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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. Andersonh1

    Andersonh1 2nd Lieutenant

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    This makes sense to me in the way you frame it. It's always seemed to me that dissolving one government and forming another one meant that there had been more than one Union. Politically and legally, there have been multiple Unions. Socially and culturally, there has always been a connection between the states of North America and an intention to maintain an association, so there can be said to have been a continuous or "perpetual" union.
     
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  3. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    Perhaps one Union and multiple unions rather like a person is one entity in their life time, but at each point in time different. However sometime in there, the Union of States became the People of the United States which confuses things IMHO.
     
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  4. civilken

    civilken Sergeant Major

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    it may be a little over my head but I am enjoying it.igoodguy. Please do me a favor and never stop writing for this form you have a sharp intellect and I do enjoy reading your comments. Thanks again.
     
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  5. jdmnw

    jdmnw Cadet

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    I kind of liked the Farris article (http://www2.gcc.edu/orgs/GCLawJournal/articles/spring 2011/Constitution Illegally Adopted.pdf) except that he makes what from now on I'm going to call the Turley Mistake (the bottom of page 5):

    "Article II asserted that the states retained all power not specifically delegated to the federal branch. This did not change, as was made evident by numerous declarations to that effect by the various state ratification documents. Moreover, the Tenth Amendment was later added to the Constitution to clarify this further."​

    First, since every state ratified unconditionally, any such declarations made by the states didn't matter. That is, such declarations weren't binding.

    Second, Article II of the AoC uses the word expressly, not specifically (I know, a distinction without a difference):

    AoC - Article II.​
    Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly [emphasis added] delegated to the United States, in Congress assembled.​

    But that's not what the Constitution's Tenth Amendment says:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.​

    The word expressly was purposely and specifically left out.

    http://americanvision.org/10598/james-madisons-big-hypocrisy-limited-government/
    http://press-pubs.uchicago.edu/founders/documents/amendXs6.html

    Also, I'm not sure the Necessary and Proper Clause (Article I, Section 8, Clause 18) could have worked had expressly been added to the Tenth Amendment.

    (Go to the Necessary and Proper Clause entry in Wikipedia and see the section History leading up to ratification)
     
    Last edited: Mar 23, 2017 at 11:48 PM
  6. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

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    I found a number of errors one of which is to assert that the Constitutional ratification of 13 States satisfied the Articles of Confederation when not only was this a new government, and the AOC had no authority over the process but the AOC was dead by the time RI ratified.
     
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  7. CW Buff

    CW Buff Sergeant

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    How do @jdmnw, don't think we've crossed paths B4.

    I agree with your own points on the Constitution, but I find that Farris is off his rocker (and I usually hate to be so blunt). IMHO, his article is wrong on so very many points, it’s like a piece of Swiss cheese, in reverse (10% substance, 90% holes). Calling the Constitution a revision of the AoCs (with a name change) is like calling the theory of evolution a revision of creation theory. They are completely different, founded on radically different principles. The Articles are a treaty, the Constitution is a fundamental law. How do you revise a treaty and end up with a law? But the nail in the coffin may be that not one Framer, not one Federalist, ever thought to describe the Constitution as a revision of the Articles. The fact that they were exceeding their mandate was brought up in the Constitutional Convention several times, and the reply, time and again, was not that what they were doing was actually, somehow compliant with their mandate, but that what they were doing did in fact exceed their mandate, but that was OK, because their first responsibility was to devise a plan that would address the country’s needs, and then it was up to the people to sanction or reject it.
     
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  8. jdmnw

    jdmnw Cadet

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    Nice to meet you CW Buff. I've been lurking here for several months, doing a lot of reading, and in many cases learning a lot, but I've only recently started posting.

    I'm not saying I'm convinced that he's right, merely that I find it to be an interesting argument.

    Near the end Dr. Farris says

    Therefore, the Articles of Confederation were fully satisfied. Before the Constitution was agreed to, Congress and all thirteen state legislatures approved a new process for changing the Articles of Confederation. By the unanimous action of thirteen state legislatures, ratification conventions were convened – an explicit approval of the new process that included the transfer of decision-making from legislatures to conventions and changed the required number of approvals from thirteen to nine.​

    I'm not a lawyer, but I can see how such an argument can be made. Obviously you and jgoodguy disagree, as is your right.

    What I think the Dr. Farris article is trying to do is answer the question posed by Professor Amar on page 30 of America's Constitution, page 30:

    If the proposed Constitution were an amendment of the Articles (an amendment of the form, "Delete everything thus far and replace it as follows..."), then how could only nine states suffice?​

    My take is that Dr. Farris is saying, "Well, the AoC Congress passed the proposed Constitution along to all thirteen AoC state legislatures which in turn approved passing the proposed Constitution on to the ratifying committees of all thirteen states, so the AoC Unanimity rule was satisfied. Also, neither the AoC Congress nor the thirteen AoC states complained that only nine states were needed to ratify. Finally, if the AoC Congress or any of the AoC states had disagreed, had felt that this was inappropriate, they could have stopped the process it in its tracks. They obviously didn't."

    At least that's how I read him.

    FWIW, I often agree with jgoodguy on many things, but I'm not yet convinced in this case, so I'll be looking into this more when I get the time. It's always possible I may change my mind eventually.
     

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