Why the Constitution is Unconstitutional (an academic musing)

I try to keep this blog limited to the practical aspects of the law that the layman can appreciate or apply.  This post wanders off into the world of the purely academic.  I do so because 1) it’s interesting and 2) it’s the Constitution—you know the very document our entire Federal Government is based on.  The point is that the very process and document  that underlies the creation of our Federal Government is flawed and does not deserve to be revered as sacrosanct.  This is blasphemy.  Unpatriotic blasphemy.  But here we go….

In order to determine the validity of the Federal Government we have to follow this process: 

1) Articles of Confederation              2)Plans for Revision                        3) Ratification of the Constitution.

(Creation of United States)               (Creation of Constitution)              (Creation of Federal Gov.)

1. Articles of Confederation Article VIII (Copy can be found here):

What were the Articles of Confederation (AOC)?  It was an agreement amongst the 13 states (former colonies) establishing the United States of America.  It established a Continental Congress and a Confederation type of government.  This style of government only lasted from 1781 until 1789 when it was replaced with a federal style of government under the Constitution.  The original states adopted the AOC unanimously in 1781 and said that any change to their agreement must be "confirmed by the legislatures of every state.”  In other words, any change to their confederation must be unanimous.

Article XIII. Every state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them. And 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.

2. Plan for Revision

Congress of the Confederation endorsed a plan to revise the Articles of Confederation on February 21, 1787.  The Congress (not the individual states) agreed to revise the AOC by having a Constitutional convention.  Rhode Island refused to participate.

3. Submittal and Ratification of the Constitution

The Constitutional Convention submitted the Constitution to the Confederate Congress.  The Confederate Congress then sent the proposed Constitution to state legislatures for submitting to a ratification convention.  However this Constitution did not match the AOC.  The AOC required unanimity amongst the states, while the Constitution required 9/13 states to agree for it to be binding.  (That’s a problem.)

Constitution Article VII: Ratification:

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

4. A Premature  Start

The 9^th State (New Hampshire) ratified the Constitution on June 21, 1788.  The Federal government began operations on March 4, 1789.  The 13^th and final State (Rhode Island) would not ratify the Constitution, as required by then AOC, until May 29, 1790.  

Conclusion

It probably doesn’t matter much whether the Constitution was ratified on June 21, 1788 or rather on May 29, 1790; however, it’s plausible that if the Federal Government had not started prematurely—8 months before North Carolina ratified and over a year before Rhode Island ratified—then North Carolina and Rhode Island may never have ratified its creation.  The point is it’s flawed.  It's not sacrosanct.