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.

Wouldn't it then be considered "Un-Confederational"?

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I don't think it was because, IIRC, it was never intended to build off the AoC but was ment to replace it. Once the US Constitution was ratified by the States a new nation, in essence, was created. The Confederation of States (along with the AoC) ceased to exist and was replaced by a Union of States along with the Constitution.

I could be totally off though.

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Finally! TSG comes up with a Constitutional arguement that isn't blown out of the water on its face! (And a rather intriguing one, at that!) I have no useful input at this point, just thanks for a thought-provoking topic!

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Your argument is flawed on its face, using your own quotations as proof. Look again:

This is where your argument falls apart. Note the section in bold? The alteration (the creation of the US Constitution) WAS agreed to by the Congress of the United States, and said agreement was confirmed by the legislatures of every state. That agreement was to call a Constitutional Convention to draw up a new Constitution.

Moving on to your next quote:

This is simply saying if 9 of the state constitutional conventions ratify the Constitution it would become the new law of the land. The NEW document, by abolishing the old document, sets its own standards.

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Wrong, on at least two counts. First, the agreement to call a Constitutional Convention was not, itself, an amendment to the Articles of Confederation. The proposed Constitution itself, not the agreement to call a convention to do something about the problem, was the amendment to the Articles that this language applies to. And second, the Constitution was NOT confirmed by the state legislatures, but by state conventions, which is not the way that the Articles stipulated amendments needed to be affirmed.

Either the new document constitutes a legally-achieved amendment of the old one, or it does not. There is no provision for saying, "Well, this amendment is actually a completely new blueprint for government, so we don't have to follow the existing law in putting it into place. We've written our own new procedure for doing that and since this is a new government, the new procedure applies." BZZZZTT! It's NOT a new government yet, dudes! It's only a proposed new government! Right now, we still have the old one, it's provisions not the new ones are in force, and you have to do it by the old rules. Once you accomplish that, then OK, we have a new government and the new rules will apply, but only then.

I'll give you an analogy. Suppose that somebody wanted to scrap the Constitution and adopt a unitary government in place of our current federation. So all pretenses to sovereignty on the part of the states would be done away with, the governments of the states would become agencies of the federal government responsible for administration of the state territory and population. (This would be just as huge a change as the Constitution, which replaced a confederation with a federation.) By some miracle this passes Congress with a two-thirds majority. According to the procedure for amendments spelled out in the Constitution, it should now be submitted to the state legislatures or conventions for ratification, and would become law only when enough states had said OK.

But now it's decided that, "Well, you know, this new government abolishes state sovereignty. From now on the U.S. is no longer a federal system, but rather a unitary government, so what the state legislatures want means doodly-squat. Instead, what we're going to do is submit the whole thing to a national plebiscite. We'll hold an election on the matter in six months, and what the people say goes."

Not Kosher, is it? When you're replacing the Constitution, what you're doing is amending it (drastically), and so you need to follow the procedure for amending the Constitution. 2/3 vote in both houses of Congress, check, but now you need to submit it to the states, not to a national popular vote. Once the states have approved this amendment, then sure, in the future you can amend the new Constitution via popular vote if that's the procedure written into it. But not beforehand, because what's being decided is whether it's ever going to be the new government at all.

Same with the Constitution. It needed to be voted on by the Congress of the United States (which it was), and then submitted to the state legislatures and ratified by all 13 of them (which it wasn't).

Thus, it's not constitutional. We are living under an illegal government.

You fail again.

It was never intended to be an amendment to the Articles of Confederation, it was intended to abolish them and start over. The Constitutional Convention WAS confirmed by the States, thus satisfying this portion of the AoC.

Adaptation of, or changes to, the US Constitution are obligated to meet the requirements laid out in the US Constitution, not the Articles of Confederation.
Fail AGAIN. Using that logic, the Articles of Confederation themselves were invalid.
Yeah, actually there is. Its called, among other things, common sense.
The old government's rules WERE met. They required the consent of the states to move into a new agreement. All the states agreed to the constitutional convention.
Your analogy is flawed because you chose the wrong process. There actually IS a procedure within the US Constitution for changing the entire document, and that is the procedure which must be followed.

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This has been brought up several times (it was certainly brought up during the formation of the document), and it's been shown that there really wasn't much authority for the members of the Constitutional Convention to draft a new document that would replace the old. Thus, it's essentially a wink and a nod sort of system that allowed for the Constitution to pass. Doesn't matter anymore, no sane person would go back to the crippled Articles of Confederation.

This is simply untrue. The intent of the constitutional convention was to propose amendments to the Articles to make them work better. There was no authorization to draft an entirely new government.

More to the point, an amendment is any change in the governing documents, which includes scrapping them and replacing them altogether. So the change from the Articles to the Constitution should have been treated as an amendment to the former.

The Articles specifically call for ratification by the state LEGISLATURES, and that was never done.

Do you mean adoption rather than adaptation?

If so, then you're wrong. The Constitution's own procedures for amendments, and also for ratification, cannot be valid until AFTER the Constitution becomes law, not before.

According to the government of the time, they were. There was some disagreement about the whole procedure expressed, if memory serves, in a number of British Royal regulars together with Hessian mercenaries. This is what often happens when you try to create a new government without following the law.

Scorn. No there isn't. What procedure are you talking about?

Kash: You are absolutely right. It was a wink-and-nod kind of thing. The reality is that if the procedures for amendment outlined in the Articles had been scrupulously followed, the Constitution would never have been adopted. And no, I certainly would not want to go back to the Articles, although I have in fact known a few radical libertarians who would.

Any time I see an argument like this, I wonder how many times it's come up at the great law schools of this country over the last couple of hundred years, and if the great legal minds of those institutions can't make the argument work, then it's not going to work in this forum.

I believe that by adopting and ratifying the Constitution, the Articles of Confederation were simply made null and void.
Now if one or more states hadn't ratified the constitution, those states might be a separate country operating under the Articles of Confederation, but that didn't happen.

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As a practical effect, that is true. The Constitution represented a revolution, a change of government without reference to whether it was legitimate in terms of the prior government. It was accomplished nonviolently, but a revolution it was just the same.

But here's a practical (if historical) question of some consequence. In most respects, the Constitution creates a stronger union than the Articles of Confederation did, but the Articles did contain one bit of language that the Constitution was missing: "the Union shall be perpetual." If the Constitution had contained the same language, then there would have been no ambiguity about whether the states had a right to unilaterally abrogate the agreement and become independent. And certain unfortunate events of the 1860s might not have occurred.

Might the same have been true, if the Constitution had been adopted according to the legal procedures established in the Articles of Confederation, so that it was not a revolution but rather a drastic legitimate amendment?

Nowhere in the Constitution do we have language voiding the Articles of Confederation. In a revolutionary change that is not necessary; they were voided by the very act of revolution itself. But if there had been a legitimate progression instead, then the Constitution would have needed to spell out the ways in which it departed from the Confederation, and might have done so in a way that retained the perpetuity of the union specifically stated.

The last 3 generations of American’s have been driven to war under the pretense of spreading freedom and democracy; but the words that fall from the mouths of our politicians that lead us to war, are seldom reflected in our actions and end results.

Here is a transcript from a discussion between President Johnson and Greek Ambassador, Alexander Matsas, on June 1964 following Ambassador Matsas' refusal to agree to the US Acheson plan for the partition and 'double enosis' of Cyprus

"Then listen to me Mr Ambassador. F*ck your parliament and your constitution. America is an elephant, Cyprus is a flea, Greece is a flea. If these two feckless fleas continue itching the elephant they may get whacked by the elephant’s trunk, whacked good… We pay a lot of good American dollars to the Greeks Mr Ambassador. If your Prime Minister gives me talk about democracy, parliament and the constitution, he, his parliament and his constitution may not last very long.”

Three years later in Greece…



1967: A CIA-backed military coup overthrows the government two days before their elections. The favorite to win was George Papandreous, the liberal candidate. During the next six years, the "reign of the colonels" - backed by the CIA - usher in the widespread use of torture and murder against political opponents; honoring President Johnson’s threats to Greece.

It is important to remember that President Johnson kept the United States in Vietnam from 1963-1969. It is obvious from his words to the Greek Ambassador Alexander Matsas that Johnson had no regard for the democracy or rights of other nations yet used the rhetoric to justify military funding and the deaths of close to 50,000 Americans and over 300,000 Vietnamese.

The idea that we entered the war in Vietnam under the pretense of fighting communism and bringing Democracy and freedom to the Vietnamese is hypocritical to say the least when you consider it was at a time when black people in America were still fighting for their own civil rights and freedoms yet were drafted to fight and die for the freedoms of others in foreign lands.

At this moment, we the United States of America have military occupation in 130 out of 190 countries across the world. These occupations have been supported by we the people under the guise of spreading peace, but few will argue the statement that is sent to the civilians and the governments of these occupied countries as they quickly realize that the presence of a foreign military sends a clear message that they better comply with US because we are already in their backyard.

I am writing this to you to appeal to your common sense, humanity and pride as an American. Ignoring a problem never results in a solution; the culmination of our collective ignorance and denial is today reflected in the state of our union and our struggling economy. The work ethic that founded this great country has been replaced with complacency and denial. We are beyond the point of repair and we are all left with a difficult decision; Do we carry on with business usual and drown with our sinking ship or do face the truth of what we have allowed our country to become, and demonstrate to the rest of the world that our government has been representing their personal interests above that of its people.

A government should fear its people for we have the power to replace them. If we do not stand up to our government the rest of the world will view our lack of action as complicity and agreement; and as our dollar collapses and we can no longer afford to maintain our military intimidation, we will be judged based upon our actions against the world and our inaction as American citizens to stop it.

“The first duty of society is to give each of its members the possibility of fulfilling his destiny. When it becomes incapable of performing this duty it must be transformed.”

~Alexis Carrel

The time for words has come and passed; the only course of action is to educate ourselves so that we can collectively make a peaceful stand and demand immediate changes starting with Congress stepping down which would allow the military to stand down gracefully. Change increases the odds of success, and to think that changing a figure head in the coming elections will change our course and replace what has been eroded is naďve and detrimental to our futures.

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Adam L Tucker
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To the OP:

Interesting point, but the language of the Constitution doesn't prohibit the violation of any existing laws in order to bring about the Federal Union of the states, just that nine confirm it, which more than enough did.

If anything the Articles of Confederation where unconstitutional, in lieu of a nine-state ratification of the Constitution.

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Humans live in only one temporal direction: past to future. The Constitution's legitimacy cannot come from itself. It must come from something else, something that preceded it. Since the Articles of Confederation came first, their procedures for amendment and not those of the Constitution are determinative until AFTER the Constitution has been ratified, not before. Once the new law is affirmed, then and only then does it govern, in matters relating to its own legitimacy as much as in anything else. Until the Constitution had been ratified, its own procedures for ratification were of no legal force -- those of the Articles were.

The legitimacy of the Constitution rests on a deeper, more primal rule. All law and all government rests on the consent of the governed -- that's true of unjust as well as just powers; Jefferson only got it half right. Or at least, it rests on the consent of enough of the governed that the rest of them can be coerced. The Constitution did have that consent. The willingness of the American people to overthrow the Articles of Confederation and put the new government in place is, like their earlier willingness to overthrow the royal colonial government and substitute the Articles (and their ability to make it stick), an unanswerable reality.

But that legitimacy is the legitimacy of the jungle, in the end. It is the legitimacy of force, not of law. Force trumps law, because law is the procedure put in place to have the balance of force on the side of public order, and hopefully the public good, so law is dependent on force and when it loses the force behind it then it ceases to be effective. But we should always be aware of what we're doing when we resort to such means.

100% agree, but the Constitution isn't unconstitutional, it may have violated the laws that preceded it but it in no way violated it's own edicts, which is the sole factor in rendering an act unconstitutional.

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