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The winding down of the AOC

Discussion in 'Civil War History - Secession and Politics' started by jgoodguy, Aug 29, 2011.

  1. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    One problems in arguing the 'Union' is what is it? Is it a philosophical construct, a form of government or synonymous with the country of the United States.

    Does a change in the union, in the relationship of the states/States to each other create a new Union? If so we have had several unions. If the name United States is determinate, then one. Is the union of the 'united States' of the DOI, and the AOC the same as the United States of the Constitution? For political rhetoric of the Civil War it is important. For CWT important because some secessionists arguments hinge on a difference and the unionist response on no difference.

    Does change create a different entity or not is a philosophical one.
    Perdurantism(AKA another headache in logic)
     
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  3. trice

    trice Major

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    So if your representation doesn't show up in Congress, your state has somehow left the United States? That makes no sense and there is nothing in the Constitution that would support it. Also nothing in the Articles of Confederation.

    A state cannot leave just because the state feels like it. The state has made a bargain and has obligations it must fulfill.

    It is the ratification of the Articles by each state that makes the agreement binding on each state. Rhode Island promised to remain part of the Union when it ratified. The other states never expelled it from the Union, and the Union continued unbroken.

    All that is going on here is a normal voting process on a very contentious matter. The Congress of the Confederation has voted to pass the Constitution on to the states for ratification, so step 1 is done in September 1787. Step 2 is in progress, state by state, with no time limit specified, from then until Rhode Island ratifies in May of 1790. It is not particularly surprising that it took over two years to get the Constitution ratified by all of them (Sept. 28, 1787 to May 1790) -- it took a stubborn Maryland more than three years to ratify the Articles of Confederation (Nov. 15, 1777 to January 30, 1781).

    By June 1788, nine states have ratified the Constitution, putting it into effect between themselves according to the Constitution. Two more ratify within a month (Virginia and New York) -- they were not "out". All of those states are still participating, using the government of the AoC through the Fall, setting up the elections for the Constitution, carrying on Foreign Relations, running the military, until they adjourn in October (a normal event, Congress was normally out of session in those days).

    Through the Winter, members of congress sometimes came together to meet, but never enough for a quorum at any time. The last member to actually show up came on March 2nd, 1789 -- two days before the government of the Constitution was to start -- and he was from New York State. It appears Rhode Island and North Carolina abandoned their representation as much as any other state.

    Sooner or later, NC and RI were going to be in-or-out on the Constitution. The other 11 did not want them to be independent (that would have caused problems). NC's convention had neither accepted nor rejected the Constitution in August 1788 (they did suggest amendments). in 1788-89, NC sent a man to work with the new government being set up (Hugh Williamson, a member of the Philadelphia Convention) who worked to maintain cordial relations. NC said it was concerned about liberties; Congress passed the Bill of Rights and sent it to the states. NC ships were exempt from duties in all US ports; NC collected tariffs at their ports but gave them to the US government after ratification; George Washington started establishing a government. By November, when the NC constitutional convention met again, it was assumed that ratification was a sure thing, and it was immediately voted through.

    That leaves us with RI, which may have been the least democratic state in the Union. Half the white males in the state were not allowed to vote, and the legislature refused to call a convention. RI was deeply in debt, trying to peddle its' own paper currency which most people assumed was worthless, and looking for a bail-out from the central government. The citizenry were deeply divided and a civil war almost erupted at a big political barbecue on July 4, 1789.

    As 1790 opened, the new government of the Constitution was in a strong position and Rhode Island's was getting worse. As a convention was finally scheduled in RI (two sessions, one in March, one in May), Congress got sick and tired of being held up. They didn't bring the hammer down on RI, but they did show the steel hand without the nicety of a velvet glove. A bill passed the Senate insisting RI pay their debts to the nation, talking about sanctions -- and they let it be known the George Washington (the man who won the Revolution) would be told to collect the debt. Word of that was circulating in RI as the second session started. Ratification followed quickly, followed by RI representation in Congress in June.

    At that point, there were a lot of people talking about setting RI adrift. Thomas Jefferson seemed happy to think they might be gone. The members of the Senate were willing to go on the record for harsh measures. Essentially they were telling RI to make up its' mind right away. Forced to face reality, RI decided it really wanted to go along with the rest. Congress did help them out on debt, but not quite the bailout the RI politicians wanted (RI paper currency was rejected; many old politicians suffered economically).

    I would compare the state of RI in early 1790 to being in the Catholic theological state of Limbo. Limbo is not official church dogma; it is a concept that came up to explain how God might treat babies who died before Baptism, contaminated in theology by Original Sin, yet blameless in and of themselves. Hell and Purgatory seemed too harsh a punishment for such from a just God, but Original Sin would keep them out of Heaven -- so the concept of Limbo was born as a place to put them.
     
  4. Andersonh1

    Andersonh1 2nd Lieutenant

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    Of course not, but that is hardly the same thing as the states replacing the entire governing system around which the Union is organized, with some states joining quickly and others waiting a year and a half or two years. Those are two completely different situations.

    When the document listing those obligations is defunct, and 11 of the 13 states have abandoned it and replaced it, I think it's reasonable and realistic to say that the obligations of NC and RI under the AOC were null and void. Not because they decided to abandon the agreement, as you (incorrectly, in my opinion) characterize it here, but because the agreement was nullified in a sovereign act by the rest of the Union.

    It's just common sense: the AOC was gone. NC and RI could have insisted that it was still in effect and they were still obliged to honor it, but where would that get them? What would the rest of the states have done? Rhode Island just about got treated as a foreign country by the Congress because they hadn't ratified the Constitution. It doesn't sound like they considered RI as a member of the Union for anything other than a grace period to give them time to decide on ratification. Had RI decided against ratification, they would have been officially tossed out on their ear, and they would not have remained a part of the Union just because the previous governing document had declared the Union perpetual.
     
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  5. trice

    trice Major

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    Well, no. Same Union, different laws.

    The change from the Articles of Confederation to the Constitution ends up being completely legal under the Articles. It was voted on by the Congress of Confederation, which decided (unanimously, they said) to send it on to the 13 states for ratification. All 13 state legislatures did, eventually, act to have the Constitution ratified. Once all 13 have ratified, the process is completely legal.

    If you want to say that the Philadelphia Convention produced something exceeding the mandate they had, you'd be right -- but that becomes meaningless when the Congress of the Confederation decides to send the new Constitution on to the states for ratification. They could have easily rejected the Constitution -- they chose to accept it. Once they pass it on to the states, that argument has water under a bridge, and over a dam.

    In doing so, the Congress of the Confederation puts the adoption of the Constitution squarely into accord with the laws of the Articles of Confederation.

    At that point, the contentious point would be Article VII: "The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." I am sure decent lawyers could argue for years about whether or not that is appropriate under the Articles of Confederation -- but once the state legislatures do call those conventions and authorize them to make the decision, this too becomes water under a bridge and over a dam.

    Once all 13 states have ratified the Constitution (as we know they did), the adoption of the Constitution is beyond-a-doubt legal under the Articles of Confederation. There certainly were a few dubious actions along the way (on both sides), a lot of politicking and arm-twisting and propaganda, many contentious debates and a lot of disagreement, quite a few charges of corruption (particularly in Pennsylvania). We might see those as normal back-room politics from a very rough-and-tumble era. They seem to have allowed the people to get a good feel for the issues and make their minds up.
     
  6. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    If the Union is to you the same as the country of the United States, then why not just call it country.
    Are you not contradicting the demands of proof that the AOC allow NC and RI to go you demand of me by suggesting a lesser proof is sufficient.
    Evidence?
    The OP of this thread is basically what lawyers or historians would argue over. When did the AOC go out of business.
     
  7. trice

    trice Major

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    This did not happen.

    We are talking law here, not "common sense". If NC and RI wanted to protest, they had plenty of time and opportunity to bring their case before the Congress of the Confederation and ask for a judgement. They did not do so. NC and RI do not get to decide how the law will be decided, they have agreed to a procedure and failed to use it.

    NC in particular does not seem to have been utterly upset about this. Their legislature called a convention, the convention neither accepted nor rejected the Constitution. Instead they sent back a list of proposals for amendments to make it more acceptable to them. This appears to be merely negotiations for a better deal. The man they sent to represent them to the new Congress and President stressed that they were only concerned with liberties and wanted more protection. Once the Bill of Rights passed Congress, the convention met again and quickly ratified (the Anti-Federalists realized it was certain and many didn't bother to show up).

    RI (which was not doing this over liberties, but rather looking for advantages to themselves -- or at least the ruling class there) could have gone on rejecting the Constitution. If they had, they would have been squeezed to pay their debts in all likelihood. With a state economy in near-collapse, a populace on the edge of civil war and no allies in sight, that would have been bad for RI.

    RI could have stood up and said: "Hey, no offense, we just don't want this and would like to leave." Thomas Jefferso, for one, would probably have said "Good riddance!" and held the door for them. The real issue is that RI wanted to be in, wanted a better deal, and was trying to hold the country up to get one, IMHO.

    RI was most certainly pressured in 1790, probably would have been sanctioned, and possibly would have been coerced by force if they did not ratify. Congress was ready to put the question to them (In or out?). RI knew that "out" was a bad choice for them, they just didn't want to say yes.

    That is certainly raw treatment, very questionable under the Articles, much more rough-and-tumble politics than legal action. It is not much different than what the RI government was doing to their own people at the time. If the RI government had not ratified, my opinion is that you would have seen something similar to the 1841-42 Dorr Rebellion in 1790 or 1791 in RI. I am not sure if it would be successful and the goals would have been a bit different, but RI was on a knife's edge in 1790.
     
  8. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Speaking of lawyers arguing.

    John Marshall.

    Appears to follow my position that when the Congress stopped meeting, then that was the end of the government of the AOC.

    Owings v. Speed 18 U.S. 420 (1820)
    Key Phase, the AOC officially terminated when the Constitution became effective. It may have died between sometime between November 1788 and March 1789 according to the SCOTUS ruling Owings v Speed.
    Well maybe it could be April 30th when Washington was sworn into office.
    This pesky issue showed up in 1981 in ONEIDA INDIAN NATION OF N. Y. v. STATE OF N. Y
     
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  9. trice

    trice Major

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    The term "the Union" has been used to mean the "United States of America" for more than 200 years, particularly in the 1780s-1790s.

    I have no idea what you are saying here.
     
  10. Kenneth Almquist

    Kenneth Almquist Corporal

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    What laws or provisions of the AOC were violated by establishing the Constitution?
     
  11. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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  12. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    You observations are noted.
     
  13. Rebforever

    Rebforever Captain

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    Whoa, now. They were Colonies first and Sovereign states before any article.
     
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  14. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Term wise, it appears that it started off as United Colonies changed at the time of the DOI to United states(Lowercase s) and the by the time of the Articles United States(Uppercase S) and so carried into the Constitution. This is the basis for the statement that the Union is older than the States. Texas v White expresses it as
    This also implies that the concept of Union is also older than the name "United States'.
     
  15. Kenneth Almquist

    Kenneth Almquist Corporal

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    In reply to my query about what provisions of the AOC were violated by establishing the Constitution:

    I'm pretty sure that the ratification process did not alter or repeal the the Articles of Confederation, or release the states from their obligations to “inviolably observe” them. So I don't see how establishing the Constitution would violate this provision of the AOC.
     
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  16. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    There are 3 historical views.
    The Constitution was valid within the AOC --- Akhil Amar.
    The Constitution was not valid within the AOC --Bruce Ackerman and the Anti-federalists.
    It don't matter because the AOC had become defunct --by the Federalists.

    When Did the Articles of Confederation Cease to Be Law P40
    Madison in Federalist 47 takes the third option and it is discussed in Federalist 40 also and others.
    Assuming the Constitution is not valid under the AOC, then can the AOC stop it. Short answer is no.
     
  17. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    More
    Philadelphia Revisited: Amending the Constitution outside Article V pp 1047-1048
     
  18. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    "Storrs Lectures: Discovering the Constitution" by Bruce Ackerman
     
  19. Rebforever

    Rebforever Captain

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    They were called The American Colonies first which then were changed to United States in 1776.
     
    Last edited: Feb 28, 2017
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  20. trice

    trice Major

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    On Owings v. Speed, that seems to be in accord with everything I have said. There seems to be no doubt that the Constitution was in effect on that date, particularly in Virginia (which ratified in July 1788).

    On the Oneida Indian Nation case, I have no experience with that and it looks complex. What part of it, specifically, are you referring to?
     
    Last edited: Feb 28, 2017
  21. trice

    trice Major

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    Well, no. They were recognized by Britain as a single nation, not 13 individual sovereign nations. The Treaty of Paris is between two nations (it says so, listing the 13 colonies as part of the United States).

    Confederations and Federations have some odd concepts in them. Under the Articles, they had surrendered large parts of their sovereignty to the United States in order to achieve independence. Under the Constitution, they had deliberately delegated still more sovereignty to the United States as part of a bargain to make their Union "more perfect".

    In a Union of Federated States, the sovereignty of the individual States is defined by the Constitution. In the US, International Law sees only one sovereign nation. In other such federated unions, the member states can have more or less sovereignty, depending upon what their constitution says.

    There was certainly debate and argument about the sovereignty of the individual states back in the 1780s. Note the quote that appears in my footer. This Pinckney was actually one of the committee of five men writing the Constitution in Philadelphia in 1787 -- also a well-educated lawyer, a soldier in the Revolution, an American diplomat. Speaking at the South Carolina ratifying convention, he said: "Let us, then, consider all attempts to weaken this Union, by maintaining that each state is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious distresses."
     

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