Prior to our current government under the Constitution, the union known as the United States of America operated under the Articles of Confederation.
Article XIII of which stated not only that the Articles "shall be invioably observed by every State," but that the Articles may never be altered "unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State."
When the Constitutional Convention was called in Philadelphia, only twelve of the thirteen states sent delegates. Rhode Island boycotted the convention.
Yet Article VII of the proposed Constitution that was agreed upon at the convention stated that its ratification (and subsequent altering of the Articles of Confederation) required approval of the state conventions of only nine states.
To put it more simply, altering the Articles of Confederation required the approval of all thirteen states. There were only twelve states represented at the convention which produced a constitution that required only nine states for ratification.
Neither nine nor twelve is thirteen.
While one might argue that eventually the conventions of all thirteen states ratified the Constitution and this could be considered tacit approval of the legislatures of all thirteen states and that the nine state requirement of the Constitution's Article VII is ultimately moot, this doesn't tell the whole story.
The whole story must include Rhode Island.
As stated previously, Rhode Island boycotted the convention and sent no delegates.
Further, even over a year after the first Constitutional Congress and President had been in office, Rhode Island had still not ratified the Constitution.
And if Rhode Island did not ratify the Constitution, how could the new government be considered legitimate given the unanimous requirement of Article XIII of the Articles of Confederation?
Quite simply, it couldn't.
So in late April, 1790, Congress set about, in the best Mafia tradition, making Rhode Island an offer it couldn't refuse.
And on May 11, the following was reported in the Senate (Gales & Seaton's History of Debates in Congress, p. 1009):
The Senate proceeded to consider the report of the committee appointed the 28th if April, to consider what provisions will be proper for Congress to make, in the present session, regarding the State of Rhode Island; whereupon,
Resolved, That all commercial intercourse between the United States and the State of Rhode Island, from and after the first day of July next, be prohibited, under suitable penalties; and that the President of the United States be authorized to demand of the State of Rhode Island _ _ dollars, to be paid into the Treasury of the United States by the _ _ day of _ _ next; which shall be credited to the said State, in account with the United States; and that a bill or bills be brought in for those purposes.
Ordered, That the committee who brought in the above report prepare and report a bill accordingly.
A bill was introduced in the Senate to that effect, passed, and sent to the House.
And, when faced with either ratifying the Constitution or facing eminent economic destruction, a couple weeks later Rhode Island decided to ratify the Constitution.
President George Washington presented the news to the Senate on June 1, 1790 (ibid, p. 1017):
The following message was received from the President of the United States, and was read:
Gentlemen of the Senate and the House of Representatives:
Having received official information of the accession of the State of Rhode Island and Providence Plantations to the constitution of the United States, I take the earliest opportunity of communicating the same to you, with my congratulations on this happy event, which unites, under the General Government, all the states which were originally confederated; and have directed my Secretary to lay before you a copy of the letter from the President of the Convention of the State of Rhode Island to the President of the Untied States.
As to legitimacy, in my opinion any decision made under duress is not a legitimate one. Therefore, by the supreme law of the land at the time of the convention, the Articles of Confederation were never legitimately altered, repealed or replaced.
Of course there's absolutely no chance that our present government under the Constitution is ever going to be repealed, nor am I of the opinion that it should or that the Articles of Confederation are superior to the Constitution.
I only present it here as it's something I hadn't previously been aware of and thought I'd share my opinion on it.