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The Secession of 1786-1788

Discussion in 'Civil War History - Secession and Politics' started by jgoodguy, Mar 4, 2017.

  1. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Article used Our Unconventional Founding" by Bruce Ackerman
    Bruce Ackerman is considered an authoritative author.

    Alternative and clashing views can be found at.
    Was the Constitution Illegally Adopted? - Grove City College
    and
    The Consent of the Governed: Constitutional. Amendment Outside Article V. Akhil Reed Amar. Yale Law School.
    Philadelphia Revisited: Amending the Constitution Outside Article V Akhil Reed Amar.

    The short of it is that in the article, Professor Ackerman views the Constitution as revolutionary not evolutionary. It is a successful secession unlike the unsuccessful secession of 1860-61 and while this work does not address the latter secession, we can see the seeds of secession success vs the seeds of secession failure in this article.

    P476
    First difference between the secessions to be discussed is:
    The 1860-61 secessionists attacked the entire constitutional tradition and lost.
    P478
    And the Game is afoot.
     
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  3. OpnCoronet

    OpnCoronet Major

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    How deeply does the author go into establishing the nature of Revolution itself., i.e., there are things you say and do in promoting and establishing a revolution, that you do not (or cannot) do or say in supporting the status quo.

    Lincoln believed the form of gov't provided by the Constitution, was an experiment in gov't, such as had never been seen before in history(Revolutionary?)
     
  4. CW Buff

    CW Buff Sergeant

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    I've only gotten to p. 497 so far. A quick search seems to confirm Ackerman is a legit and reputable scholar and author, but I have a lot of problems with this article. I'm not as anti-science or anti-elitist as this statement might suggest, but sometimes experts simply overthink things, like engineers might tend to over engineer things.

    I may be missing something, but I was unable to identify the source of the passage you quoted from p. 478. It's not even apparent if it's a quote on Ackerman's part. I think it may be a stray John Quincy Adams quote, like the one he makes on pp. 487-88. Later on p. 488, he says “leaders like Madison and Wilson repeatedly indicated their belief that revolutionary, rather than legalistic, arguments provided their best defense.” This is cited, but rather than present a single Madison/Wilson quote, he provides only JQ Adams, who was fresh out of Harvard and just beginning to study the law. Seems to me Adams speaks of the Articles of Confederation ("the most sacred engagements which can be formed by human beings") like a fundamental law created by the people, rather than a treaty created by nation-states.

    I'll give just a couple major examples of other problems. First, Ackerman suggests the state legislatures violated their constitutions when they called for state ratifying conventions (pp. 484-85). Somehow he recognizes these were completely different from the conventions provided for in constitutions like those of MA, NH, and PA (conventions which could only recommend changes to state constitutions, not ratify them), but fails to realize that is exactly why these are not violations. These constitutional provisions dealt with the alteration of state constitutions, not the consideration of a federal constitution. So the question is what in any state constitution prohibited the states from considering a new federal constitution by whatever means were deemed most appropriate?

    Second, on p. 497, Ackerman seems to misrepresent Article XIII completely. He says “The commissioners had taken upon themselves the right to propose a fundamental change in constitutional law. While Article XIII had confided exclusive authority in Congress to propose amendments, Annapolis was making an end run around the existing institution by calling for a second body, the convention, unknown to the Confederacy’s higher lawmaking system.” First, XIII does not address the proposal of amendments, only implementation thereof. Second, it doesn't refer to Congress, it refers to “a congress of the united States” (small “c” and small “u”). Lastly, the Confederation had no “lawmaking system,” it had a rule-making system. The Congress of the Confederation did not make laws. Read the Articles; the word law appears twice, referring to “lawful agents” of the states. The Founders, I believe, would have found it odd to suggest laws could be made without sovereignty. I think Madison likened the acts of the CofC to bylaws. Ackerman himself seems generally careful not to say the ratification of the Constitution violated standing laws (he uses the term "rules" over and over).

    If the Articles were in fact a treaty, then don't all the claims of state compact theory proposed c1830-1861 genuinely apply to it. I don't have specific examples, but I believe federalists (I'll use a small "f" for this point in history) claimed all of the states had violated the Articles, in one way or another. None more than Rhode Island (which some derisively called Rogue Island). How could Rhode Island for instance complain about the violation of an agreement they had already violated? I'll admit, the federalists did a bit of bootstrapping. In fact, that's an understatement. But was that illegal, or even inappropriate, given that antifederalists, who had successfully whittled down the Articles 1776-1777, would of course oppose them tooth and nail? Playing politics, launching a sneak attack , etc. were necessary and smart, but was this wrong (Patrick Henry did in fact smell a rat)? And I believe there certainly was a concerted, orchestrated federalist plot to consolidate the Union, at least as far as establishing an effective government. But maybe antifederalists in the states should have struggled much harder for mutual compliance to the Articles, which they themselves had intentionally made weak against the wishes of the federalists. Men like Washington and John Adams struggled through the Revolution as a result of that weakness. If not for their above-and-beyond-the-call-of-duty efforts, the Articiles (which I believe were unofficially adhered to 1777-1781) would likely have proven too weak even to achieve victory and independence.

    The question comes down to this: could the Articles be considered void via mutual noncompliance? If so, then all we have is 13 independent states coming together to form a federated union (i.e. federation). Is there any reason why that could not be as ad-hoc as the formation of the Confederation was 1776-1781?
     
  5. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    There are alternative views that include your viewpoints. At least one considers the Constitution to be a defacto amendment to the AOC. Looks like the fight of SC's sovereign right to call its citizens what it wants to call them is winding down and I may get back to this.
     
  6. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Quoted from We the People, Volume 2: Transformations By Bruce Ackerman P12
     
  7. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    You are beyond my presentation of the article and we will address it when we arrive there.
     
  8. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Again you have gone beyond my presentation of this article, so we will address this when we get there.
     
  9. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Unconventional Founding" by Bruce Ackerman
    P478
    We will not visit the Great Depression. Ackerman's ideas is that in 3 crisis of Constitutional law, out of the box thinking saved the United States. We will take a look at his ideas and supporting evidence.
     
  10. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Unconventional Founding" by Bruce Ackerman
    P479

    I. THREE LEGAL OBSTACLES

    Take up an objection here.
    Looking at
    Seems to me that:
    • An amendment is a change.
    • Any change is a question.
    • All questions are only submitted by members of the Confederation.
    • The only members of the Confederation are States.
    • States are represented by representatives in Congress.
    • Therefore questions can be only be submitted by States through their representatives in Congress.
    • Therefore all questions originate in Congress.
    • Therefore "First, XIII does not address the proposal of amendments, only implementation thereof. " appears false because all questions originate in Congress.
    From the AOC.
    Congress is not a continuing body in the AOC. When it adjourns it is ended until the next Congress is called into secession. This continues to today One Hundred Fifteenth United States Congress is the current US Congress. a Congress. Article refers to "a Congress of the United States" and that is simply the next one in line.

    Constitution law is about the relationships of sovereigns in a constitution.
    Which is different than statute law which the AOC is silent about. In the AOC, the States judged Constitutional Law. Seems to me that Ackerman is correct.
     
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  11. OpnCoronet

    OpnCoronet Major

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    I believe Madison addressed the issue of ratification o in the debates at the Constitutional Convention. He noted that ratification by a convention of the people's representatives completely divorced from any state legislatures. was preferable to any other means. One of his main reasons for doing so, was the fact, that he knew of some state constitutions that would forbid such action by their legislatures.
     
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  12. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    I hope to present more evidence along that line. I think the bottom line is that States as soverign entities were not well regarded. Or not regarded well enough to prevent the diminishment of their sovereignty. This seems to be a familiar theme in both Akhil Reed Amar and Bruce Ackerman's works is that at critical points in US history the States fail the nation as soverign entities and are diminished.
    or IMHO "So much for State Sovereignty".
     
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  13. trice

    trice Major

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    The 1860-61 secessionists did not attack the entire constitutional tradition. They adopted for themselves a Constitution virtually identical to the US Constitution. Those items they changed seem almost entirely related to slavery.
     
  14. trice

    trice Major

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    State sovereignty was deliberately reduced by the States themselves under both the Articles of Confederation and Perpetual Union and the Constitution. The States have also deliberately reduced their own sovereignty at other times -- such as when they voluntarily negotiated away control of the State Militia (the National Guard) in return for Federal funding. That was done in 1903 in the Dick Act, an attempt to correct for the horrendous performance of the state militia system in the Spanish-American War.

    BTW: yes, the bill really was called the Dick Act. Officially the Militia Act of 1903, but Charles Dick was the Ohio Congressman and Chairman of the House Militia Affairs Committee who pushed it through. He was also president of the National Guard Association of the United States.
     
    Last edited: Mar 15, 2017
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  15. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    In the case of the AOC, the States retained their sovereignty, but delegated a few things such as foreign relations to an agent, the AOC. In the case of the Constitution, the people and not the States divided sovereignty between the federal government and the States. One can argue that the States as being a sub-unit of the United States was defined then and not before.
     
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  16. trice

    trice Major

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    The AoC is merely an agreement. By ratifying it, each and every state gave up large amounts of sovereignty to a central government, that of the United States of America, the Union. This was a bargain they made in order to survive and win their freedom from Great Britain.

    Below are all limitations on the sovereignty of the states in Article VI. Essentially, they have given up the right to have a Navy, to conduct relations even with the other states, to make war, and limited their own ability to charge taxes. Article IX defines other matters in which they have make themselves subordinate to the government of the United States.

    VI.
    No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

    No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

    No State shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled, with any King, Prince or State, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain.

    No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

    No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in Congress assembled, and then only against the Kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the United States in Congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the United States in Congress assembled shall determine otherwise.

    The government they created was weak and ineffectual -- but they had definitely given up large amounts of sovereignty to it. Even as an example of a league confederation against others in history, the government of the AoC is weak. That is why the Founding Fathers decided to change it.
     
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  17. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    I disagree because like any voluntary agreement, the States of the AOC could not only leave the AOC at anytime without penalty and ignore the provisions of the AOC and did. The bond of the AOC was the word of the States and it was not worth much.
     
    Last edited: Mar 15, 2017
  18. trice

    trice Major

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    What makes you think that?
     
  19. NedBaldwin

    NedBaldwin Captain

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    Seems to me that to leave or ignore the AOC was a violation of its terms -- "the Articles of this Confederation shall be inviolably observed by every State".

    Jefferson felt that there could be penalty for ignoring the provisions of the AOC:

    "It has been often said that the decisions of Congress are impotent, because the Confederation provides no compulsory power. But when two or more nations enter into a compact, it is not usual for them to say what shall be done to the party who infringes it. Decency forbids this. And it is as unnecessary as indecent, because the right of compulsion naturally results to the party injured, by the breach. When any one state in the American Union refuses obedience to the Confederation by which they have bound themselves, the rest have a natural right to compel them to obedience." - TJ 1786​
     
  20. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    I agree about the violation of terms, but what is the downside. Like I posted "The bond of the AOC was the word of the States and it was not worth much." I could promise you the genuine lunar blue cheese imported from the moon if you will agree with me, but if I do not what is your recourse or mine if you do not? Worst with the AOC because there is no national court and no enforcement mechanism. Words without enforcement are not very durable.
    Of Sovereignty and Federalism
    More later.
     
  21. trice

    trice Major

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    In the end, all thirteen states approved the Constitution, making the entire process completely legal under the Articles of Confederation and Perpetual Union. The Union itself continued to exist and no state ever left it (doing so would require all of the states to approve the action).

    During the adoption process, there are certainly points to argue about -- but once it is all over it completely conforms to the procedure specified in the Articles and everything becomes moot.
     

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