A constitutional paradox

Today (15 Nov 2018) is the 241st-year anniversary of the ratification of the Articles of Confederation and Perpetual Union. (The complete text of the Articles of Confederation is available here.) This weak confederation, however, did not last long, as it was replaced by a new national government on 21 June 1788, when New Hampshire became the ninth State to ratify a replacement constitution. (When our Founding Fathers proposed the first draft of the Constitution on 17 September 1787, they agreed that the new constitution would not become law unless nine of the original thirteen members of the existing confederation ratified it.) But Article XIII of the Articles of Confederation states:

Every state shall abide by the determination 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.

So, wasn’t the original Constitution temporarily unconstitutional, at least until Rhode Island became the thirteenth State to ratify it? More problematically, the new constitution was ratified via single-purpose ratification conventions convened in each one of the states and not by state legislatures as required by Article XIII of the previous Articles of Confederation.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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