Thursday, March 31, 2005

God, the Articles, and the USA

I only just recently came across this post by Don Herzog (I don't read Left2Right much; I came across the post because Parableman linked to Right Reason on the post), and just had to say something, because the whole discussion does something that annoys me considerably. It ignores the Articles of Confederation. Believe it or not, we didn't just happen to come up with the Constitution immediately after the Declaration of Independence. When the Constitution opens, "We the people of the United States of America, in order to form a more perfect Union" a Union (called the United States of America) was already in place. The Constitution was put forward as a revision of that government; indeed, as any reader of the Federalist Papers knows, there was a controversy at the time over whether the Convention, which was formed in order to revise the Articles of Confederation, had the authority to propose such a massive revision (Madison responds in Federalist #40). Now, the relevance of this to the topic at hand is how the Articles end:

And Whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union. Know Ye that we the undersigned delegates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confirm each and every of the said Articles of Confederation and perpetual Union, and all and singular the matters and things therein contained: And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions, which by the said Confederation are submitted to them. And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.


This is particularly relevant, insofar as Herzog is rather strangely emphatic about the prologue of the Constitution; which explicitly presupposes the existence of the United States of America, which was created by the Articles of Confederation, which mention "the Governor of the World" as the one who inclined the hearts of the state legislatures to form the Union. What strikes me about the end of the Articles, though, is that it does not fall into Herzog's false dichotomy: either government comes from God or it comes from the people. It (rightly) avoids that trap. And it is an unresolved feature of our constitution whether the Constitution entirely replaces the Articles, or whether it should still be regarded as a revision of the Articles. (It is not an unresolved feature that has played much of a role in our history. But it has arisen at times; if I'm not mixing things up, for instance, Lincoln argued that the latter was true. This entails that anything in the Articles that the Constitution does not explicitly revise still stands. Since the Articles explicitly state that the Union shall be a perpetual union, no state could have the right to secede. Most people, as far as I can tell, don't take the Lincolnian route in viewing our Constitution. But nothing has ever happened to make Lincoln's interpretation impossible.)

In any case, my pet peeve is not Herzog's conclusion, but this continuing tendency to talk as if the Articles of Confederation never existed. Don't forget the Articles!

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