Skip to Content

Do you know that the Constitution is unconstitutional?

"Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy.

A note to readers: We hope you have found the series interesting so far. It’s not over, but after today’s quirky installment, the series will take a short hiatus until we get past the madness of Election Day. The series will resume Nov. 12. You can read the whole series here.

By the way, did anyone ever tell you that the Constitution is unconstitutional? Yep, the whole thing. Or at least its ratification was illegal. This is not a joke, except to the degree that it is.

But the only way to really get square with promise-keeping and the rule of law would be to haul the whole thing down and put the previous document – the Articles of Confederation – back into place.

Here’s the deal. The Articles of Confederation were drafted by the Continental Congress around the time of the Declaration of Independence and ratified by all 13 colonies/states by 1781. It explicitly declared itself to be the “perpetual” form of government for the newly independent nation.

(The actual full name of the charter is “The Articles of Confederation and Perpetual Union” of the 13 original states. The perpetual nature of the 13-state compact is restated throughout. Interestingly, the Constitution makes no such explicit claim, which makes it harder to take Abe Lincoln’s side on the question of whether the southern states had the right to secede. But that is a whole other piece.)

Back on the unconstitutional Constitution issue, the key is that the Articles of Confederation specified that nothing in it could be changed except by unanimous agreement of all the member states.

Here’s the language of Article XIII of the Articles:

The 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.

Pretty clear. Every state agreed to it.

By the mid-1780s, the War for Independence was won, trade wars were occurring between states leading to a desire to have a national power to regulate interstate commerce. Further, Shays’ Rebellion in Massachusetts frightened the upper classes about whether the national government was strong enough to put down insurrections that might arise within states (especially a debtors’ rebellion against their creditors like Shays’ Rebellion). So Congress authorized the states to send delegates to Philadelphia to draft changes to the Articles for consideration by the Congress.

Reasonable assumption

Based on the language just above, the only reasonable assumption was that the Philadelphia convention was supposed to recommend back to Congress a few amendments, none of which could take effect without the approval of the Continental Congress and the separate unanimous approval of the state legislatures.

Imperfect Union: The Constitutional roots of the mess we're inJames Madison of Virginia was the ringleader of a group that wanted to replace the Articles of Confederation with a whole new document. That pretty clearly exceeded the mandate from Congress. But that problem could be overcome if the convention’s proposal was adopted by Congress and then ratified by all 13 state Legislatures.

So the Framers did their framing and came up with an entirely new plan: new powers for the government (power to regulate interstate commerce was just one of many), a powerful new executive branch (there was no president under the Articles), a new national judiciary, a bicameral legislature (to replace  the unicameral system under the Articles). Well, just a whole new deal.

But then, instead of submitting it to Congress and to the Legislatures of the states for unanimous agreement, the Philadelphians came up with the seldom-remembered Article VII stating:

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

You see the problem? The Framers, who had already exceeded their mandate by writing a whole new constitution, disregarded the existing “perpetual” law of the land which required unanimous approval of any changes. Article VII decreed instead (with no particular legal standing to do so) that no approval by Congress or state legislatures was necessary and that ratification by “conventions” of any nine of the 13 states would put the new draft into effect in those states, after which, if the other four states don’t like it…what?

Exactly when did each or any of those other states give up the right to singly veto any changes to the perpetual union formed with the others less than 10 years earlier? Or, to put it another way, how, when and where did the first nine states to ratify get out of their perpetual obligation to the other four?

Now, maybe you’re thinking that the whole problem goes away as long as all 13 states like the new deal. And maybe we won’t even get hung up on the bypassing of the state legislatures in favor of new-fangled “conventions” created under the new Article VII. And perhaps you know that all 13 states eventually did ratify, so you think I’m molehill-mountaineering. But there’s a couple of things you may not know, unless you are as obsessed as your humble and obedient ink-stained wretch is with the funky details of the Constitution story.

The Framers knew they couldn’t get unanimous approval of the states. Rhode Island, in particular, was so deeply opposed to what they saw coming from the enterprise that had refused to send any delegates to Philadelphia. If approval of a new charter required unanimity (as it did under the basic law then in effect), then Rhode Island by itself had veto power and the Framers were wasting their time.

Picked the number nine

Looking at the 13 states, the Framers recognized several others states –including some big, important ones like Virginia, Massachusetts and New York  --  in which the prevailing anti-federalist political temper might make ratification iffy. So, in Article VII, the Framers chose the number nine, which they believed they might be able to get, and counted on the idea that if nine or more of the 13 states went forward under a new plan, it would be impractical for a few non-contiguous non-ratifiers to hold out as islands of resistance.

It worked. Five states were easy and quick to ratify. In Massachusetts, allies of Gov. John Hancock held the balance and Hancock leaned against ratification, but the federalists turned him around by suggesting that he could end up as the first vice president or even president (if Virginia stayed out of the union). Maryland, South Carolina and New Hampshire came aboard in April, May and June of 1787, bringing the total to nine, which meant that, according to the draft Constitution's terms (but not the Article of Confederation's) the Constitution would take effect, at least in those nine states, leaving the status of the other four in question. 

Virginia – where Patrick Henry was the great obstacle – ratified by a narrow convention vote of 89-79 with a set of recommended amendments that floor manager James Madison promised would be considered as soon as the first Congress was assembled. (Those recommendations formed the basis for what became the first 10 amendments, aka the Bill of Rights.) That made 10 state in, three still holding out.

In keeping with Article VII, steps were taken to begin organizing the first elections without the participation of New York, North Carolina and – of course -- Rhode Island. By its size, its location and its port, New York was vital to the new nation but deeply anti-federalist. The first vote there was 46-19 against ratification. But once the critical number nine was passed, the anti-federalist New Yorkers had to contemplate going forward as an independent state, surrounded by members of the United States. New York City was a hotbed of support for ratification. At a crucial moment, Alexander Hamilton (the floor manager for the pro-ratification forces at the New York convention) floated the idea that if New York stayed out, New York City – with its vital port – might secede from the state and separately join the U.S. A. That panicked enough of the anti’s. New York ratified by 30-28. That left two states out.

By the terms of its own charter, the Continental Congress should have remained in place until all 13 states had ratified. Instead, in September 1788, it announced that the new Constitution was in effect, set a date in February 1789 for the presidential electors to select a new president, and set the first Wednesday of March 1789 as the day the new government would take over and the government under the Articles of Confederation would come to an end.

North Carolina defeated the Constitution by 184-84 and stayed out of the arrangement for another whole year before it caved, called a new convention and ratified.

As expected, Rhode Island was the last holdout, still deeply opposed and still clinging to its right under the Articles to veto any change of which it disapproved. And it really disapproved. Rhode Island was the only state that had refused to even call a ratification convention, instead putting the question to a popular referendum in which ratification was rejected by more than a 10-1 margin. Yes, 10-1.

In 1789, George Washington was inaugurated as president of a country that didn’t include Rhode Island. Rhode Island clung to its position that the rest of the country had seceded from it. The impracticality of Rhode Island’s situation became so clear that it finally called a convention at which ratification was adopted by an overwhelming vote of 34 delegates willing to ratify through clenched teeth, while 32 delegates still said no.

One parting fact that will lead us toward a future installment: The new (now old) Constitution set a somewhat lower threshold for amendments than the Articles of Confederation had. An amendment has to pass both houses of Congress by a two-thirds vote and then be ratified by the Legislatures of three-fourths of the states.

Three fourths of the states. But the Framers simultaneously set the threshold for adopting the entirely new constitution at ratification by nine of the 13 states. Nine out of 13 is less than three-fourths.

Get MinnPost's top stories in your inbox

Related Tags:

About the Author:

Comments (15)

Article X?

I'm wondering if the Philadelphia Convention was relying on Article X of the Articles:
"The Committee of the States, or any nine of them, shall be authorized to execute, in the recess of Congress, such of the powers of Congress as the United States in Congress assembled, by the consent of the nine States, shall from time to time think expedient to vest them with; provided that no power be delegated to the said Committee, for the exercise of which, by the Articles of Confederation, the voice of nine States in the Congress of the United States assembled be requisite."
The clause about delegating power to the said Committee could be problematic but you can see the argument that they'd use. Btw, the Articles use the 'nine states' formula a few other times so I don't know much extra planning the Framers used. They would, of course, have been very aware of the numbers of the day.
I didn't know about the holdouts of South Carolina and Rhode Island. Very cool info! And if others are interested, the Articles are very short and easily read. I was surprised at how bare bones an agreement they really are. They look more like a summary of the NATO pact than the much fuller Constitution.

Eric

Why do you hate America?

I've Noticed

That he also Blames America First.

I think he is working from within to overthrow Democracy. You can sure tell when a guy hates freedom.

The more things change....

Very political, and very interesting as history.
I'm not surprised that the varied colonies, with varied interests, and not even speaking the same language (a large part of the population of New York were ethnic Germans who still spoke German, and leaned towards the British with their own German royal family) didn't agree on the structure of the nation-to-be.
As usual, it got sorted out, with most of the leaders at least seeing that some Constitution was better than none. They were too smart to let the perfect be the enemy of the practical, and by lowering the bar for amendment made sure that it would be a living document (Scalia, who was there, dissented).
It had become clear to most of them that a minimalist government (the Articles of Confederation) was NOT practical; there's a lesson there.

Pesky rules

Good stuff, Eric.

The Articles are, indeed, a very bare-bones framework for a national government, and in the end, as Paul Brandon states, it became clear that a minimalist government was not practical. Actually, it was a near-total failure, and I couldn't agree more that there's a lesson to be learned from that. Unfortunately, those fulminating against "big government" don't know their history very well, and aren't aware that much, if not most, of what they propose on a national scale has already been tried – in a much simpler and easier time – and found wanting.

Minimalist Government

Well Paul and Ray, you've convinced me. I won't vote for any Presidential candidate who is trying to return us to the Articles of Confederation. Of course no one is proposing that. Even the tea partiers think that the Constitution provides a superior form of government.
On the spectrum of size of government, the Articles are far more minimal than even the most hardcore libertarians are asking for today. Smaller government advocates, like myself, think we should roll back from the gargantuan size that we have today. We think that we'd be better served by less of a command and control economy. We think that the government is bad at picking winners and losers. The recent history of investments in green technology bears this out.
Disagree with us certainly, but don't set up silly strawmen.

Actually

'Green Tech' startups such as Solyntra were funded out of a special fund set up by Congress specifically to support innovation. The percentage of failure in that program so for has been below that which was anticipated.
And of course government employment has been reduced in the past three years.
And speaking of the TP and straw men, who was it that wants to 'drown government in the bath tub'?
YOU may not agree with Nordquist, but most of the Tea Party (and many of the current conservative Republicans, which is most of them) have signed his pledge.
The main departure between the current conservative mainstream and the Articles is in the power of the Federal government to raise an army and fund it through taxes.
It may be a house made of straw, but the issue is real (at least if you believe what they say).

Drown it in a Bathtub

Norquist is obviously using hyperbole in his comment. That's very different than using a strawman. Even the pledge that he urges simply declares that there would be no new taxes (though even that's an over-simplification). The US brings in about $2.5 trillion in revenues. He's arguing that this should be the figure that we use when deciding what to fund. He's saying that should be enough.
"The main departure between the current conservative mainstream and the Articles is in the power of the Federal government to raise an army and fund it through taxes."
Can you point to any examples of conservatives wanting to eliminate the executive or judicial branch of the federal government?

The Articles

did not eliminate the Executive or Judicial branches of government, just weakened them considerably (note that Washington would still have been President, but without the power to raise an army -- he would have been dependent on state militias).
And I'm taking Nordquist at his word (and his writings).
I'll let you read his mind for me.

Articles of Condefderation

You're completely wrong about the Articles of Confederation. They did not create an executive or judiciary branch. Those were started by the Constitution. If you'd like to read this, both are found in Article 9 of the Articles. The process for the Supreme Court is particularly wild!
And you want to take him at his word, huh? Ok, so he wants a government that is small enough to drown in a bathtub. Well it's hard to drown even an adult in a bathtub. Possibly a child, if one were so monstrous as to do so. So, the only way to take Nordquist at his word is to suggest that he wants government to consist of a single child! And in light of that, I'm going to register my disagreement with him, I guess.

Section 9

Certainly sounds like it establishes a judiciary.
It certainly is not the one established by the Constitution, much less the present judicial branch, but a judiciary it is.
The articles can be read at
https://docs.google.com/a/isd77.k12.mn.us/document/d/1L7_Up5HRn3iBvkDFN_...
As far as the executive branch is concerned, this certainly sounds like its function
"The united states in congress assembled shall have authority to appoint a committee, to sit in the recess of congress, to be denominated "A Committee of the States," and to consist of one delegate from each state; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the united states under their direction — to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; .... " also from Article 9.
Clearly a very weak executive branch; again why it foundered.

And I compliment you on a beautiful example of reductio ad absurdum in regard to your argument on Nordquist.

Last word

This will probably be my last post on the topic, since I'll have uncertain 'net access for the next couple of weeks.
You are correct in that the Articles did not -explicitly- create three equal branches of the federal government.
They clearly were vesting most federal power with the states (and note that they DO refer to the states' Governors), and central power to the representatives designated by the states acting in congress (hence the term). This proved impractical. And it could be argued that they did not even create a legislative branch per se; simply the designated (not necessarily elected) representatives of the states acting 'in congress'. Enacting laws was the states' function.
One might say that their structure was lucky to have a trunk; much less branches.

Lucky to have a Trunk

And with your last sentence, we are in exact agreement. I'd never read the Articles until just a couple of weeks ago. I was shocked at how minimal the whole thing was. It's not surprising that it proved impossible to run an entire nation under them.

Bill of rights

It's important I think to focus on the timing of the ratifications here and the addition of the first ten amendments, the BIll of Rights. I've been reading some of the research of legal scholar Mitchell Franklinw ho described the Bill of Rights and the "Second Constitution" without which the First would not have been approved. The Bill of Rights was added in 1789, two years after the 1787 First Constitution was signed and ratified by the first states which did, as Eric writes in his article.

Franklin described Thomas Jefferson, who was one of the framers of the Bill of Rights, as an American Encyclopediste, and therefore more influenced by the Continental thinking of the Enlightenment: Voltaire, Rousseau, Diderot and Beccaria, than he was William Blackstone, whose English common law legalistic thinking took over afterward. Jefferson was sympathetic with the French Revolution and the Doctrine of the "Rights of Man". The Bill of Rights were supposed to be the States' check on the feared concentration of power in a federal government. Without the Bill of Rights, the Second Constitution, there would have been no First Constitution or any "Constitution" as we know it today.

Three Things

The Union was perpetual, the Articles not; the founding generation changed state constitutions all the time and did not see the cognitive problem; Article X allowed for the exercise of powers by a quorum, one of which must have been self-amendment if the Congress was legally sovereign, like Parliament; and the Articles prohibited the amendment of any one of them without unanimity--not the replacement of all of them.

This is consistent with a form of organisation in which the people and states share sovereignty in reality, but it is given form by a written document which exists at their sufferance.

Great article though!