Continuity from the Articles

[Francisco Martin]

I have just finished reading Prof. Johnson's article, and I urge others to read it. It's quite good.  Although I agree with Prof. Johnson's conclusions regarding commandeering, state discrimination, unenumerated powers, and George Washington, I have to say that I think that his somewhat abstract "historical continuity" theory fails the test of Ockham's Razor.  A more simple explanation and justification is based on an international legal construction of the Articles of Confederation, the Constitution, and the U.S.  

To argue that the Constitution should be interpreted in light of the Articles of Confederation, one need only appeal to the long established international legal rule requiring the continuity of treaty obligations (See Samuel Pufendorf, 8 Of the Law of Nature and Nations, ch. ix, § 8 (1672) (recognizing continuity of treaty obligations); Emmerich de Vattel, 2 The Law of Nations or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereign § 191 (1758) (same)).  Those provisions of the Articles not superceded by the Constitution continue to bind the U.S.' states-parties under international law.  Furthermore, the Articles could have represented an American customary international law with which the provisions of the Constitution (which is a treaty) must be construed, according to international law. No inspiration from Clio is necessary.

Furthermore, I have to take issue with Prof. Johnson's argument that the national government under the Articles continued over to the Constitution.  I think that it is best to think that there was a change in government because the national government constituted by the Articles included representation of all thirteen states; whereas the Constitution provided for the possibility that not all thirteen states would ratify and be represented.  Furthermore, if the national government under the Articles did not change upon the Constitution coming into force, as Prof. Johnson argues, how could Rhode Island and North Carolina not be allowed to be members of this purportedly continuing national government even if they did not ratify the Constitution?  On the other hand, if one recognizes that both the Articles and Constitution as treaties created different governments for the same intergovernmental organization -- viz., the U.S. -- then Prof. Johnson's conclusion that Washington con!
 stitutionally could be president remains valid. (It may be helpful to analogize the U.S.'s governments to the different EU governments that have been established over the years by different treaties.)  It also explains how RI and NC could remain part of the U.S. but not be allowed to participate in the new national government. (It's comparable to OAS' suspension of Cuba in participating in the OAS government for failure to observe its treaty obligations, yet Cuba is still an OAS state-party.)

Francisco Forrest Martin
President
Rights International, The Center for International Human Rights Law, Inc.


----- Original Message ----- 
From: Calvin Johnson 
To: conlawprof at lists.ucla.edu
Sent: 9/22/2004 7:09:12 PM 
Subject: Continuity from the Articles


        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  http://www.utexas.edu/law/faculty/calvinjohnson/HomageToClio.pdf     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 articulation.  
                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 ratification.  
                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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