Prof. Levinson wrote: > 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.
COMMENT: As I argued in an earlier posting, the Framers in settling on a non-unanimity rule were legally justified to do so because several of the states had violated the Articles of Confederation by, e.g., entering into treaties with other foreign states (viz., Va, Md. NY, Pa., Ga.). This relieved the other states from observing their treaty obligations under the Articles with those state that had breached the Articles. This was the point partially made by Madison. However, some states did not violate the Articles; therefore, the Articles were still binding. This was conformed to the customary international law governing multilateral treaties. However, because it was unclear exactly which and how many states had violated the Articles, a compromise was required. (For example, did Massachusetts violate the Articles by maintaining troops and a navy? Or, were such troops a militia and was the navy necessary for combating piracy -- two exceptions allowed under the Articles?) The solution -- a legal one, I submit -- was to use the 9-state rule under the Articles for entering into a new treaty. Unanimous consent was required only for amendment -- not for establishing a new treaty, such as the Constitution. Of course, whether the La. Purchase, Lincoln's acts during the Civil War, etc are constitutional are another matter. Francisco Forrest Martin
