Was the US Constitution Unconstitutional?

In the United States we have a nearly universal reverence for our Constitution, the Constitution of 1789 together with its amendments. Largely inspired by the aura of that great document, citizens of the United States tend also to be strong constitutionalists, lower case, believing that every nation should be governed by a written constitution guaranteeing rights, representation, legality, and stability.

It is something of an irony, then, that the Constitution appears, at least on the face of things, to have been unconstitutional.

This is not a trick thesis. It is also an unoriginal one. That the Constitution of 1789 was unconstitutional was mooted by anti-federalists at the time, and the objection has come down to us, if mostly in footnotes.

It is all very straightforward. The constitution of the United States in 1787, when the Constitution was being drafted, were the Articles of Confederation, ratification complete 1781.  Its Article XIII:

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.

This perpetual Union, unalterable except by act of Congress unanimously ratified by the states, was put aside by an instrument drawn up, not by Congress, but by a convention and ratified by conventions in the states, not state legislatures. By the terms of the constitution drafted by the convention, it would go into effect when ratified by nine states, contrary to the unanimity requirement of the Articles. “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” (Constitution, Article VII)

The drafters of the Constitution did not include any provisions specifically addressing the transition from the Articles to the Constitution, although the Supremacy Clause makes it clear that the Articles are wholly replaced as the “supreme Law of the Land.” The only mention of the Confederation is that its debts are assumed under the new constitutional framework. 

The question arises, why wasn’t the Constitution invalid?  It purports to do what was constitutionally prohibited. It constituted an ultra vires act on the part of the representatives to the Convention, a point that was made in Congress on September 26, 1787, when there was a proposal to reprimand the Convention delegates. The ratifying conventions were also, of course, ultra vires under the Articles. 

I will examine some theories upholding the constitutionality of the Constitution against these apparent defects. My conclusion will be that the best of them are only successful in part, but that this should only occasion discussion about our theoretical commitments to constitutionalism not a rush to the barricades against an illegitimate federal government.  

First theory: Moribund Articles of Confederation. 

Some lightweight civics textbooks suggest the theory that the Articles of Confederation, having failed sufficiently to integrate the states into an efficient polity, had become a dead letter. No longer being effective, they were no longer in effect. Therefore, the Articles could not be violated either by the procedures establishing the Constitution or its content. It is a corollary that events had worked a dissolution of any claims the states had on each other through the Articles.

I do not know as much of the history as is relevant here, but what I do know makes this theory seem silly. With all their defects, the Articles were still in effect and the Confederation was a going concern at the time of the drafting and ratification of the Constitution.  The Articles governed the Congress. The Confederation Congress functioned, if not always very well, and passed some significant legislation. So the theory that the Articles of Confederation had died a natural death is untenable.

Second Theory: Substantial Compliance.

A slightly more eligible theory is that the process of establishing the Constitution was, after all, valid under the Articles of Confederation because it substantially complied with amendment procedures of the Articles.  The Convention can be seen as an adjunct body to the Confederation Congress.  It was Congress that issued the Convention invitations to the states and that transmitted the Convention’s draft to the states for ratification.  Congress did not actually vote its approval of the draft, but let us be generous and take its transmission to satisfy the “to be agreed to in a Congress” provision of Article XIII. In a second exercise of generosity, let us take the state conventions to have sufficient connections to the legislatures in each of the states to count as satisfying the ratification by state legislatures provision of the Articles.

There remains, however, the unanimity requirement.  This is harder to get around. Nine of thirteen may be substantial compliance in some settings, but not for an explicit unanimity requirement and especially where that requirement functioned as a guarantee against being ganged up on. It was insisted upon by the states, which were ceding a portion of their sovereignty to a new federal entity. The conclusion seems inescapable that a provision that would end the perpetual union of the Confederation on a vote of nine states was not substantially compliant, but constitutionally invalid. 

Third Theory: Retroactive Compliance Plus Ratification of the Non-complying Period.

This theory grants that the Constitution may have been invalid as proposed and when it initially went into effect with the ratification by ninth-in-line New Hampshire. It contends, however, that this technical defect was cured when the Constitution was finally ratified by Rhode Island, the thirteenth state. 

One embarrassing implication of this theory, as so far elaborated, is that the Constitution was not valid until after the election of George Washington as President, after the election and seating of Congress, after the passage by Congress of the Bill of Rights, and after the first sessions of the Supreme Court. Also established by Congress during this period of arguendo constitutional invalidity were the Treasury and War Departments, lower federal courts, and the office of Attorney General.  Presumably, all these many works of constitutionally defective bodies were also nullities, constitutionally speaking.

Perhaps, however, all this became constitutionally sound ab initio, or if you prefer, nunc pro tunc, and in any event as if they had been constitutional all along with the ratification of the Constitution by Rhode Island. The convention voters of Rhode Island were fully aware of all that had gone on in New York and Philadelphia. In ratifying the Constitution they were surely accepting these realities as well. In this respect their position was not very different from that of Vermont, the first state outside the confederated thirteen to join the union.

So, even if dyed in the wool formalists insist that the federal government was unconstitutional until May 29, 1790, Rhode Island and North Carolina were the only parties who could have complained of this unconstitutionality.  (Virginia and New York also ratified after the new government was technically in existence, but their ratifications followed New Hampshire’s so closely that nothing much had happened.) Ratification by North Carolina and Rhode Island  waived any rights those states had to complain. 

The crucial problem with this theory is not in its retroactivity but, again, its non-compliance with unanimity required by the Articles. We no longer have the question whether nine is substantially thirteen. We have our thirteen, but only if the ratification by Rhode Island is substantially the ratification called for in the Articles. This is where I think the theory fails. 

By the time it finally ratified the Constitution, Rhode Island was no longer in a position of equality with the other states. Its former co-equal contracting parties, having terminated the perpetual Union, put Rhode Island in a take it or leave it position. Although the Articles had given it the power to veto any dissolution of the Confederation, that Confederation was gone without Rhode Island’s consent, and its remaining options were only to join the new federation or take its chances as an independent Lilliputian nation. This was, perhaps, not coercion in the strictest sense, but Rhode Island’s previous rejections of ratification, once by an overwhelmingly negative referendum, are evidence that ratification was something less than the free expression of heart-felt preferences. Certainly it would be a stretch to say that Rhode Island’s ratification fulfilled the unanimity requirement of the Articles. Without Articles-unanimity, of course, all hope for a retroactive cure is lost. 

Fourth Theory: Nullity of the Article’s Perpetual Union and Unanimity Clauses. 

The purport of the Articles to create a perpetual confederation, absent unanimous abrogation, may itself have been a nullity as a matter of higher law – natural law or sound political theory. Sovereign states, it has been argued, always have a right to withdraw from a confederation into which they enter. This right of secession is an essential feature of sovereignty, and one that cannot be lost or waived – so long, at least, as there is reasonable continuity in the state, its people and territory. Rhode Islanders may have thought that their neighbors in Connecticut were bound not to abandon the perpetual Union and enter a different one without the agreement of Rhode Island, but in this they were mistaken. The representatives of Connecticut were incompetent so to bind that sovereign state.

This metaphysics of sovereignty required by this theory is pretty extravagant. Moreover, a strong right of secession would be a serious disincentive for states to enter into federations in which they become highly interdependent – which would seem to be much of the point of federating. The common law of contracts permits the unilateral abrogation of a contract only under special circumstances, and there is a very good reason for this. Very much the same considerations support the validity of a clause in a compact between states that binds them not to opt out, and, of course, a unanimity requirement for amendment does just that. So the required principle of international natural law or political theory is implausible, and this argument fails to invalidate the key provision of the Articles pursuant to which the Constitution was unconstitutional.

Fifth Theory: The Superior Content of the 1789 Constitution Trumps – or "The Articles Were No Constitution."

The US Constitution is not so much celebrated for the process by which it became law as by its content. The same is true for constitutionalism writ large. Those who the support the existence of constitutions almost always cite their entrenching of just fundamental political institutions, rights, and liberties. Yes, also cited is the value of stability, sometimes elaborated with Burkian observations that the old ways are repositories of the wisdom we humans have gained through the ages. Many of us, however, tend to be skeptical of much of the legacy of history: racism, sexism, nationalism, war, religious intolerance. Stability of unjust regimes is no virtue. Robust legality can be achieved without a constitution, at least, without an entrenched constitution of the sorts we are focused on here. So it is because of their promotion and protection of just institutions and practices that constitutions are favored by so many political theorists.

Perhaps it is the superiority in content of the Constitution over the Articles that will save the former from the charge of unconstitutionality. This is reminiscent of but different from our first go at defending the constitution, which deprecated the Articles as ineffective or moribund. We now accept that the Articles were in effect but consider the possibility that the Articles, considered against the Constitution as a model, fall short of the status of a constitution because of their meager support for representative democracy and basic rights.

In several important respects the Constitution clearly was superior to the Articles of Confederation. The Articles did not guarantee to the States a republican form of government, as the Constitution does (Article IV, Sec. 4.), albeit a guarantee that the Supreme Court has declined to enforce with judicial review. So far as the Articles were concerned, South Carolina could have become a monarchy. The Articles also lacked the “internal bill of rights” of the Constitution, habeas corpus, ex post facto, bill of attainder (Article I, Sec 9), criminal juries (Article III, Sec 2). Moreover, the Articles were famously weak on the separation of powers.  If the Constitution is given credit for its first ten amendments, then the difference with respect to rights protection between the Articles and the Constitution becomes, of course, yet more pronounced. 

One might go so far as to say that the Articles were less a constitution (in the sense in which constitutions have a special place in political theory) than they were a mere treaty of cooperation among states.

This demotion of the Articles to non-constitutional status because of its defects in comparison to the Constitution is, to my mind, largely undermined by the crucial respect in which the Constitution was a large step in the wrong direction. Guarantees of liberty that do not rule out slavery ring hollow. The Articles left slavery in the hands of the individual states, and were fully compatible with slavery's  continuing forever, but the Constitution was worse. It affirmatively supported slavery, requiring each state to abet the institution by returning to the slave owners all slaves whose attempt at basic liberty had brought them into the state's territory. (Article IV, sec 4)

The catechism of the civic religion of the United States has it that its support for the institution of slavery was a regrettable, but necessary, compromise essential to the greater good of national unity. Is it credible that bringing more states into a federal union may, as a matter of morality or political theory, be purchased at the price of support for slavery? To my mind the superiority of the Constitution over the Articles of Confederation became truly clear only with the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments. 

No conceivable account of retroactivity is going to reach back from 1865 to 1789. So, if an enactment does not count as a constitution unless it has at least minimal protection for liberty, then the Articles were no constitution, but neither was the Constitution.

Sixth Theory: Constitutionality Relativized.

It is no complete defense of the constitutionality of the Constitution, but it does defang the charge of unconstitutionality, if we moderate the conclusion towards which the Fifth Theory presses by recognizing different levels of nearness to the constitutional ideal. We would then want to particularize all our ascriptions of constitutionality or unconstitutionality by referring to the specific constitution or constitutions involved. Article VII of the Constitution was not, then, unconstitutional sans phrase, but only unconstitutional per the Articles of Confederation.  One might call this the “subscript treatment” of constitutionality. The Constitution of 1789 was not constitutional sub the Articles, but the Constitution of 1789 and the Constitution of 1791 (with Bill of Rights) were constitutional sub the Constitution of 1789 (the former simply because it was not internally inconsistent.)

Moreover, as the reader may well have been wanting to interject all along, history shows that the Constitution of 1789 and its successors have been accepted as, and have functioned in all important respects as, a constitution.  For this reason saying that the Constitution was unconstitutional in 1789 is misleading because the movement of political thought and political practice has taken us far beyond the relevance of constitutionality sub the Articles.  It would be beyond misleading to say that the Constitution is now unconstitutional on a theory that what is initially void, because of a conflict with its natal constitutional regime, can never emerge from voidness. 

Reflections on Constitutionalism 

Still, the embarrassments of the birth of the Constitution out of the Confederation give rise to some worthwhile questions about the relation of the Constitution to political theories of constitutionalism and to the force and place of constitutionalism itself.  Consider the democratic bona fides of the 1789 Constitution. 

The voting-eligible population of the United States today is over 258 million. The total number of citizens who voted in the ratification conventions in the thirteen states was 1648, of whom 1071 voted in favor. Note that this is less than 3/4.  It takes concurrence of ¾ of the states to amend almost all the provisions of the Constitution. If you wanted to lower the age for the election of a senator, each ratifier of 1789 enjoys a many thousand to one effective leverage advantage against you on the issue. If you would like to modify the circumstance that a California voter has approximately one seventieth the say that a Wyoming voter does in the election of senators, then the Constitution ratifier has completely the advantage of you. This most anti-democratic provision of the Constitution, equal representation in the Senate, cannot be modified without the consent of each state (e.g. Wyoming) that would lose its advantage thereby. 

On what moral or political theory ought the thousand long dead white,  property owning, and nearly all Protestant, men have so much more say than we do on the shape of the political institutions that govern our lives? That they, themselves, acted unconstitutionally (per the Articles) in creating and entrenching their preferences heightens the irony.

If you believe, as I do, that it would be morally permissible  (as a last resort) to banish and prohibit slavery or rituals of human sacrifice by exercising your overwhelming threat advantage (which you have with the unquestionable authority of a philosophical thought experiment), then you are committed in principle to some form of constitutionalism. (For a little more detail on the form this thought experiment might take, see my post for 7/15/14 “Jefferson Davis and the Right to Abolish Slavery.”) You believe that some evils are so great that no majority, nor even supermajority following the fairest of procedures, has a right to perpetrate them. That is the ultimate justification for the existence of a constitution with some measure of entrenchment (difficulty of amendment). 

 

Exactly what evils are so great that they should be guarded against by constitutional entrenchment is obviously a fruitful topic for discussion. What is clear is that the more details of our ideal society we would like to entrench, the less robust the entrenchment ought to be. It is right to be concerned about the possibility that a future majority may want to act unjustly. At the same time we should be concerned about the possibility that the constitution makers will make mistakes – serious ones like the fugitive slave clause, or less serious ones, like age requirements. 

What surprises me, given the history, is that there is such veneration for the Constitution of 1789 and for the persons and process by which it was put in place. Those of us whose instincts are broadly egalitarian with respect to the distribution of political power should, I think, be but cautious and limited constitutionalists even if we are also strongly committed to rights and particularly to liberty.