All right, I was seduced by an irresistible bon mot. My bad.

Since the states were still legally independent bodies before the ratification of the Constitution, I'd tend to agree.

This is not quite true. Let's look at the portion of the Articles of Confederation affecting that judgment.

From this, we can see that no state can conduct an independent foreign policy, nor can any state make war on its own initiative except in immediate self-defense. The conduct of foreign policy and war represent the benchmark of true national independence and sovereignty; a state denied these privileges is not sovereign. Also, the states were explicitly forbidden to secede from the United States (which unfortunately was not the case under the Constitution -- about the only area in which the Constitution was actually weaker than the Articles).

Not only were the states not fully independent under the Articles, but their independence was specifically limited in the area pertinent to the ratification of the Constitution. If the states could have withdrawn from the Union, seceding from the Articles of Confederation, then the Articles' prescribed method of amendment might have been irrelevant. They could have first seceded from the United States under the Articles, and then rejoined the United States under the Constitution, using whatever ratification method they damned well pleased. However, they could not secede, and therefore the legitimate ratification method is the one prescribed in the Articles.

Just so, the sovereignity of a nation comes from history and the recognition of other nations. Law and documents are essentially justifications and codifications done after the fact. Many nations don't have formal Constitutions (I think England is one) and have gotten along very well without them

Also, legally the sovereignity of the US derives from the Declaration of Independence, doesn't it? That would mean both the Articles and the Constitution are simply laws within the Declaration's authority as establishing a country in its own right.

It's quite true that if the people accept the government of the Constitution (which they do) that is the ultimate legitimacy. But it's a raw legitimacy, a legitimacy of political will, not law. What I'm really pointing out here is that the Constitution itself represents a revolution, and was illegitimate and illegal (as are all revolutions) at the time it was implemented.

The sovereignty of the United States was declared in 1776, yes. However, all that and the victory in the War of Independence established was that we were an independent nation and no longer a colony of Great Britain. Or, to quote from the Declaration itself, in its only legally-meaningful passage:

This is the only language in the Declaration which (after the war was won) had any legal force. Everything else in it is propaganda. Note that it says nothing about what kind of government the United States would have. The Articles of Confederation, the Constitution, a fascist dictatorship, a communist collective, a monarchy, or no central government at all with the states existing as fully independent and sovereign nations, would all be consistent with those words.

Any law must rest upon the legitimacy of earlier legal acts in order to be legitimate. When the law is a constitutional law, the law must rest upon the constitutionality according to earlier constitutional law in order to be constitutional.

The US Constitution is not just the written document called the constitution, but the whole body of constitutional law, such as case law, that surrounds it as well. A legal statute may conform to the requirements of words of the written constitution, but may still be unconstitutional, because it does not conform to the case law that further explains how the written constitution is supposed to be interpreted.

Constitutionality also means that every part of the present constitution must conform to the rules of amendments at the time of said amendment. When the time seemed ripe enough for the Founding Fathers to form a better union, the Articles of Confederation WAS the written constitution of the United States of America. Constitutionality of any amendments or changes of the constitution that was the constitutional law of the land at that time would thus depend upon whether these amendments or changes were enacted according to the rules at the time.

By this, I am not saying that the present US Constitution is unconstitutional. What I am trying to say is that the question of whether or not it is constitutional, depends upon whether or not it was enacted in accordance with the rules on amendments of the US constitutional law that was the law of the land at the time - i.e. the Articles of Confederation.

I remember reading about this subject when I took US Constitutional law at my US law school. As the case was presented, the present constitution was enacted in a constitutional way. Unfortunately, this was some time ago, so I cannot remember the details. I may look into it and come back on the subject.

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I would just say "Yes".

I think there was a tendency to see only two options, (1) a national government empowered by a popular vote, or (2) a federal system empowered through the State Legislatures. While the Articles said "confirmed by the legislatures of every State", I think the intent may have been to say "confirmed by the States unanimously". So while the letter of the law may have been broken by the method of ratification, I don't see that the spirit of the law was broken.

I think it is proper, when a people are making such a great decision as whether to alter/abolish their frame of government, that they do not leave this up to their general government, but rather they elect a special body specifically to decide this one issue.

Also, the US Bill of Rights was ratified by the State Legislatures, and that seems to indicate that the State Legislatures were still players and that they were on board with the US Constitution.

That's a decent point. However, the more serious problem isn't the method of ratification, but the fact that the Constitution went into effect before all the states had ratified it. The remaining states were faced with a choice of joining the U.S. under the new Constitution, or trying to go it alone.

But was that the problem or was it the solution? IIRC, Rhode Island (or "Rogue Island" as they sometimes called it) blocked attempts to amend the Articles, and that one little State could could have bound the whole US for all time. I do not think we could have expected RI to have ratified the US Constitution when they wouldn't even consent to amend the Articles. I suspect the choice was (1) live under the Articles forever, to the detriment of the many States, or (2) have the many States frame a more consolidated government with a ratification method that RI could not block.

Maybe it was the Articles that were "unconstitutional" ... if the Articles meant that there was no right to alter/abolish government unless every State consented, and RI didn't consent, then didn't that alienate the unalieanable right to alter/abolish government?

Yes. That's probably why the convention included that nine-states bit in the Constitution. The Articles were certainly clumsy and unworkable. The Constitution is much better. I guess what I'm saying here is that the Constitution was the really revolutionary part of the American Revolution, even though it didn't go into effect until six years after independence had been won. Independence really wasn't a revolution; each colony/state had its own government, and the colonies had always functioned autonomously with the British government distant and not very effective. You could even say that the war of independence happened because, as the colonies grew larger, more populous, more civilized, and (most of all) more valuable, British interest in controlling them increased and so London tried to assert authority that had never really existed except on paper.

So independence from England really wasn't a "revolution" in the sense of changing the way things were run internally. But the Constitution changed us from thirteen largely independent and fractious states into a single federal union. And like all revolutions, it was of dubious legitimacy in the eyes of the preceding regime.

Harry Turtledove wrote an alternate history called The Disunited States of America in which the Constitution Convention couldn't resolve the dispute between large and small states, which was resolved in real life by having a bicameral legislature, one house with equal representation and the other by population. The U.S. didn't stay under the Articles in that story, it broke apart into separate states which then quarreled and fought wars with each other. I believe there were people calling for exactly that at the time (the separation, not the wars), judging by the fact that Hamilton or Madison (I forget which) felt a need to argue in favor of unity in the Federalist Papers.

so, we are technically in our "Second Republic"

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