Legal English

I. CONSTITUTIONAL HISTORY

At the time of the American Revolution, the fledgling nation seeking independence consisted of thirteen separate colonies. Brought together by their common opposition to the taxing policies of the British Parliament, the colonies began sending delegates to a Continental Congress in 1774. This arrangement was initially quite informal. Delegates were elected by theassemblies of their respective colonies. Meeting in Congress, they could vote requests that the various colonies raise troops or furnish funds, but the Congress itself possessed no direct authority to enforce its requests.

In 1777, before the Revolutionary War concluded, the Continental Congress moved to formalize the relationship among the colonies by proposing the Articles of Confederation,which were ratified by the assemblies of all thirteen states or colonies and took effect in 1781. Like the more informal scheme that had preceded them, the Articles established a confederation of equal states, each with one vote. The national government, such as it was, still had to look to the states to enforce its directives. If it wished to lay a tax, for example, it had to request the states toassess and collect it. The Articles carefully enumerated the purposes for which the states were united; any power not specifically given to the national Congress was denied to it. The Articles of Confederation did not create an independent executive branch, and there was almost no judicial system. For the Congress to act, nine states needed to concur in ordinary decisions. More fundamentalactions required unanimous consent.

As swiftly became clear, the government created by the Articles of Confederation was too weak. Although fighting with Britain stopped in 1781, and a formal peace followed in 1783, the European powers continued to pose threats that could be met only by decisive, coordinated action. At home, an economic downturn revealed the need for a national economic policyincluding a uniform currency and safeguards against inflation and nonpayment of debts.
To deal with these and related problems, the Continental Congress asked the colonies (or states) to send delegates to a convention in the summer of 1787 to draft proposed amendments to the Articles of Confederation. When the Convention met in Philadelphia, however, the delegates decided almost immediately to ignoretheir mandate and to draft an entirely new Constitution. The Convention also determined to ignore the Articles of Confederation insofar as the Articles forbade major changes in the scheme of national government without the unanimous approval of the thirteen states voting in Congress. Article VII of the new, draft Constitution provided that it would take effect on ratification by nine states andfurther directed that the ratifications should be by “conventions” of the people of the states, not by the state legislatures.

The decision of the Constitutional Convention to ignore or defy the Articles of Confederation – which were, after all, the then-prevailing “law” – is at least interesting in its own right and probably possesses enduring significance for American constitutional law. Werethe Constitution’s authors (or framers as they are more commonly called) and ratifiers (or those who voted to approve it in separate state conventions) “outlaws” in their own time? Why were they not obliged to follow the Articles of Confederation in all of their written detail? How could valid law, in the form of a Constitution, emerge from actions not authorized by prior written law? It is notenough to say that the framers decided to start over; surely not every group is entitled to “start over” whenever it feels like doing so – for example, by staging a coup or pronouncing itself not bound by current constitutional law. In thinking that they were entitled to ignore the written law of their time, whereas others living under the new Constitution would be bound by it, the framers and...