and general Welfare.” The debaters assumed that federal
>> powers would be legitimate even though they were not enumerated
>> so long as the powers fell appropriately within the national
>> sphere. They removed the requirement in the Articles of
>> Confederation that Congress have only the powers “expressly
>> delegated” to it, and they defended that removal through the
>> adoption of the Tenth Amendment
>> Calvin H. Johnson
>> Andrews & Kurth Centennial Professor of Law
>> The University of Texas School of Law
>> 727 E. Dean Keeton (26th) St.
>> Austin, TX 78705
>> (512) 232-1306 (voice)
>> FAX: (512) 232-2399
>> Website: http://www.utexas.edu/law/faculty/calvinjohnson/cv.pdf
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