What is the legal status of America's first constitution—the Articles of Confederation?
Year: 2025
Type: preprint
Abstract: What is the legal status of America’s first constitution—the Articles of Confederation? "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 con-firmed by the legislatures of every state." The Articles of Confederation 1777 The Articles of Confederation were not formally amended article-by-article under Article XIII, but they were altered in effect (de facto) by the unanimous accession of all states by 1790 to a new governing framework adopted and operated by the same sovereign actors, preserving the perpetual union and continuity of American government. 1. Who objected to the Constitution (1787–1789) There were serious, principled objectors, but they objected before ratification, not in October 1789 inside the dying Confederation Congress. Key figures who argued the Constitution was improper or illegitimate in substance or process: Major Anti-Federalist objectors Patrick Henry (Virginia)Argued the Constitution was illegitimate because it bypassed the Articles’ unanimity rule and consolidated power away from states and people. George Mason (Virginia)Refused to sign the Constitution; objected to lack of a Bill of Rights and consolidation of federal power. Elbridge Gerry (Massachusetts)Signed the Declaration but refused to sign the Constitution; warned it would enable tyranny. Samuel Adams (initially)Opposed ratification until amendments (Bill of Rights) were promised. Richard Henry LeeArgued the Constitution was not a lawful amendment of the Articles. Rhode Island (institutional objection) Rhode Island refused to send delegates to the Constitutional Convention. Refused to ratify until May 1790, after the new government was already operating. Argued the Constitution violated state sovereignty and the Articles’ amendment rules. Important:These objections were made in state conventions and public debate, not in a functioning alternate “Continental Congress” after 1789. 2. Why there was no post-1789 Continental Congress objection By October 1789: The new federal government was already operating The First Congress had passed laws Washington was President Courts were forming States were participating de facto There was no quorum, no funding, no recognition, and no political appetite to convene a rival national body under the Articles. Even Rhode Island: did not convene or send delegates to an alternate Congress instead applied pressure via trade resistance and delay ultimately ratified So there was no single delegate in October 1789 who stood up in a functioning national body and declared the Constitution improper. That fight had already moved on.
Source: OSF Preprints (OSF Preprints)
Author: Izzo, Daniel
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W7116318871
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