Homage to Clio: The Historical Continuity from the Articles of Confederation into the Constitution

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Abstract: The nature of the United States continued even as the Articles of Confederation were replaced by the Constitution. The Constitution is a radical document, but unstated assumptions about political institutions continued from the Articles into the Constitution. Only the provisions that were challenged or changed were written down. Routine parts of what the Framers knew defied articulation.

Historical continuity explains why George Washington could be President, even though Virginia had not ratified the Constitution either when he was born or when the Constitution was adopted. The United States was the same United States before and after ratification.

Historical continuity implies that the ban in the Articles of Confederation on state discrimination against out-of-state citizens by taxation or regulation is part of the Constitution, although not stated. The norm was strongly felt, but unchallenged and so not written down in the Constitution.

Historical continuity implies that Congress may commandeer state officers as it did under the Articles. Tax requisitions were a commandeering of state officers for federal benefit under the Articles. The Framers assumed that requisitions of tax and similarly commandeering would continue under the Constitution.

Finally, historical continuity implies that Congress has the general power to adopt all appropriate measures "for the common Defence and general Welfare." The debaters assumed that federal powers would be legitimate even though they were not enumerated so long as the powers fell appropriately within the national sphere. They removed the requirement in the Articles of Confederation that Congress have only the powers "expressly delegated" to it, and they defended that removal through the adoption of the Tenth Amendment.

I. INTRODUCTION

Constitutional Commentary some years back offered a prize to anyone who could answer the riddle of how George Washington could be eligible under the Constitution to be President. (1) The Constitution requires that the President of the United States must be either a natural born citizen or a citizen of the United States at the time of the adoption of the Constitution, (2) and Washington seemingly was neither. George Washington was born in the British colony of Virginia, long before there was a United States. When the Constitution was adopted, Washington's state of Virginia had not yet ratified. By its own terms, the Constitution was established by the ratification of the ninth state, but only between states that had ratified it. (3) The ninth state, New Hampshire, ratified the Constitution on June 21, 1788; Virginia did not ratify until four days later, on June 25, 1788.4 When the Constitution was adopted generally, the Constitution had not taken effect in Virginia. Washington was surely a citizen of Virginia at the time the Constitution was adopted, but if Virginia was not in the Union, how could Washington be a citizen of the United States on June 21? Since he was neither a citizen of the United States by birth nor a citizen at the time of the adoption of the Constitution, how did he ever get to be President?

The contest went unanswered for a number of years, but the answer to the riddle is that Washington was constitutionally eligible for the presidency because the United States was not formed by the adoption of the Constitution, but predated it and continued without break through the adoption of the Constitution. Virginia was part of the continuous United States for purposes of determining Washington's eligibility, even though it had not yet adopted the Constitution.

The "United States of America" was arguably formed in 1776 by Congress's declaration that the British colonies were states. Historian Richard Morris has argued that Congress created the states and not vice versa. (5) The Continental Congress was formed from assemblies, conventions and revolutionary committees. …