Weird question, I know. But it's occurred to me before that the process whereby the Constitution was ratified and made the law of the land was not in accordance with its legal predecessor, making the Constitution itself unconstitutional. Here's what I mean.
The original U.S. government was a confederation, as opposed to the current federation. The states had much greater power and independence compared to the central government, than they do under the Constitution. The governing document, adopted during the Revolutionary War, was the Articles of Confederation. This original government had numerous shortcomings, the central government being too weak and hamstrung to fulfill necessary functions, most obviously lacking the power of laying direct taxes, which left it unable to meet the common debt and led to dissatisfaction among those (such as Continental Army veterans) who were owed money.
In 1786, it was proposed that the Articles be revised and amended to correct these problems, and a convention of representatives from each state was called for that purpose. The convention was only authorized to amend the Articles but instead drafted an entirely new governing document. However, that is not the real reason why it can be argued that the Constitution is unconstitutional. Approval after the fact according to the procedures spelled out in the Articles of Confederation would have rendered moot any overstepping of its authority by the Convention. But it seems to me that this approval did not happen, or rather that it happened in a way that the Articles did not legally allow.
The Articles of Confederation contained this language:
(Article XIII.)
However, the proposed U.S. Constitution that came out of the convention contained this language:
And that of course was the procedure whereby the new government was ratified. The Constitution was never approved by the legislature of ANY state, let alone all of them, since it bypassed this procedure with a completely different method of ratification. Moreover, although all of the states eventually did ratify the Constitution, it went into effect after being ratified by only nine of the 13, so that the remaining ratifiers were approving a
fait accomplis. In accordance with the law, it should have been ratified by the state legislatures, not by state conventions, and should not have gone into effect until all 13 states had approved.
So it could be argued that the U.S. Constitution, in violating the legal course for amending the Articles of Confederation (and a complete replacement should still be considered an amendment), placed itself on a legal foundation that is null and void.
