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Do You Know That the Constitution Is Unconstitutional?

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This story first appeared on MinnPost, a nonprofit news site for and about Minnesota. 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.

James 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.

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