Paradox of Self-Amendment by Peter Suber Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the states, render the federal constitution adequate to the exigencies of government and the preservation of the Union. But notoriously the convention exceeded its mandate and wrote an entirely new document. However, the new constitution was merely a proposal that Congress had the power to discard or to take up under the Articles' AC for consideration by the states.[Note 8] The important question is not whether the convention went beyond its legal authority or the scope of its enabling resolution, for the Articles are silent on the methods of proposing revision, but whether the procedures laid down in the Articles were violated in the adoption of the new constitution. Two violations of those procedures occurred. First, the new constitution by its own terms (Article VII) would be established if ratified by nine states (and only for the ratifying states), whereas the Articles required unanimous ratification. Thomas Reed Powell, among others, thinks this defect was cured by the fact that a unanimous ratification was eventually received.[Note 9] Powell believes the constitution did not become law until the 13th state (Rhode Island) ratified; ratification by the 9th state (New Hampshire) did not suffice. On this theory, there is a strong paradox for the nation during the two-year period between the 9th and 13th ratifications (June 21, 1788 to May 29, 1790): the new document was valid under its own terms but not under the terms of the Articles. If its own terms did not suffice, then at least after the 13th ratification, apparently, all the terms of the new document would be effective. That would include the validation of the new constitution's ratification clause, Article VII, which says that a 9/13 vote will establish the constitution. Does this mean that the 13th ratification would bring the retroactive validation of the new document for the previous two years? The delegates to the constitutional convention, in writing the ratification clause of the new document, knew they were departing from the terms of the AC of the Articles. John Randolph, a delegate, defended the irregularity of the less-than-unanimous ratification terms by appeal to "necessity", on the theory that a new constitution, providing a strong national government, was necessary to preserve the union. To require unanimity, or to use the AC of the Articles, would risk defeat when the stakes were high.[Note 10] In Federalist #43, James Madison also defended the irregular adoption of the new constitution by appeal to "absolute necessity", "self- preservation", and "the transcendent law of nature and of nature's God". With some diffidence he then offered a novel theory based on international treaty law: if the Articles were a treaty signed by sovereign powers, then breaches may be found in adequate numbers to absolve all signatories of future allegiance. In Federalist #40 he offered justifications based on a waiver theory, overriding moral duty, and the curative effect of subsequent ratification. The second violation was the stipulation in the new constitution (again, Article VII) that ratification by the states without the assent of Congress will suffice, whereas the Articles required ratification by both the Congress and the states. This defect was cured, if at all, by the fact that Congress did ratify the new constitution —an historical contingency similar to the garnering of a unanimous state ratification.[Note 11] John Alexander Jameson summarized the view of many when he said,[Note 12] [I]t is clear, that the act of disregarding the [amendment] provision of the 13th of the Articles of Confederation, was done confessedly as an act of revolution, and not as an act within the legal competence of either the people or the Convention, under the Constitution then in force. The defects in the adoption of our constitution, that make it revolutionary or illegal, have also been the object of judicial notice. When the Nebraska constitution was challenged for procedural defects in its adoption, the Nebraska Supreme Court held that the challenge was as futile as one to the federal constitution, which is valid despite the well-known irregularities in its making and adoption. Brittle v. People, 2 Neb. 198, 210 (1873). Our present constitution is valid even if not validated by its predecessor. The AC of the present constitution, according to most writers, cannot be considered a self-amended product of the AC of the Articles. It is a revolutionary replacement, not an antecedently authorized one. E. Selected Suggestions by Writers Many writers have proposed changes in Article V from their sovereign position as citizens.[Note 13] Some writers have written entirely new constitutions that are serious in the sense that they are proposed for adoption and, in theory, are perfectly eligible to be taken up through proper channels and ratified. Some of these alternative or utopian constitutions are very thoughtful and challenging. Some are little more than excrescences of anger. A good example of the former was written by Virginia Woodhull,[Note 14] published in the same year (1872) that she became the first woman to run for President of the United States. (She ran for the Equal Rights Party, with Frederick Douglass for Vice President.) The amendment articles, XVIII and XIX, are not innovative except for including provision for ratifying the constitution itself. Woodhull's constitution is revolutionary in that it provides its own ratification procedure independent of antecedent authority (that is, the current Article V) and makes no pretension to derive its authority from that which it would replace. In that sense its relation to the present constitution would be the same as that of the present constitution to the Articles of Confederation. 175