Posted by: captainfalcon | February 13, 2011

Our Broken Constitution

The Land Ordinance rabbit hole took me to the other side. I haven’t read the article I cited last post – maybe it addresses this – but here’s the puzzle.

The Constitution seems to contemplate the United States persisting before its adoption, not being created by it. Hence Art. VI cl. 1 All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” If the United States has been “under the Confederation” then it wasn’t created by the Constitution.

But then there’s Art. VII, which says that “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the same.” Art. VII, then, implies that the Constitution is only in force for those States that ratified it. Thus, conjoined with Art. VI cl. 1’s implication, it entails that, for a (potentially indefinite) time, the Constitution only has authority in some of the United States.

This directly conflicts with Art. VI cl. 2 – The Supremacy Clause – which provides that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land. ” The Supremacy Clause contemplates that laws enacted pursuant to the Constitution are laws of the United States. It also asserts that the Constitution is the supreme law of the land. Thus, unless Virginia is not of the land the Constitution is, by its own terms, supreme within it.

In short: If Virginia is of the United States then the Constitution and laws passed pursuant thereto are its supreme law even if it hasn’t yet ratified (Art. VII cl. 2). Virginia is of the United States (Art. VI cl. 1). Therefore, the Constitution and laws of the United States are its supreme law even if it hasn’t yet ratified. But the Constitution and laws passed pursuant thereto are not the supreme law in Virginia until it ratifies (Art. VII). Contradiction.

Nor is the contradiction simply solved by positing that Art. VII implicitly qualifies the Supremacy Clause so it reads that the Constitution is the law of the land for those parts of the United States that ratify it. That leads to the real possibility that the Constitution never would have applied to certain parts of the United States – those parts that, hypothetically, never ratified it – which is an absurdity too great to bear!

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Responses

  1. Stupid wordpress and its stupid text editor.

  2. Interesting post, captainfalcon. Proof that the Founders were not as earth-shatteringly brilliant as some think/hope they were?

  3. They weren’t the best at comma placement. The point’s pretty unoriginal, but compare the actual text of the natural born citizen clause:

    “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President…”

    With the text you’d need in order for anybody born after 1788 to be eligible for the Presidency:

    “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President.”

    Maybe the original public meaning of the second comma was different.


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