1. Welcome to the CivilWarTalk, a forum for questions and discussions about the American Civil War! Become a member today for full access to all of our resources, it's fast, simple, and absolutely free!
Dismiss Notice
Join and Become a Patron at CivilWarTalk!
Support this site with a monthly or yearly subscription! Active Patrons get to browse the site Ad free!
START BY JOINING NOW!

The winding down of the AOC

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

  1. Andersonh1

    Andersonh1 1st Lieutenant

    Joined:
    Jan 12, 2016
    Messages:
    4,620
    Location:
    South Carolina
    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.
     
    CW Buff likes this.

  2. (Membership has it privileges! To remove this ad: Register NOW!)
  3. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    26,787
    Location:
    Pelham, AL
    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.
     
    CW Buff and Andersonh1 like this.
  4. civilken

    civilken 2nd Lieutenant

    Joined:
    Jul 25, 2013
    Messages:
    3,176
    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.
     
    jgoodguy likes this.
  5. jdmnw

    jdmnw Cadet

    Joined:
    Sep 9, 2016
    Messages:
    23
    Location:
    Orlando, FL
    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
  6. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    26,787
    Location:
    Pelham, AL
    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.
     
    jdmnw likes this.
  7. CW Buff

    CW Buff Sergeant

    Joined:
    Dec 22, 2014
    Messages:
    911
    Location:
    Connecticut
    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.
     
    ivanj05, O' Be Joyful and jgoodguy like this.
  8. jdmnw

    jdmnw Cadet

    Joined:
    Sep 9, 2016
    Messages:
    23
    Location:
    Orlando, FL
    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.
     
    NedBaldwin likes this.
  9. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    26,787
    Location:
    Pelham, AL
    It all depends on what you mean by "the AoC Unanimity rule was satisfied." It was, but not to confirm to the AOC. More by accident than design.

    Re "they could have stopped the process it in its tracks. They obviously didn't." How exactly could it be stopped?
     
  10. CW Buff

    CW Buff Sergeant

    Joined:
    Dec 22, 2014
    Messages:
    911
    Location:
    Connecticut
    I [think] I understand what you're saying, and what Farris is saying. But consider how unanimous adoption was obtained. The rule for ratification was completely changed (and not in a unanimous manner), making it much easier to enact the new plan. The new plan was passed and put into effect with only 11 states (and you might even be able to say that they essentially had 12 states on board; the only reason NC did not promptly ratify was supposedly because she was holding out for a bill or rights, which they had every intention of passing). What RI was therefore faced with was not the ability to put the kabosh on the whole process by refusing to ratify (like she had with the 5% impost, a proposed amendment to the AoCs), but the threat of being locked out of the new union, and therefore any union at all, which is exactly the ultimatum that the new US eventually issued to her. You can't change the process to one that coerces ratification and then say 'doesn't matter, we obtained unanimous consent anyway.' If you were playing the role of RI, would you agree that was essentially compliant with the AoCs.

    Edited to fix duplication.
     
    Last edited: Mar 28, 2017
  11. CW Buff

    CW Buff Sergeant

    Joined:
    Dec 22, 2014
    Messages:
    911
    Location:
    Connecticut
    Don't get me wrong, I'm not complaining that the AoCs were dissed. I subscribe to the rationale many of the federalists promoted. The AoCs had been violated in so many ways, and by every single state, that they had become a dead letter anyway. RI was one of the most non-compliant states; many referred to her derisively as "Rogue Island". How could RI complain about a violation when she had herself violated the AoCs?
     
    jdmnw, O' Be Joyful and jgoodguy like this.
  12. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    26,787
    Location:
    Pelham, AL
    IMHO the proof of dead letter is that the AOC did not/could not effectively resist the federalists.
     
  13. jdmnw

    jdmnw Cadet

    Joined:
    Sep 9, 2016
    Messages:
    23
    Location:
    Orlando, FL
    To me "unanimity" means just that. In my view, they all (the members of the AoC Congress) had to agree to pass the proposed Constitution on to the state ratifying conventions. And they did. I really don't know what would have happened if they hadn't all agreed, but I believe stopping the process was a possibility. Then again, maybe not. I haven't had a chance to really think too much about this since my post, and I'm certainly willing to admit I may be wrong.

    Off the cuff thought: it's possible a disagreement among the members of the AoC Congress could have led to the breakup of the AoC Government (breached contract?), since it wasn't a Union, merely a Compact/Confederation. I really don't know what would have happened then.
     
    Last edited: Apr 9, 2017
  14. CW Buff

    CW Buff Sergeant

    Joined:
    Dec 22, 2014
    Messages:
    911
    Location:
    Connecticut
    If you're talking about members = delegates in Congress, the unanimous agreement of Congress could not in itself enact (an) amendment(s). Both (agreement in Congress, by I believe a simple majority, and unanimous ratification by the state legislatures) were required before any amendment could go into effect. When the AoCs were first enacted, it did not go into effect until all 13 states ratified it, four years (1781) after Congress submitted it (1777) to the states for ratification. When the 5% impost passed Congress, it failed when RI remained the only state not to ratify it. And that's what very likely would have happened to the Constitution if they had tried to comply with Article XIII.

    I believe Congress eventually chose not to render an opinion on the Constitution, because the proposed plan did not consist of amendments to the AoCs, and they had no constitutional (AoCs) authority to deal with an entirely new system. So they simply forwarded it to the states and left it up to them. Basically, Congress did not put up a roadblock, but they did not pretend it complied with Article XIII. In effect, it appears they would disagree with Farris revised + name change theory.
     
    jgoodguy likes this.
  15. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    26,787
    Location:
    Pelham, AL
    Except the AoC Congress was not meeting.
     
  16. NedBaldwin

    NedBaldwin Captain

    Joined:
    Feb 19, 2011
    Messages:
    7,414
    Location:
    California
    The AOC required that all legislatures confirm any proposed changes.
    To me that is a different action than implementing proposed changes.
    Some changes might be self-implementing, but the proposed Constitution was not.

    I think what Farris is saying is that when Congress sent the proposed Constitution to the States, all the State legislatures accepted it and called for conventions/votes within their state to ratify it,and that this action by the legislatures "confirmed" the proposed alteration. Thus when in February 1788 the Rhode Island legislature passed an act putting the Constitution to a vote of the people, it has then confirmed the proposed changes to the AOC.
     
    jdmnw likes this.
  17. jdmnw

    jdmnw Cadet

    Joined:
    Sep 9, 2016
    Messages:
    23
    Location:
    Orlando, FL
    I stand corrected.

    Still, I can see this argument:

     
  18. NedBaldwin

    NedBaldwin Captain

    Joined:
    Feb 19, 2011
    Messages:
    7,414
    Location:
    California
    ?????

    Congress met, received the proposed Constitution from the Philadelphia convention and passed a resolution sending it to the States.
     
  19. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    26,787
    Location:
    Pelham, AL
    It stopped meeting long before RI ratified the Constitution. The fact that 13 States ratified the Constitution, does not meet the AOC requirements for amendments, because the AOC was not operational. It is coincidental.
     
  20. jgoodguy

    jgoodguy Brigadier General Moderator Forum Host

    Joined:
    Aug 17, 2011
    Messages:
    26,787
    Location:
    Pelham, AL
    But the 13th State RI ratified long after the AOC Congress stopped meeting.
     
  21. NedBaldwin

    NedBaldwin Captain

    Joined:
    Feb 19, 2011
    Messages:
    7,414
    Location:
    California
    So? Why does that timeframe matter?

    I guess Im confused about what is being talked about. Regarding Congress, the AOC requirement for an amendment is that Congress approves it, which they did.
     

(Membership has it privileges! To remove this ad: Register NOW!)

Share This Page


(Membership has it privileges! To remove this ad: Register NOW!)