President-elect Donald Trump’s playful remarks about Canada becoming the 51st state have sparked a surprisingly substantive constitutional debate. While many view the suggestion as rhetorical, it raises a fascinating legal question: Could the invitation extended to Canada under the Articles of Confederation still be valid under our current constitutional framework?
The Articles of Confederation, our nation's first governing document, explicitly stated in Article XI:
"Canada acceding to this Confederation, and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine States."
This provision clearly welcomed Canada into the Union without precondition—a unique invitation not extended to any other territory or colony. While the Constitution, adopted in 1787, replaced the Articles as the supreme law of the land, it does not specifically address or revoke this invitation. This silence opens the door to an intriguing argument: the Articles of Confederation's invitation to Canada may still stand.
The Continuity of Law: Articles vs. Constitution
The transition from the Articles of Confederation to the Constitution was not a complete repudiation of the former but a replacement of its framework for governance. The Founders retained several principles from the Articles, including provisions for states’ rights, congressional authority, and mechanisms for territorial expansion. Nowhere in the Constitution does it expressly nullify Article XI's invitation to Canada.
Under basic principles of legal continuity, laws or agreements not explicitly repealed often remain in effect. Alexander Hamilton acknowledged this in Federalist No. 82, writing that pre-existing laws remain operative unless "they are inconsistent with the new Constitution." By this standard, the Constitution's silence on the unique case of Canada suggests the original invitation might persist.
Furthermore, the Constitution establishes a framework for admitting new states (Article IV, Section 3) but does not address Canada’s special status under the Articles. As such, the procedural requirements for adding new states may not supersede the Articles’ one-time, unique provision for Canada’s accession.
The Founders’ Intent
Understanding the intent of the Founders further supports this argument. The Articles’ framers extended this open invitation to Canada because of its proximity, cultural ties, and shared geopolitical interests during the Revolutionary War era. The Founders likely anticipated that Canada’s accession would strengthen the Union and reflect the shared aspirations of liberty and self-governance.
While the Constitution's Framers created a more robust federal structure, they did not dismiss the goals or promises of the Articles. James Madison, the "Father of the Constitution," emphasized continuity and prudence in law. In his correspondence and in The Federalist Papers, Madison often articulated the importance of preserving commitments that did not conflict with the Constitution. From this perspective, the open invitation to Canada may represent an enduring promise, in harmony with constitutional principles.
Practical Implications
Should Canada ever entertain joining the United States, Congress would likely invoke Article IV, Section 3 to finalize the process. However, Article XI of the Articles of Confederation could serve as a historical and legal foundation, streamlining the process and reinforcing the legitimacy of Canada's accession.
In addition, Canada’s unique status under the Articles distinguishes it from other territories seeking statehood. It underscores that this invitation is not merely a political gimmick but a legal and historical artifact worthy of consideration.
Conclusion
While President-elect Trump’s remarks about Canada becoming a state are likely intended as lighthearted banter, the discussion raises profound questions about the continuity of law and the legacy of the Articles of Confederation. The Constitution does not explicitly revoke the Articles’ invitation to Canada, leaving room for the argument that Article XI remains valid.
As Americans continue to debate the scope and meaning of constitutional governance, this scenario provides a unique opportunity to explore how historical documents shape our legal and political landscape. Perhaps, in this one instance, the Articles of Confederation still have a role to play in shaping the future of the Union.
Would Canada consider such a proposition? That’s a question for another day. For now, this legal curiosity invites us to reflect on the enduring influence of our Founding documents and the promises they made to a world on the brink of freedom.
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