Monday, November 17, 2003

One more funny thing about amendments: the Constitution sets out the form for its own amendment. But so did the Articles of Confederation, which required unanimous consent for any alteration (Art. XIII). Thus, one would naturally assume that to adopt the Constitution, unanimous consent would've been necessary.

But that's not what happened. The Constitution set out its own mode of ratification (Art. VII). The weird thing is, the Constitution wasn't law when it set this out - the Articles governed the nation until, at the latest, March of 1789 (see Owings v. Speed (1820)), or at the earliest, June 21, 1788, when the ninth state, New Hampshire, ratified.

How can a document that's not law create its own method of enactment, when governing law has a conflicting method? The bottom line: Art. V's state convention requirements don't mean much. Once you have a runaway convention, they make their own rules. Given the nation we got out of it, I'm not complaining.

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