Prof. Somin writes: > 1. The Articles of Confederation expressly state that they form a > "perpetual union" and that each of the 13 states "retains its > sovereignty, freedom, and independence, and every power, jurisdiction, and > right, which is not by this Confederation expressly delegated to the > United States, in Congress assembled." The last qualification shows that > the states did NOT retain complete "independence" but rather that they > delegated some of their power to the national government, albeit less than > under the Constitution. Thus, I don't see how the states under the > confederation were "independent states" in the sense that we would > normally use the term. The central government limited their sovereignty in > numerous ways that are not compatible with traditional notions of > sovereignty (e.g. -the states could not make war, receive ambassadors, > and perform various other sovereign functions without COngress' consent. > They were also required to pay funds into the common treasury (though many > of them flouted this requirement).
COMMENT: Sovereignty (an attribute of statehood) does not mean that the actions of states cannot be limited by treaties (such as the Articles). Treaties often are state self-imposed limitations on state actions. If a state agrees to limit their capacity to, e.g., make war, that does not make a state not sovereign. Indeed, the UN Charter imposes limitations on a state to make war. See UN Charter, art. 2 (4). That does not make states-parties to the UN Charter not states nor the UN Charter not a treaty. Indeed, the UN Charter re-confirms the sovereignty of states by saying guaranteeing that the UN "is based on the sovereign equality of all its Members." UN Charter, art. 2(1). Therefore, the Articles of Confederation was a treaty between 13 sovereign states. Furthermore, the states under the Constitution also retained their sovereignty -- even though they were also limited in their international capacities to, e.g., not make war, etc. Prof. Somin continues: > 2. The quote from the Declaration Prof. Martin cites says that the > states were already "UNITED colonies" (emphasis mine). THis suggests that > they were already part of a common sovereignty and not 13 completely > independent states. INdeed, the declaration is entitled "The Unanimous > declaration of the Thirteen UNITED States of America" (emphasis added). > And of course the Declaration itself was issued by the COntinental > Congress, a centralized governing authority, albeit a very weak one. COMMENT: The United Nations Charter also uses the word "united." That does not mean that the states-members to the Charter are not independent sovereigns. The UN also has a centralized governing authority (albeit, ALSO a very weak one at times); that does not mean that the UN Charter is not a treaty between independent sovereigns. Francisco Forrest Martin
