I know Ilya Somin's comment below was tongue in cheek, and I often jestingly make the point myself to my students, but the "constitution is unconstitutional" claim is far from the only, and certainly not the correct, answer.
As per my earlier reference to James Wilson's speeches on the subject, the difference bewteen the source of authority for the Articles, and the source of authority for the Constitution of 1787, is profound. The Articles were adopted by the legislatures of the states, acting as the delegated agents of the people of the states. (Francisco Martin's "treaty" claims are much more apropos here). The Constitution, on the other hand, was adopted by a national people, as a charter for how they were going to govern themselves. The ratifications were made by the people in their states (where else would they have been made, as one founder noted), but the very act of ratification made them part of a national people, engaged in constitution-making rather than treaty-making. That Rhode Island and North Carolina did not immediately become part of this national people does not make the new Constitution a treaty. And here is the key point: by resorting to a higher authority (the national people, rather than merely the agents of the state people), the 1787 convention was able to offer a constitution that had a constitutional footing, despite the breach of the unanimity requirement in the Articles. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -----Original Message----- From: Ilya Somin [mailto:[EMAIL PROTECTED] Sent: Friday, August 08, 2003 11:58 AM To: [EMAIL PROTECTED] Subject: Re: Teaching the Articles of Confederation [Was 'Re: Just for laughs'] Well, as I tell my Con Law I students on the first day of class, the only possible conclusion is that the Constitution is illegal, the Articles of Confederation are still in force, and I don't really need to teach the rest of the course:). Ilya Somin On Fri, 8 Aug 2003, Sanford Levinson wrote: > >Michael Froomkin wries: > > >When I taught con law I, I always started with the Articles. Being a > >new teacher, I had some trouble persuading the students in the first > >days of their second semester of first year that this was a valuable > >use of their time, even though it seems evident to me that many > >features of the federalists' Constitution are best understood as a > >reaction against what they saw as the flaws of the Articles. > > I begin with a discussion of the propriety of the Framers' blithe > willingness to ignore Article XIII of the Articles and its requirement > of unanimous consent for amendment (the Rhode Island veto). What do > we/they think of this demonstrated infidelity to "constitutional > command"? Do we/they applaud the framers for doing what was > necessary? Does that establish a precedent for later exigencies, > including, say, the Louisiana Purchase, Lincoln's acts during the War, > and current policies of the Administration re the "war on terrorism"? > What do we mean by "constitutionalism" and how important is it, > anyway. All of this comes from even a brief look at the Articles and > the response to them in 1787. > > sandy >
