Homage to Clio: the historical continuity from the Articles of Confederation into the Constitution.

• Author: Johnson, Calvin H.

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.

1. 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. In May 1776, two months before the Declaration of Independence, Congress instructed the "respective assemblies and conventions of the United Colonies" to take power from the Crown authorities and "to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general." (6) The earliest reference I have found to "United States" is a reference to the Congress of the "United States of North America" in secret instructions on March 1, 1776, telling agents of the Congress to buy war goods in Europe. The extra word "North" in the reference shows the terminology had not yet settled. Moreover, the instructions within a few lines refers to "said United Colonies" as if the draftsman thought he had said "United Colonies" rather than "United States" at the outset of the instructions. (7)

   The United States might also have been formed by the act of states coming together. In a decision upholding an indictment for forgery and fraud against the United States, the Supreme Court of Pennsylvania reasoned that the United States necessarily became a body politic from the moment of the association of the states, without need of a charter or statute, just as the English crown, Commons, and Lords had formed a government without a written charter. (8) At the latest, the Articles of Confederation established the United States upon ratification in 1781 by providing that the "Stile of this Confederacy shall be The United States of America." (9)

   The Framers knew about both sides of the riddle. George Washington was widely expected to be the first President. (10) The Framers also did not expect every state to ratify (11) and they required ratification by only nine of the thirteen states for the Constitution to become effective. (12) Virginia was Anti-Federalist enough to be a real risk. The Constitution, as a first priority, gave Congress the power to impose federal tax so as to have funds to pay the debts of the Revolution War and to provide for the common defense and general welfare in perpetuity. (13) Virginia had earlier resolved that any federal tax would be inconsistent with the Virginia's sovereignty. (14) As it was, Virginia came close to refusing to ratify. (15)

   The Framers nonetheless knew what the United States of America was and that Virginia was part of it. One does not notice the routine and ordinary things within one's stock of common knowledge. That is what makes artificial intelligence so hard: the assumptions that make the world intelligible to a human cannot be articulated and written down so that a machine can understand. Most of anyone's stock of knowledge and experience is assumed but unexpressed, perhaps even unexpressable. Only things that are challenged, things that are to be changed, or unusual new things get noticed and written down. Most of the truths assumed by the authors of the Constitution were unexpressed. Clio, the muse of history, must reveal the assumptions which could not be expressed.

   The Founders, moreover, were building a nation that took several generations and across the replacement of the Articles by the Constitution. The Founders did not arrogantly claim Godlike omniscience that would enable them to start from scratch. They were not acting like Penelope, who unraveled the cloth on her loom each night, to start afresh each morning. Instead, they were improving on the existing nation and national government. To use another analogy, the national government was like a medieval cathedral, started by one generation but not finished until the next. What the Founders knew resided in their experience and cultural heritage. They were who they were because of that experience and cultural heritage, without any need to restate it. What changes they made were incremental. (16)

   The question, "Was Washington Constitutional?" was a riddle, at least amusing to the readers of Constitutional Commentary, because we have tended to think of the Constitution as a completely new start. In his Commentaries on the Constitution, Joseph Story argued in 1833 that the Articles of Confederation could not be used either to enlarge or to restrict the language of the Constitution. He ridiculed the idea of appending the Constitution "as a codicil, to an instrument, which it was designed wholly to supercede and vacate." (17) Story seemed to think that the American nation was, to borrow Edmund Burke's derogatory metaphor, a blank piece of paper on which the drafters could scribble whatever they pleased. (18) We seem to have adopted Story's perspective. At very least, the prize for Constitutional Commentary's contest went unclaimed for many years.

   Story must have been wrong, however, because Washington could not have been President if the United States was formed completely from scratch or was formed anew on June 21, 1787. The nation did not stop and restart on June 21. It continued. For Washington's presidency to have been constitutional, the United States, defined to include a Virginia that had not ratified the Constitution, had to carry over from the Articles of Confederation, if not earlier, and into the Constitution.

   Constitutional Commentary offered a green picture of George Washington suitable for a billfold for an explanation of whether George Washington was eligible for the Presidency. Years after the contest was announced, I won. (19) The contest also offered a second dollar bill for the best explanation of how "great matters of Constitutional theory turn on the proper analysis of the Washington issue." (20) Constitutional Commentary gave me that noble portrait of George Washington as well. (21) More than was possible in a short answer to a riddle, this article explains the greater constitutional theory that allowed Washington to be President.

   The greater constitutional theory that justifies Washington's eligibility for the Presidency is the principle of historical continuity. The Founders were able to articulate and express only things that...