the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.And serving as the supreme law governing the United States of America while the Constitutional convention occurred, and which indeed authorized that convention, and thus conveying sovereign authority to the Constitution, even to this day, is the Articles of Confederation and Perpetual Union, which according to it's terms was proposed for ratification
the ninth Day of July in the Year of our Lord one thousand seven Hundred and Seventy-eight, and in the Third Year of the independence of America.So it is conclusive that each of these documents, both codified as 'Supreme Law,' indicate that the nation for which they applied, began operation in the year 1776. It therefore is a small leap to understand that both documents refer to the certain sovereign authority reasoned into being under the terms of the Declaration of Independence as their own respective sources of authority.
But today there are certain highly respected legal scholars, who occupy elevated positions within the 'contemporary' American constitutional law community, scholars who dispute the direct implications contained in these documents, and instead offer that the nation that existed once the Constitution became ratified, is not the same nation at all that existed under the Declaration of Independence, or the Articles of Confederation. And so at this point in the series, we are looking at those arguments, and examining their veracity. And the reason that this issue is important is that the answer to the question before us, whether America is a Christian nation, hinges, at least partly, upon the truth of these matters.
Stepping once again within the pages of the book, America's Constitution: A Biography, authored by esteemed Yale constitutional law professor, Akhil Reed Amar, let's dispel a few more of the author's supporting arguments. On page 9 Professor Amar attempts to destroy the credibility of the Declaration of Independence itself, as an imperfect tool to fulfill its stated objectives, writing
Yet the Declaration only imperfectly acted out its bold script. Its fifty-six acclaimed signers never put the document to any sort of popular vote.In a similar reference on that same page, Professor Amar indicts the credibility of Articles of Confederation, maintaining that
This document was then sent out to be ratified by the thirteen state legislatures, none of which asked the citizens themselves to vote in any special way on the matter.Now Professor Amar draws no specific conclusions from those statements. Even so, viewed in his context, the author attempts to plant the implication that, by some unnamed standard, a vote of popular opinion was necessary in order to ratify each those documents. And according to that theory, because these documents were not put to a democratic vote among all the citizens of the colonies or states represented, he questions the validity of any authority that sprang from each.
But both of these documents plainly state that ratification by the people by popular vote was not necessary, and that the individuals who signed those documents did so with authority. In the case of the Declaration, that document plainly states its source of authority, each signer acting with the “authority of the good People of the Colonies.” Today, we must assume that those people the signers represented duly authorized their representatives to do what they did in July of 1776. If that were not the case, then of course the independence of the United States of America never happened and America is still under the authority of the crown of England. And according to the AoC, the signers who affixed their names to that document claimed to be, "the undersigned Delegates of the States." There is no evidence to the contrary, and only evidence supporting, that those signers were duly authorized to act for their respective states. And each state legislature, representing every state citizen, acted to ratify the signatures on both documents. Therefore, any statement implying that as a result of a presumed lack of standing of its signers, the Declaration of Independence, or the Articles of Confederation, were not fully legitimate, necessarily draws on standards that do not apply to those documents. Both documents indicate that the respective peoples represented at these proceedings authorized their representatives to act in their place, which is exactly what they did. And in neither instance is there any supporting evidence which indicates that representation of the people was not fully authorized. And indeed, no question ever was, or ever has been, called on the authority if these documents, which question, answered in the author's favor, might place the truth on the side of Professor Amar's position.
Delving further into Professor Amar's supporting arguments, on page 12, regarding the Constitution he states,
In deed as well as word, the Preamble stood for ongoing popular sovereignty…Even more dramatically, the Preamble by its very deed implicitly affirmed that the People’s right to amend ultimately required only a simple majority vote.Very simply, that statement is unsupported. No reasonable and unbiased person reading the Preamble of the Constitution would necessarily draw that inference.
And on page 12, Professor Amar attempts to make the case that the Declaration of Independence only sanctions “the Right of the People to alter or abolish a government” if that government had “grossly abused their powers.” A plain reading of the terms of the declaration demonstrates that this assertion is not true. Under the Declaration, the People have the endowed right, from God, to “institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Under that principle, the People’s “Safety and Happiness” is a primary concern for government to consider. Therefore, any government that is destructive of the People’s safety or happiness can justifiably be “altered or abolished” as well. In the particular case before them, merely because the founders only cited instances in which the King’s government had grossly abused its powers, thus becoming tyrannical, the founders in no manner ruled out the People’s Right to alter governments for lesser offenses. Therefore, Dr. Amar's statement in the next paragraph, “Unlike the Declaration, the Constitution did not purport to show—because it did not need to show—that the regime it was amending was tyrannical,” follows a false premise. And for that reason, any and all of his arguments that build on that remark are left unsupported.
A final argument against a continuity of America's national identity that we will explore is Professor Amar's notion that the Articles of Confederation was NOT a constitution of sorts, but was instead a treaty among sovereign states. If it can be shown that the Articles of Confederation was a treaty, rather than a constitution, then that information would support the claim that the United States of America rebooted as a new and different nation than any that had ever existed, noting that it would have sprang forth from a non-nation and become a new nation under the terms of the Constitution.
To dispute any notion that the AoC was a treaty document, one only needs to read the document. A treaty document would state that it is a treaty. The Articles of Confederation makes no such statement. The term, 'treaty' cannot be found within its terms.
And secondly, to save us from even inferring that the AoC was a de facto treaty, although not directly stated, is the requirement that a treaty be enacted between or among sovereign states, states which are free and independent to act, to form alliances, to enact treaties, and thus also to remove themselves from treaties enacted. However, under the terms of the AoC, agreed among all of the thirteen states, those states forever left behind the sovereignty that they possessed prior to that time. Under the terms of that document, the union formed under the Declaration of Independence, became "perpetual," each state forever plighting troth to all others in the union. Article XIII confirms that the states which came together under the AoC no longer were fully sovereign states, free and independent to go their own ways, stating the following:
Article XIII. Every State shall abide by the determination of the united States in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State.
Article XIII of the AoC confirms that the union existing under its terms could not be broken; it would live in perpetuity, and no state would in the future would possess the authority necessary to leave that union, unless it first received permission by the sitting congress, which permission must then be confirmed by the legislatures of every other state in the union. Because, as we have learned in this series of articles, the authority of the Constitution depends upon authority conveyed to it from the Articles of Confederation, those articles must be fulfilled, even today. If that were not to occur, a breach of contract would manifest, and the union would dissolve as a result. But because ultimately, the Constitution WAS ratified unanimously, as the AoC required, and because no state that has come into the union has ever successfully left without permission, there has never been a breach of the terms of the Articles of Confederation, and the union today is the same union, under the same national identity, as it was since 1776.
And because the states which entered into the Articles of Confederation lost certain of their sovereignty in the process, and agreed to become subject to the authority of each and every other state within that union, that fact disqualifies the notion that the Articles of Confederation was a treaty document. That fact leaves us with the understanding that the union that existed under the terms of the Articles of Confederation could not have been a multilateral treaty organization. And that fact disproves Professor Amar's most significant and straight-forward argument that a breach of contract occurred as the Constitution became ratified, which if so would have lead to a discontinuity in national identity under the new Constitution.
And incidentally, it was the language of Article XIII of the Articles of Confederation on which President Lincoln would at least partially rely when he assumed authority to save the union after hostilities broke out, which hostilities ramped into the American Civil War. President Lincoln explains that theory to congress, in special session, on July 4, 1861. That address, the validity of which supports the conclusion of continuous national identity for the United States America since 1776, will be the subject of our next installment.
Are we learning anything folks?