I ask because I want to briefly wade into history (I'm pretty confident I'll be revealing some serious ignorance in this one). Some time ago, our Confederate friends believed that states could choose to leave the Union and, apparently, some states' rights folks still think this. The Civil War, then, apparently decided only that if your state wants to leave, it better be packing more firepower than the states that want it to stay.
We know that the Articles of Confederation was the first real governing document for the United States. But if you read the Articles, you'll notice repeated references to itself as the "Articles of Confederation and perpetual Union." In fact, the Articles stressed no less than six times that the union it was establishing between the states was to be perpetual.
I'm compelled to raise the questions in this post because one day while looking at the wiki page on the Constitution, I saw this:
On September 17, 1787, the Constitution was completed, followed by a speech given by Benjamin Franklin, who urged unanimity, although the Convention decided that only nine states were needed to ratify. The Convention submitted the Constitution to the Congress of the Confederation, where it received approval according to Article 13 of the Articles of Confederation.[10]
I didn't remember that bit about receiving approval from the Congress of the Confederation from history class (should I? perhaps this is an embarrassing admission) and the reference they give for that assertion is the National Archives page on the Constitution; it wasn't immediately obvious during a brief browse where on the site that factoid could be found.
But, assuming it's true, it seems to raise an interesting philosophical question. Though the Constitution didn't require unanimity for ratification and the Articles did require unanimity for the adoption of amendments (as you can see from Article 13 below), it's worth noting that the Constitution did ultimately receive unanimous ratification so at least in practice that discrepancy is without consequence.
Article XIII. Every State shall abide by the determination 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.
The first question that occurs to me is pretty straightforward. If the Constitution was indeed adopted in accordance with Article 13 of the Articles of Confederation (right down to actually being submitted to the Congress of the Confederation), then is it indeed what it was originally supposed to be: an amendment to the Articles of Confederation? Perhaps I was zoning out during this bit of American history but I had always thought that the Constitution was written only after the Framers decided that amending the Articles was a lost cause and an entirely new document, written outside the context of the Articles, was needed. But if the Constitution is itself only a legitimately passed amendment to the Articles--granted, an entire overhaul but one done within the context and conceptual framework of the original document--then it is part of an unbroken chain that started with the writing of the original Articles.
And that leads to my second question. Is the "perpetual union" bit not still in full force? I ask because the Articles contained a very odd thing: An Infinity. A perpetual union is one that will exist for all time and presumably cannot be undone. The only way, then, to overcome that would be to deny the legitimacy of the Articles and supplant them with something entirely different. Which is what I had always thought is what happened.
But if the Constitution is technically just an amendment to the Articles, then it still acknowledges the legitimacy of the original document; again, this hinges on whether its passage was actually done in compliance with amendment rules set forth in Article 13 of the Articles but for the purposes of this post I'm assuming that's true. And since that document contained An Infinity, I would think that even a complete re-write couldn't scrub that Infinity out of existence. That is, it seems to me that under the original Articles, you couldn't have an amendment passed under Article 13 that said "oh, about that perpetual union thing? nevermind." The reason being that you can't create An Infinity and then later decide that you want to cap it, even retroactively. If the original document is valid and it creates An Infinity, then I would think that Infinity will persist for as long as the validity of the document is recognized. Even the full power of the document can't undo what it has done. You can't close Pandora's Box.
And if that's true then even under the current Constitution its parent's commitment to a perpetual union of states must still be in effect. Because you can't uncreate The Infinity contained within the Articles without rejecting the Articles, which the Constitution doesn't seem to have done (again, assuming its ratification was done with the assumption of the Articles' validity, i.e. as an amendment to the Articles). The reason being, quite simply, that if you could end something with a simple amendment, then it couldn't have been perpetual in the first place. Similarly, if you could simply cap the infinite whenever you felt like it, it couldn't have really been infinite to begin with. "Perpetual" means a very specific thing and, I think, implicit in that definition is that nothing at all can end it. And if the Constitution is cut from the same cloth as its predecessor, then even though the words "perpetual union" are no longer in the governing document they must still be operative anyway.
Does any of this make sense? Am I way off base here?
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