It has been quite a while since I have posted here. The majority of my writing has been, as ardent readers no doubt know, at Ius & Iustitium. I would not want to neglect the readers of Semiduplex, though. To that end, I offer a follow-up to Anglo-American Originalism: A Satire, published in May 2020 at The Josias.
I have been following the debate over Adrian Vermeule’s Common Good Constitutionalism with great interest. Ever since the publication of his essay in the Atlantic, Vermeule’s approach to constitutional interpretation has been one of the hottest topics in legal circles. Originalist legal academics have spent considerable energy opposing Vermeule’s theory. They have presented various objections of varying degrees of coherence, though none seems conclusive. Even Amy Coney Barrett took the occasion of a memorial post for a mentor to come out against it. For his part, Vermeule has answered his critics in various places, and even as I write this a symposium, at Harvard, hosted by the Harvard Journal of Law and Public Policy, will address common-good constitutionalism is taking place tomorrow.
The originalists are I think missing altogether an important aspect of our Constitutional landscape, namely that the Constitution was adopted by way of a procedure that was not authorized in the Articles of Confederation. The Articles of Confederation were adopted in November 1777 and became effective on March 1, 1781. According to the history one learns in school, the Articles of Confederation were an unworkable mess that hamstrung the federal government from doing things everyone agreed that it should do. So they came up with the Constitution, which replaced the Articles of Confederation, and that has been the operational document for the Republic since 1789 (as amended).
The problem becomes clear upon a quick review of the Articles of Confederation, which I doubt anyone has read (if at all) since school. If you need a refresher, here goes. Article XIII of the Articles of Confederation establishes the procedure for lawful changes to the Articles and provides:
Every State shall abide by the determinations 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.
We can get a quick idea of the original semantic meaning of this text by consulting an old friend of any originalist: Noah Webster’s 1828 American Dictionary of the English Language, which defines “perpetual” in the first place as “Never ceasing; continuing forever in future time; destined to be eternal; as a perpetual covenant; a perpetual statute.” He also defines “inviolable” as (in the second place) “Not to be broken; as an inviolable league, covenant, agreement, contract, vow or promise.” And he defines “alteration” as “The act of making different, or of varying in some particular; an altering or partial change; also the change made, or the loss or acquisition of qualities not essential to the form or nature of a thing.”
Article XIII is clear: the Articles were to be observed without being broken forever, and any “alteration” had to be agreed to “in a congress of the united states” and then “confirmed by the legislatures of every state.” Webster’s definition suggests that, in America at about the time of the Articles of Confederation, an “alteration” was understood as something touching upon a particular but not the form or nature of a thing. The form or the nature of the United States as established by the Articles of Confederation would be, then, “never ceasing; continuing forever in future time” and so forth.
And it is clear that the Articles could not be amended or otherwise changed by custom or some parallel usage. Article XIII provides the sole means of “alteration” of the Articles, which were otherwise to be inviolably observed in a perpetual union. While custom may well be a source of law, an interpreter of law, and an abolisher of law on Thomas Aquinas’s account, it has nothing to do with the procedure established in Article XIII. When, however, the current United States Constitution was proposed, it was submitted for ratification in a manner that was inconsistent with Article XIII of the Articles of Confederation. Article VII of the Constitution states: “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”
We know that the ratification of the Constitution proceeded along the lines set forth in Article VII. The states convened ratification conventions, which, at length, ratified the Constitution. One might take the resolution in September 1787 of the Congress transmitting the Constitution to the states as the sort of approval of “alterations” envisioned by the Articles, if the Constitution represented an alteration as the term would have been understood. But it doesn’t matter if it was: Article XIII is clear—the state legislatures, not conventions, must assent unanimously to any alteration of the Articles. None of this 9/13ths business. Some number of states could make a side deal, of course, but that would be nothing to do with the United States.
The originalists have established that the procedure outlined in Article XIII is not merely binding as a semantic matter but also as a moral matter. Recall, as certain originalists have reminded us, that Thomas Aquinas holds that a law “nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata”—”is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (ST I-II q.90 a.4 co.). The Articles of Confederation were therefore lex in the classical conception, since they were an ordinance of reason for the common good, made by him who has care of the community, and promulgated. The authority of the lawgiver in the case of all leges must be considered, we are reminded, and the authority of the lawgiver is owed obedience (ST II-II q.104, esp. a.2 co.).
It is unavailing to contend, as one might at this point and as James Madison did in Federalist 40, that there is some other arrangement that will achieve the ends of the Union better than the Articles of Confederation. The lawmaker behind the Articles chose to convey its judgment about the best way to achieve the ends of the Union through language that was, as the originalists have informed us indefatigably, understood a certain way by its contemporaries. The semantic content cannot be ignored or escaped. In fact, the semantic content of the leges as it would have been understood by a contemporary is how we determine how we obey the lawgiver. And Webster offers a clear picture of the semantic content of Article XIII.
To propose a change in the Articles of Confederation separate and apart from the procedure outlined in Article XIII, to say nothing of pursuing the course outlined by such a proposal, is to disobey the authority of the lawgiver. James Madison’s arguments in Federalist 40, therefore, are not only beside the point; they run the risk of immorality. Congress, in the resolution of February 21, 1787 called for a convention to determine “such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” Such a resolution in and of itself, however, was insufficient to authorize the plan of wholesale replacement urged by Madison in Federalist 40.
And Madison, I think, frankly admits as much. He concludes Federalist 40 with a veritable ode to disobedience of the letter of the lex in the name of ius and the bonum commune:
The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America.
Such rhetoric would not be out of place in the writings of any adherent to common-good constitutionalism. But if it did appear there, it would no doubt be met with the charge that it is wholly inapposite. We owe obedience to superiors and their authority, and in this case the superior, through Article XIII, issued a lex expressing its considered judgment that a certain procedure for alteration (but not replacement) of the Articles of Confederation is the lawful means of alteration. Madison’s argument was therefore a case for disobedience, a case for tearing up the Articles of Confederation. To put it another way, “confidential servants” of the United States owe obedience to the authority of the legislator just as much as judges do.
Now, someone rooted in the classical tradition might object and say that everyone since 1787 has acted in accordance with the understanding that the Constitution, not the Articles of Confederation, was the foundational document for the federal government. Indeed, one may say that almost every aspect of our political and legal existence is predicated on an order under the Constitution, not the Articles. But the natural reply is this: so what? Article XIII leaves no room for custom and no room for what amounts to reliance interests. One may reply further that the supposed reliance is actually one act of disobedience to the authority that promulgated the Articles after another.
In other words, Madison’s arguments in Federalist 40 are precisely the sorts of arguments that are inadmissible under the natural law insofar as they counsel disobedience to the authority of the lawmaker of the Articles. The question for originalists, therefore, is not how a given provision of the Constitution is to be interpreted, but whether the Constitution should be interpreted at all. Under the principles advanced by the originalists against Vermeule’s Common Good Constitutionalism, it seems to me that there is a strong case that the Constitution was not properly adopted and that the Articles of Confederation remain the governing instrument for the Republic, which does not include most purported states, including Indiana.
The originalists’ blindness to this problem is surprising, since the principles they have marshaled against common-good constitutionalism provide a clear exposition of precisely the issue with the adoption of the Constitution against the clear lex of Article XIII of the Articles of Confederation. I wish I had a good idea of where to go next. But it is, I confess, not my primary concern. For the moment, I am going to be reading the Northwest Ordinance and any other relevant acts of the Continental Congress with great attention to try to figure out how local government in what used to be Indiana works.