United States Constitution

Legality of the Constitution

One historical controversy is whether or not the Constitution was illegally adopted.

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For example, historian Joseph Ellis in Founding Brothers charges that there is truth in the allegations that the:

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• "Convention was extralegal, since its explicit mandate was to revise the Articles of Confederation, not replace them."
• "Machinery for ratification did not require the unanimous consent dictated by the Articles themselves."

Constitutional lawyer Michael P. Farris disagrees, arguing that:

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• "No limits were placed on the authority of the convention to make amendments," and that the Constitution is, in effect, simply an amended version of the Articles of Confederation.
• "Congress and all thirteen state legislatures approved the new ratification process as required by the Articles." Eleven states held ratification conventions (approved by their legislatures) and approved the Constitution by July 26, 1788, a direct approval of the change in procedure. The other two states' legislatures (of North Carolina and Rhode Island) also approved of the ratification process—North Carolina by holding a convention and Rhode Island by submitting the Constitution to a referendum, although they both rejected the Constitution (at first). Thus, the change in procedure was approved by all the states.