Fwd: RE: Continuity from the Articles
Calvin Johnson
chjohnson at mail.law.utexas.edu
Fri Sep 24 14:51:07 PDT 2004
I do think that the international treaty perspective is
illuminating and helpful. It is not an expertise I can play with, but it
is important and I think your post is fascinating. I also think that it
does not fully replace the principle --maybe just an attitude -- that
changes in political institutions are necessarily incremental, whether we
want it or not, and that we need to presume continuity, but only as a
presumption. Thank you for your informative post.
>At 04:03 PM 9/24/2004 -0400, you wrote:
>>Prof. Johnson wrote: "Ensuring that the post-Constitution United
>>States was bound by the Confederation was an important example of the
>>principle of continuity. One of the purposes of the Constitution was to
>>enforce supreme federal law, including the Treaty of Paris, against the
>>states. The Anti-Federalists didn't like it, but the proponents of the
>>Constitution clearly had continuity of the Treaty of Paris in mind. For
>>that matter the Dutch and French treaties carried over.
>> Indeed for that application, you do not need a grand
>> theory: Pufendorf, Vattel and the intend of the Framers in specific is
>> sufficient.
>> But the grand principle does help beyond treaties: it helps
>> allow commandeering to continue, it keeps the strong principle that
>> American st! ates do not discriminate against other Americans alive
>> (even though they forgot to state it), and it allows George Washington,
>> and Thomas Jefferson, to be President.
>>
>>COMMENT: I don't think that one still needs such a grand
>>theory. Although I may be misunderstanding your points, didn't you
>>already point out that the Articles empowered Congress to
>>commandeer, and prohibited state discrimination? If so, then one can
>>apply the more simple international legal construction theory, viz., the
>>Constitution as a treaty must be construed in conformity with those
>>provisions of the Articles that were not superceded by the Constitution,
>>and that treaty obligations continue for states-parties.
>>
>>I also don't think that one needs the historical continuity theory to
>>explain how GW (and TJ?) constitutionally could become president. The
>>international legal construction of the U.S. explains this in a more
>>simple fashion without recourse to abstraction, such as "unstated
>>experiences and collective assumptions." The U.S. merely was an
>>intergovernmental organization (like the EU, UN, OAS, etc.) that enabled
>>persons to be citizens of it. Virginia's ratification was not needed for
>>GW to become president because he already was a U.S. citizen -- a
>>conclusion that we both share. The historical continuity model is
>>certainly intellectually interesting, but are judges and lawyers going to
>>use it? Wouldn't it be better to use what judges and lawyers are
>>somewhat familiar with, viz., legal instruments such as
>>treaties? Furthermore, does the historical continuity approach provide
>>rules of constitutional construction that ! are more determinate that
>>legal rules formulated in, e.g., case law, treaties, statutes, etc.?
>>
>>Prof. Johnson continues: "The status of North Carolina and RI from
>>1786 to their ratification is special. They are prodigal sons, always
>>welcome back without a vote in Congress, just by ratifying. But they
>>are not bound by the Constitution until they ratify, and that right does
>>make them outsiders as a matter of right, and at some point the prodigal
>>son can make the relationship true alienation if he wants it badly
>>enough. The Congress right off imposes imposts (Tariffs) as if North
>>Carolina and RI were aliens, and threatens even more, but that threat is
>>probably best understood as touch love to bring the prodigal son in
>>. They retained their special status and could become full states
>>without permission just by ratifying. Continuity in any event does not
>>settle all questions. It is just a matter of presumption, not from alw,
>>but from psychology. People and institutions continue, ! as Burke
>>correctly tells. Change is possible but only incrementally."
>>
>>COMMENT: Wow! Now, we have appeals to the Bible, Burke, and
>>psychology! Again, an international legal construction of the
>>Constitution and Articles provides a more simple explanation. North
>>Carolina had adopted the Constitution. Under the Object and Purpose Rule
>>of international law, a state that signs (i.e., adopts) a treaty must not
>>defeat the object and purpose of the treaty until it signals to the other
>>parties that it will not ratify the treaty. See Vienna Convention on the
>>Law of Treaties, art. 18. (To give a modern example, think of Colin
>>Powell's recognition that the U.S. could not violate the object and
>>purpose of the Treaty of Rome establishing the International Criminal
>>Court while the U.S. was still a signatory, and, consequently, Bush's
>>signature withdrawal and subsequent negotiation of article 98
>>treaties.) Although North Carolina continued to be a U.S. state-party,
>>it could not rely upon t! he Articles for its right to participate in the
>>new government under the Constitution because it has signaled its consent
>>that it would not defeat the object and purpose of the Constitution to
>>"form a more perfect union" and establish a new government. (BTW, the
>>object and purpose of treaties are usually found in the preambles of
>>treaties, such as the Constitution.)
>>
>>However, Rhode Island did not sign the Constitution; therefore, at least
>>initially, RI did not have the international legal duty to not defeat the
>>Constitution's objects and purposes. On the other hand -- and this is
>>more dispositive of the issue -- the nine-state ratification rule under
>>the Articles ensured that the Constitution as a treaty could come into
>>force and a new national government established-- even if only for nine
>>states so ratifying.
>>
>>Francisco Forrest Martin
>>
>>
>>At 08:44 PM 9/23/2004 -0400, you wrote:
>>>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 Cli! o 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 natio! nal
>>>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. -- t! hen
>>>Prof. Johnson's conclusion that Washington constitutionally 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: <mailto:chjohnson at mail.law.utexas.edu>Calvin Johnson
>>>To: <mailto:conlawprof at lists.ucla.edu>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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>>>(rightly or wrongly) forwa rd the messages to others.
>>
>>
>>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
>>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu
>>To subscribe, unsubscribe, change options, or get password, see
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>Please note that messages sent to this large list cannot be viewed as
>>private. Anyone can subscribe to the list and read messages that are
>>posted; people can read the Web archives; and list members can (rightly
>>or wrongly) forward the messages to others.
>
>
>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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