In the AOC lecture(s) with Prof. McClanahan, he brings up the issue of legality of the modification of the AOC(^1) to the Constitution and mentions that major commentaries from the Antibellum period viewed the state of the Union itself as an unchanged compact between the states(^2). If the new Constitution was indeed a modification of the existing AOC , what was the state of legality of new Constitution from the time of 9th state ratifying it to the final 13th?
If the case of creating a new compact was offered as an answer to the above predicament, then wouldn’t the succession of individual states from the AOC have been the only legal means of creating an all together new union?
^1 AOC Powerpoint, Slide 6: “Altering the Articles required the approval of ‘every State.’ Did the Constitution destroy the ‘perpetual’ Union by allowing some States to reject the document? Is the Constitution, then, legal?”
^2 “Antibellum Commentaries” Powerpoint, Slide 14: “Clearly, many legal scholars viewed the Constitution as a compact among States, not among one people. These have been whitewashed from American history.”
“Perpetual” under the law of nations meant “not having a specific sunset provision.” Thus, a “perpetual” treaty was one without an end date. That didn’t mean that the parties were locked into it, with no way of exiting.