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This may seem like a silly question, but I only ask because of a U.S. Supreme Court case that actually cited the Articles of Confederation.

After the civil war, there is this case called Texas_v._White, which in the process of judging the case, the Supreme Court had to give an opinion on whether the state of Texas actually legally left the United States during the civil war. The answer was of course no. Chief justice Salmon P. Chase ruled that Texas never legally left the Union.

The interesting part is the reasons he used to justify his opinion. This is important because he acknowledged that the State of Texas and its people had officially voted to leave the Union, but even this process was void because:

"The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to 'be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?"


A simple search will show that the phase "perpetual union" is not in the Constitution anywhere but all over the place in the Articles of Confederation. This suggests that Chase believed that the Union established by the Constitution is only a refinement of the Union previously established by Articles of Confederation. For matters where the Constitution does not clearly redefine (such as whether the Union is perpetual), the Articles of Confederation retains its legal authority.

Considering that U.S court cases set precedences, the case of Texas vs white seems to suggest that the Articles of Confederation still as legal power today, as long as it does not conflict with the constitution.

Doesn't that sound a little weird?

  • Thanks for the note. The title is now modified. This is mostly about an event in the past (that may still have an effect today), so please do not remove it:) – Xiaowen Li Sep 17 '14 at 4:11
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    At the risk of straying too far off topic though, the Articles of Confederation is one of the Organic Laws of the United States, although I disagree with your reading of the case's implication. More on topic, historically, the Constitution was somewhat technically an amendment to the Articles (that just happened to change the whole document), but it was also (justifiably) perceived by some as a total replacement even during ratification. – Semaphore Sep 17 '14 at 4:54
  • Disagree with @Semaphore completely (and respectfully). Pauline Maier and Jack Raklove both point out the fact that the Constitution was very explicitly NOT approved under the amendment process for the Articles; in fact that approach was explicitly forbidden. The Constitution was submitted to a popular vote, bypassing all legislatures at the time. – Mark C. Wallace Sep 17 '14 at 11:06
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    @MarkC.Wallace I don't actually disagree with that. My comment was worded poorly; I should have said the Constitution was ostensibly proposed as an amendment to the Articles (even though as you rightly pointed out, it was ratified in a procedurally improper manner). Federalist #40 for example argues its an authorised revision while dismissing procedural improprieties almost out of hand. Whether this means the Constitution is an amendment or not is, IMHO, debatable. Personally I won't insist on calling it either - I think the distinction is inconsequential. – Semaphore Sep 17 '14 at 12:41
  • "When Did the Articles of Confederation Cease to Be Law", by Vasan Kesavan, Notre Dame Law Review, 2002: scholarship.law.nd.edu/ndlr/vol78/iss1/3 – Michael Hardy Sep 26 '16 at 2:51
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It was replaced under Article XIII of the Articles of Confederation, which stated:

[T]he 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 only questions as to which document held precedence ended when the last state of the Confederation (Rhode Island) ratified the Constitution in 1790. Prior to that, there would have been some legal limbo stemming from the fact that Article VII of the Constitution only required 9 states to ratify.

Furthermore, the U.S. Supreme Court would not hold any authority over the enforcement of the Articles of Confederation, as Article III, Section 2 defines that authority to "extend to all Cases, in Law and Equity, arising under this Constitution."

The wording quoted from Justice Chase's opinion in Texas v. White is basically just legal hyperbole, and serves as an introduction to the actual basis for the Court's decision a couple paragraphs later:

But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that "the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence," and that "without the States in union, there could be no such political body as the United States." Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.

Note that this does not use the Articles of Confederation as the legal basis of the decision - it uses arguments based on the Constitution. You can read the full decision of the court here - Wikipedia pulls a couple of quotations out of context.

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    – Are you interpreting that excerpt correctly? It seems to me that it comes AFTER the basis of the decision. You could almost read that section as, "Having established the perpetuity of the Union, this by no means implies the loss of distinct & individual existence..." It reads as a guide to interpreting what the Union's perpetuity & indissolubility means for the States. – JimZipCode Dec 17 '14 at 19:53
  • But Article VI, Clause 1 of the Constitution says that engagements entered into by the U.S. under the Articles of Confederation continued to be as valid as they had been. For that reason, a present-day dispute over some aspect of a treaty concluded before June 1788 might have to refer to the Articles to understand something about the import of the treaty. – Michael Hardy May 31 at 17:51
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It is impossible to imagine perpetuity to mean a state was in forever. Perpetuity means the arrangement has no expiration date, not that once youre in youre locked in FOREVER - thats nonsense and it destroys the whole idea of independent sovereign states. And if a state were to secede the Union still exists.What if the Union evolved to a point in the future where it became a tyrant, a dictatorship, or maybe even a Hitler/Stalin type regime. To claim an independent state MUST remain tethered to that is nonsense. The Articles of Confederation required a unanimous vote in Congress before it could be changed yet with only nine states ratifying the Constitution these states ignored the Articles for expediency sake and subjected themselves to the Constitution. Only nine! So was there a Union? Was the Union dissolved while Rhode Island twiddled its thumbs? Was the Union perpetual or did RI dissolve it? Was there a time when some states were under both the Articles and the Constitution simultaneously? Each state absolutely has the right and authority to exit the Union at will.

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I understand the reading of the "Articles" however, much like a politician or lawyer; the question still hasn't been answered. this causes people such as myself to roll ones eyes. can we just get a yes or no? A caveat of that; according to a friend that is a criminal lawyer. yes, the articles of confederation were in fact "replaced" by the Constitution. Mike dropped...

Some of the information contained in this post requires additional references. Please edit to add citations to reliable sources that support the assertions made here. Unsourced material may be disputed or deleted.

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    Can you provide anything more authoritative than a claim about what your criminal lawyer friend said? – Null May 8 '17 at 14:36

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