Was change of government from the AOC to the Constitution a “Secession”

[Joshism]

France has gone through five Republics and several empires. It's never stopped being France.

The Czech Republic and Slovakia did not secede from Czechoslovakia.

The USA under the AOC and Constitution were the same country, merely with different laws. Much as installing a new version of Windows on your computer is not making a new computer, just upgrading the operating system.

 

[unionblue]

@Patrick Cleburne ,

You have been given direct answers on this thread topic. The change of government from the AOC to the constitution was NOT a secession, nor was it ever termed as such when the change took place..

The problem with this answer is not that it is wrong or inaccurate.

It's simply the answer you are not willing to accept.

Unionblue

 

[trice]

Trice, your continued refusal to provide a direct answer to each of my questions in post #6 -- questions for which you used the off-topic excuse to avoid in the last topic -- suggests that you recognize the relevant points and are just hiding from them. If you have a serious case to make and more than red herrings to offer, let's have an answer to those questions.

As I have told you time and time again, there was no "secession" in 1788. When you can show the slightest evidence that there might have been -- such as a document from 1788 actually declaring "secession" -- I will be glad to go off into a discussion of all these red herrings with you.. First, show some evidence for what you claim before you demand I prove a negative to you.

 

[trice]

The Czech Republic and Slovakia did not secede from Czechoslovakia.

Well, this one (called "The Dissolution of Czechoslovakia" on January 1, 1993, sometimes called "The Velvet Divorce") is actually used as an example of a particular type of secession today -- just not the type "the South" tried in 1860-61. It was peaceful, at least, and generally the result of a mutual agreement. Only a minority of the Czechs and Slovaks seem to have wanted to dissolve Czechoslovakia and the Slovak parliament issued a Declaration of Independence a week before the Czech leaders agreed to a dissolution. Just about every other example of modern-day "secession" involves some degree of violence.

From that definition in the Stanford Encyclopedia of Philosophy in my post above: "A third case, exemplified by the dissolution of Czechoslovakia, occurs when there is agreement between the populations or at least the leaders of two regions (which together comprise the whole territory of the state), to split the state into two new states. "

That, I suppose, is what the 1860-61 "secession" might have been if "the South" had worked through the existing legal and political system to reach a negotiated agreement with "the North" (as in "the rest of the country") without first resorting to the use of armed force and the seizure of property.

In 1788, however, all we have is what would now be seen as a fairly normal process for a nation to change to a new constitution. In 1787-90 it was a highly unusual process because there was no precedent for what the United States was becoming, a Federal Union.

That process is complicated by the recalcitrance of a state or two, in particular Rhode Island, and the many weaknesses of the existing Articles of Confederation and Perpetual Union as a working agreement. The Constitution itself makes plain that it is the same Union as the Union of the Articles of Confederation and Perpetual Union. No state ever left it.

Also, in case anyone is wondering about Rhode Island being out of the Union:

• in about September of 1789 the Governor of Rhode Island wrote to the Congress, saying that Rhode Island should not be considered a foreign nation.
• In May of 1790, when patience was starting to wear thin, the US Senate passed a bill that would have treated Rhode Island as a foreign nation.
• That bill never passed the House and was never signed into law because Rhode Island got the message and ratified the Constitution within a few days.

 

[Patrick Cleburne]

France has gone through five Republics and several empires. It's never stopped being France.

The Czech Republic and Slovakia did not secede from Czechoslovakia.

Is this kind of modern history fair game for discussion? I think it would be very helpful to discuss, but my understanding was that it was (unfortunately, from my perspective) off limits on this forum.

As I have told you time and time again, there was no "secession" in 1788. When you can show the slightest evidence that there might have been -- such as a document from 1788 actually declaring "secession" -- I will be glad to go off into a discussion of all these red herrings with you.. First, show some evidence for what you claim before you demand I prove a negative to you.

In the post with the questions I keep pressing you to ask, the questions for which your previous excuse was that they were off-topic on the original thread, I don't even mention "secession" (or "secede" or any other variation of the word.) As I've already said, questions about secession are beside the point. Nor do I ask you to prove a negative (or to prove anything at all.) The ultimate question is whether anything happened between 1787 and 1781 that would be incompatible with an "indissoluble" union, according to however the Washington and Hamilton quotes are best understood. So, again, I can only take your continued refusal to answer my repeated questions as evidence that you recognize the indefensibility of your position, especially your don't-look-too-close interpretation of the Washington and Hamilton quotes.

 

[Patrick Cleburne]

Rhode Island got the message and ratified the Constitution within a few days.

What message was that?

 

[GwilymT]

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[trice]

Is this kind of modern history fair game for discussion? I think it would be very helpful to discuss, but my understanding was that it was (unfortunately, from my perspective) off limits on this forum.

It is supposed to be kept to a minimum. I only mentioned it in reply to a usage in the previous post that was slightly off how it is regarded. My mistake, I suppose, and the moderators may decide to edit it out if I am wrong in doing so.

In the post with the questions I keep pressing you to ask, the questions for which your previous excuse was that they were off-topic on the original thread, I don't even mention "secession" (or "secede" or any other variation of the word.) As I've already said, questions about secession are beside the point. Nor do I ask you to prove a negative (or to prove anything at all.)

OK. I take it from your words here that you understand and agree that absolutely no "secession" of any kind occurred in the United States of America in the years 1787 to 1790. Please say that is correct if it is.

I am surprised because I thought I remembered you saying "There was more than just an actual attempt in 1788. 11 states actually seceded from the union and established a new one without the other 2 ", but I see that is you saying it in a different thread. If all you mean is you did not say anything about secession in 1788 in this thread, please say so. I'd like to be sure I understand what you are saying here that is different than what you said in the "George Bassett's hypothetical" thread.

The ultimate question is whether anything happened between 1787 and 1781 that would be incompatible with an "indissoluble" union, according to however the Washington and Hamilton quotes are best understood.

Let's be clear. There was no "secession" in 1788. I am totally unsure what you might mean by "incompatible with an indissoluble union", particularly considering what you seem to be saying is my confusion over the "secession" issue above in the "George Bassett's hypothetical" thread.

So please give us some examples of what you mean by "incompatible with an indissoluble union". I would like to be sure I understand what you mean before answering it

So, again, I can only take your continued refusal to answer my repeated questions as evidence that you recognize the indefensibility of your position, especially your on't-look-too-close interpretation of the Washington and Hamilton quotes.

I don't recall commenting on these Washington and Hamilton quotes you keep mentioning. What was it I said?

 

[trice]

What message was that?

At that point, Rhode Island had finally called a Convention to ratify the Constitution (attempt #12, the first 11 attempts did not result in a Convention) and the Convention had met (March or April?) and adjourned without reaching a decision. The Senate bill was called "An Act to Restrict Trade with Rhode Island". That was on May 18, 1790; about the same time, possibly the same bill, the Senate authorized George Washington to use whatever force might be necessary to collect the money owed to the US by Rhode Island (RI was in a financial crisis and also on the verge of civil war and a "secession" of their own; they were deadbeats not paying what they owed).

So that is May 18th. Washington and the Congress were in New York City. It would take a day or two to get the news to Providence, weather permitting. That gets us to May 20. Rhode Island suddenly decided they would ratify the Constitution after all and did so on May 29. On June 1st, Washington officially notified the Congress that he had received official notice that Rhode Island had, indeed, ratified the Constitution.

 

[Patrick Cleburne]

There was no "secession" in 1788. I am totally unsure what you might mean by "incompatible with an indissoluble union"

I understand you to be saying that there was no secession in 1788 specifically because in order for there to have been a secession a reduced union must have been left behind, and because NC and RI were on their own and didn't in any way continue under the Articles of Confederation without the other states, that the withdrawal of the 11 states from the Articles of Confederation that joined them to the other 2 needs to be called something other than secession. I'm not interested in an argument over semantics,EDIT - Personal attack but if Washington and Hamilton didn't think that leaving up to 4 states behind and forming a new basis of union that didn't necessarily include those up-to-4-states, and doing so on the authority of conventions of the people of the states alone, simply disregarding the terms for amendment in the existing compact (the Article of Confederation), then there's no basis for claiming their idea of an "indissoluble" union wouldn't also have been consistent with secession "in the classic sense," as your link puts it. In other words, if any number of states short of the whole can leave behind the basis of union with the other states (specifically abandoning the Articles of Confederation in 1788), whether the left behind states continue in union with each other or not, or even if only one state is left behind, and if the states establishing a new basis of union can do so on the authority of conventions of the peoples of those states alone, not meeting the requirements for amendment set forth in the existing, previously agreed terms of union, and if that's consistent with Washington's and Hamilton's desire for "indissoluble" union, however they understood it, then there can be no basis for saying Washington or Hamilton's understanding of an "indissoluble" union was incompatible with peaceful secession by any other number of states merely on the authority of conventions of the peoples of those respective states without going through any legal process under the existing, previously agreed terms of union (i.e. the Constitution.)

I take it from your words here that you understand and agree that absolutely no "secession" of any kind occurred in the United States of America in the years 1787 to 1790. Please say that is correct if it is.

No, my point was merely that you can answer the questions you keep avoiding without dealing with any questions about the definition of secession at all.

Let's be clear. There was no "secession" in 1788.

If you wanted to be clear about what happened in 1788 and what to call it, you would have answered my questions a long time ago. But it's not too late.

force might be necessary to collect the money owed to the US

Was any such debt ever collected specifically from the people of Rhode Island? Or was that just a false pretense for a veiled, empty threat of coercion against Rhode Island for not cooperating in the new system of government that Rhode Islanders had up until that point chosen not to consent to (not genuinely being about any debts at all)? Are you suggesting the people of Rhode Island were coerced into the new terms of union in the first place and therefore the authority of the federal government over the people of Rhode Island wasn't truly founded on the consent of the governed?

 

[trice]

I understand you to be saying that there was no secession in 1788 specifically because in order for there to have been a secession a reduced union must have been left behind, and because NC and RI were on their own and didn't in any way continue under the Articles of Confederation without the other states, that the withdrawal of the 11 states from the Articles of Confederation that joined them to the other 2 needs to be called something other than secession.

You are wrong, then. I never said that. No states at all ever withdrew from the Union.

I'm not interested in an argument over semantics, especially not with someone so evasive of any definition of terms, but if Washington and Hamilton didn't think that leaving up to 4 states behind and forming a new basis of union that didn't necessarily include those up-to-4-states, and doing so on the authority of conventions of the people of the states alone, simply disregarding the terms for amendment in the existing compact (the Article of Confederation), then there's no basis for claiming their idea of an "indissoluble" union wouldn't also have been consistent with secession "in the classic sense," as your link puts it. In other words, if any number of states short of the whole can leave behind the basis of union with the other states (specifically abandoning the Articles of Confederation in 1788), whether the left behind states continue in union with each other or not, or even if only one state is left behind, and if the states establishing a new basis of union can do so on the authority of conventions of the peoples of those states alone, not meeting the requirements for amendment set forth in the existing, previously agreed terms of union, and if that's consistent with Washington's and Hamilton's desire for "indissoluble" union, however they understood it, then there can be no basis for saying Washington or Hamilton's understanding of an "indissoluble" union was incompatible with peaceful secession by any other number of states merely on the authority of conventions of the peoples of those respective states without going through any legal process under the existing, previously agreed terms of union (i.e. the Constitution.)

Well, that is a mighty long sentence and difficult to parse. It seems to come down to you implying that Washington and Hamilton would never have said something (I don't know what, but apparently something) unless they meant what you insist they meant.

Please be clear. What, exactly, is it you mean here? What did Washington say? What did Hamilton say?

No, my point was merely that you can answer the questions you keep avoiding without dealing with any questions about the definition of secession at all.
If you wanted to be clear about what happened in 1788 and what to call it, you would have answered my questions a long time ago. But it's not too late.

You don't want to talk about secession, it seems. Yet this started in a thread called Antebellum quotes rejecting a right to secession and this part was then moved by the moderator to a thread called Was change of government from the AOC to the Constitution a “Secession”. We see why I am confused by your intent and asking you for clarification then.

Please tell us what it is you are trying to talk about with these questions you demand I answer? Where are you trying to go with this?

Was any such debt ever collected specifically from the people of Rhode Island? Or was that just a false pretense for a veiled, empty threat of coercion against Rhode Island for not cooperating in the new system of government that Rhode Islanders had up until that point chosen not to consent to (not genuinely being about any debts at all)? Are you suggesting the people of Rhode Island were coerced into the new terms of union in the first place and therefore the authority of the federal government over the people of Rhode Island wasn't truly founded on the consent of the governed?

I actually have no idea if any specific debt was collected and have never even tried to find out if it was. As I mentioned from the start, the bill passed the Senate, but never passed the House and never became law.

I do believe, as does almost anyone else who ever looked at events, that the patience of the United States government (i.e., all the other States in the Union) was running thin. They wanted a definite answer on whether or not Rhode Island was going to ratify the Constitution. In January, Rhode Island had asked for more time -- then Rhode Island finally got around to actually calling the required convention to vote on ratifying the Constitution after more than two years delay. That Convention met in March and adjourned without a decision.

So now it is May, 1790. Thirty-two months have gone by since the Congress sent the Constitution on to the States. Rhode Island is living up to the nickname it was given in the 1780s: "Rogue Island". They don't want to be considered out of the Union and they don't want to act with the other States in the Union.

Which gets us back to the Thomas Jefferson quote you seemed to have a problem with in the original thread:

Thomas Jefferson, future President, in response to DéMeunier’s first queries, January 24, 1786:​

​

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. Congress would probably exercise long patience before they would recur to force; but if the case ultimately required it, they would use that recurrence. Should this case ever arise, they will probably coerce by a naval force, as being more easy, less dangerous to liberty, and less likely to produce much bloodshed.​

​

Thomas Jefferson had assumed his new post as Secretary of State on March 21, 1790. He was in New York with Washington and the Congress as the events unfolded and Rhode Island decided to ratify the Constitution.

I think that on May 18th when they passed the bill, the Senate of the United States was indicating to the State of Rhode Island that they were tired of waiting to see what Rhode Island would do. Time to fish or cut bait.

 

[ForeverFree]

Different terms may have been used, but secession was directly discussed during the Hartford Convention of 1814-15 and during the debate over the Alien and Sedition Acts in 1798-1799, as well as when 11 states seceded from the union to establish a new union (without North Carolina and Rhode Island) in 1788, as well as in the debates over ratification of the Constitution.

What is your definition of secession?

This is from the online Free Dictionary:

Secession: The act of withdrawing from membership in a group.​

​

Secession occurs when persons in a country or state declare their independence from the ruling government. When adissatisfied group secedes, it creates its own form of government in place of the former ruling government. Secessions areserious maneuvers that lead to, or arise from, military conflict.​

​

A secession can affect international relationships as well as the civil peace of the nation from which a group secedes. Most countries consider secession by a town, city, province, or other body to be a criminal offense that warrants retaliation using force. Because the primary mission of most governments is to maximize the comfort and wealth of its citizens, nations jealously guard the land and wealth that they have amassed. In rare cases a government may recognize the independenceof a seceding state. This recognition may occur when other countries support the independence of the seceding state.However, for most countries, the involuntary loss of land and wealth is unthinkable.​

​

Most countries have laws that punish persons who secede or attempt to secede. The United States has no specific law onsecession, but the federal government and state governments maintain laws that punish Sedition and other forms ofinsurrection against the government. On the federal level, for example, chapter 115 of title 18 of the U.S. Code Annotatedidentifies Treason, rebellion, or insurrection, seditious conspiracy, and advocation of the overthrow of the government ascriminal offenses punishable by several years of imprisonment and thousands of dollars in fines. These are the types ofcrimes that can be charged against persons who attempt to secede from the United States.​

​

The U.S. Civil War was the result of the single most ambitious secession in the history of the United States. In February1861 South Carolina seceded from the Union, and Virginia, North Carolina, Georgia, Florida, Alabama, Mississippi, Texas,Arkansas, and Tennessee followed suit shortly thereafter. These states seceded because they objected to attempts by thefederal government to abolish the enslavement of black people. The mass secession led to four years of civil war and thedeath of hundreds of thousands of people. The seceding states established their own government called the ConfederateStates of America and fought the U.S. military forces with their own army. When the Confederate forces were defeated in April 1865, the seceding states rejoined the United States.​

To me, the change from AOC to the Constitution was not a secession as defined above. The Preamble to the Constitution states "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States..."

There is the explicit statement that the people are in a union, and the Constitution is being used to make a "more perfect" union. That is, they are not trying to create a new union, they are perfecting the one they already have.

- Alan

 

[Potomac Pride]

Some of the early legal scholars did consider the change of government from the AOC to the Constitution as a form of secession. For example, St. George Tucker was a law professor and noted legal scholar in the early republic era. He argued that abandoning the Articles was the same as seceding from the Articles and this served as a legal precedent for future secession from the Constitution. In 1803, St. George Tucker wrote: "And since the seceding states, by establishing a new constitution and form of federal government among themselves, without the consent of the rest, have shown that they consider the right to do so whenever the occasion may, in their opinion require it, we may infer that the right has not been diminished by any new compact which they may since have entered into, since none could be more solemn or explicit than the first, nor more binding upon the contracting partie. "

 

[trice]

Some of the early legal scholars did consider the change of government from the AOC to the Constitution as a form of secession. For example, St. George Tucker was a law professor and noted legal scholar in the early republic era. He argued that abandoning the Articles was the same as seceding from the Articles and this served as a legal precedent for future secession from the Constitution. In 1803, St. George Tucker wrote: "And since the seceding states, by establishing a new constitution and form of federal government among themselves, without the consent of the rest, have shown that they consider the right to do so whenever the occasion may, in their opinion require it, we may infer that the right has not been diminished by any new compact which they may since have entered into, since none could be more solemn or explicit than the first, nor more binding upon the contracting partie. "

Thanks for posting that; I think I have heard of St. George Tucker before, but I really had to look him up to find out what I might have known.

He certainly was an interesting man. I never knew who had been trying to push for slave emancipation in Virginia back in the early days of the US -- apparently St. George Tucker was a big mover and shaker in that effort. (The emancipation effort in Virginia peaked about 1831 (the year of the Nat Turner slave rebellion -- four years after St. George Tucker expired.)

Having poked around, I see that he regarded secession as an extreme step and was a very strong believer in Natural Rights. Some writers compare him to Chief Justice Marshall, who Tucker admired. I doubt that his support for a "secession" would be based on written law. It was likely much the same as anyone coming from that angle (like Vattel, very popular in St. George Tucker's time), that he meant "secede" or "secession" simply as "leaving" or "withdrawing", that he justified it based on Natural Law and not the laws of man.

The only thing about the adoption of the Constitution that is a bit squiggly is the ratification section:

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.​

That part has, of course, trouble trying to reconcile with Article XIII of the Articles of Confederation and Perpetual Union:

ARTICLE XIII. Every state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterward confirmed by the legislatures of every state.​

One of the original thirteen States could have objected to that nine state qualification, refused to ratify, and there would have been a major legal problem to resolve. Once all thirteen States have ratified the Constitution, this is a moot point. The conditions in Article XIII of the Articles of Confederation and Perpetual Union have been met and everything is legal and complete. Article VII of the Constitution has been approved along with the rest of the Constitution. It is no longer possible to object legally to the nine state portion of the Constitution as a violation of the Articles of Confederation and Perpetual Union.

What that comes down to is this:

• Congress approved the Constitution and sent it on to the States for ratification on September 28, 1787
• the ninth State (New Hampshire) ratified on June 21, 1788
• the thirteenth State (Rhode Island) ratified on May 29, 1791

At any point between September 28, 1787 and May 29, 1791 -- three years and nine months -- any one of the original thirteen States could have protested and brought a case through the judicial system of the existing Union. None did. Rhode Island did not -- and Rhode Island had held up a change to the Articles of Confederation and Perpetual Union in 1781 by refusing to ratify (12 States against 1 State).

Granted, the judicial system of the Articles of Confederation and Perpetual Union was so weak, convoluted and arcane as to be virtually useless on such a serious issue. I doubt any single State, even one like Virginia or New York, could have actually forced a decision in their favor through it on this issue. The point is that no one even bothered to try.

BTW: I lumped Virginia and New York in with Rhode Island there because those three were regarded as the biggest rocks on the path to ratification and a large part of the reason the nine state condition was written in at the Philadelphia Convention. I don't think it was an accident that neither New York nor Virginia ratified among the first nine.

 

[Dead Parrott]

Thanks for posting that; I think I have heard of St. George Tucker before, but I really had to look him up to find out what I might have known.

He certainly was an interesting man. I never knew who had been trying to push for slave emancipation in Virginia back in the early days of the US -- apparently St. George Tucker was a big mover and shaker in that effort. (The emancipation effort in Virginia peaked about 1831 (the year of the Nat Turner slave rebellion -- four years after St. George Tucker.)

Having poked around, I see that he regarded secession as an extreme step and was a very strong believer in Natural Rights. Some writers compare him to Chief Justice Marshall, who Tucker admired. I doubt that his support for a "secession" would be based on written law. It was likely much the same as anyone coming from that angle (like Vattel, very popular in St. George Tucker's time), that he meant "secede" or "secession" simply as "leaving" or "withdrawing", that he justified it based on Natural Law and not the laws of man.

The only thing about the adoption of the Constitution that is a bit squiggly is the ratification section:

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.​

That part has, of course, trouble trying to reconcile with Article XIII of the Articles of Confederation and Perpetual Union:

ARTICLE XIII. Every state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterward confirmed by the legislatures of every state.​

One of the original thirteen States could have objected to that nine state qualification, refused to ratify, and there would have been a major legal problem to resolve. Once all thirteen States have ratified the Constitution, this is a moot point. The conditions in Article XIII of the Articles of Confederation and Perpetual Union have been met and everything is legal and complete. Article VII of the Constitution has been approved along with the rest of the Constitution. It is no longer possible to object legally to the nine state portion of the Constitution as a violation of the Articles of Confederation and Perpetual Union.

What that comes down to is this:

• Congress approved the Constitution and sent it on to the States for ratification on September 28, 1787
• the ninth State (New Hampshire) ratified on June 21, 1788
• the thirteenth State (Rhode Island) ratified on May 29, 1791

At any point between September 28, 1787 and May 29, 1791 -- three years and nine months -- any one of the original thirteen States could have protested and brought a case through the judicial system of the existing Union. None did. Rhode Island did not -- and Rhode Island had held up a change to the Articles of Confederation and Perpetual Union in 1781 by refusing to ratify (12 States against 1 State).

Granted, the judicial system of the Articles of Confederation and Perpetual Union was so weak, convoluted and arcane as to be virtually useless on such a serious issue. I doubt any single State, even one like Virginia or New York, could have actually forced a decision in their favor through it on this issue. The point is that no one even bothered to try.

BTW: I lumped Virginia and New York in with Rhode Island there because those three were regarded as the biggest rocks on the path to ratification and a large part of the reason the nine state condition was written in at the Philadelphia Convention. I don't think it was an accident that neither New York nor Virginia ratified among the first nine.

Interesting discussion.

 

[Joshism]

If one considers the Articles to Constitution transition to be secession this means that states seceded from the United States of America to form...the United States of America. And at one point the older USA consisted solely of the state of Rhode Island.

In 1803, St. George Tucker wrote: "And since the seceding states, by establishing a new constitution and form of federal government among themselves, without the consent of the rest,

This is a great find. I also think Tucker is making a flawed argument.

The Constitution was written by formal representatives of all the states. Thus they did have consent from all the states. It simply required an additional ratification step to make it become law.

Is there anything in the Articles or Constitution that requires universal consent of the governed? I'm pretty sure there isn't. (There's an entire alternate history universe whose point of departure involves the inclusion of that IRL omitted word.)

 

[Potomac Pride]

Thanks for posting that; I think I have heard of St. George Tucker before, but I really had to look him up to find out what I might have known.

He certainly was an interesting man. I never knew who had been trying to push for slave emancipation in Virginia back in the early days of the US -- apparently St. George Tucker was a big mover and shaker in that effort. (The emancipation effort in Virginia peaked about 1831 (the year of the Nat Turner slave rebellion -- four years after St. George Tucker expired.)

Having poked around, I see that he regarded secession as an extreme step and was a very strong believer in Natural Rights. Some writers compare him to Chief Justice Marshall, who Tucker admired. I doubt that his support for a "secession" would be based on written law. It was likely much the same as anyone coming from that angle (like Vattel, very popular in St. George Tucker's time), that he meant "secede" or "secession" simply as "leaving" or "withdrawing", that he justified it based on Natural Law and not the laws of man.

The only thing about the adoption of the Constitution that is a bit squiggly is the ratification section:

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.​

That part has, of course, trouble trying to reconcile with Article XIII of the Articles of Confederation and Perpetual Union:

ARTICLE XIII. Every state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterward confirmed by the legislatures of every state.​

One of the original thirteen States could have objected to that nine state qualification, refused to ratify, and there would have been a major legal problem to resolve. Once all thirteen States have ratified the Constitution, this is a moot point. The conditions in Article XIII of the Articles of Confederation and Perpetual Union have been met and everything is legal and complete. Article VII of the Constitution has been approved along with the rest of the Constitution. It is no longer possible to object legally to the nine state portion of the Constitution as a violation of the Articles of Confederation and Perpetual Union.

What that comes down to is this:

• Congress approved the Constitution and sent it on to the States for ratification on September 28, 1787
• the ninth State (New Hampshire) ratified on June 21, 1788
• the thirteenth State (Rhode Island) ratified on May 29, 1791

At any point between September 28, 1787 and May 29, 1791 -- three years and nine months -- any one of the original thirteen States could have protested and brought a case through the judicial system of the existing Union. None did. Rhode Island did not -- and Rhode Island had held up a change to the Articles of Confederation and Perpetual Union in 1781 by refusing to ratify (12 States against 1 State).

Granted, the judicial system of the Articles of Confederation and Perpetual Union was so weak, convoluted and arcane as to be virtually useless on such a serious issue. I doubt any single State, even one like Virginia or New York, could have actually forced a decision in their favor through it on this issue. The point is that no one even bothered to try.

BTW: I lumped Virginia and New York in with Rhode Island there because those three were regarded as the biggest rocks on the path to ratification and a large part of the reason the nine state condition was written in at the Philadelphia Convention. I don't think it was an accident that neither New York nor Virginia ratified among the first nine.

Thanks for your comments. Yes, St. George Tucker certainly was an interesting man. He served in the Virginia Militia during the American Revolution. During his legal career, he was a law professor and also served as a federal judge. His book Commentaries
published in 1803 eventually became the major treatise on American law in the early 19th century. He also wrote View of the Constitution which was the first detailed commentary on the U.S. Constitution after its ratification. Tucker had one of the most respected legal minds of his day.

 

[Potomac Pride]

This is a great find. I also think Tucker is making a flawed argument.

The Constitution was written by formal representatives of all the states. Thus they did have consent from all the states. It simply required an additional ratification step to make it become law.

Is there anything in the Articles or Constitution that requires universal consent of the governed? I'm pretty sure there isn't. (There's an entire alternate history universe whose point of departure involves the inclusion of that IRL omitted word.)

The original purpose of the convention was to only discuss and draft improvements to the existing AOC and the states would not have initially agreed to participate otherwise. However, once the Convention began, most of the delegates came to realize that a whole new system of government was needed instead of just a revision to the AOC. Furthermore, not all of the states were represented at the convention because Rhode Island failed to send any delegates.

 

[trice]

The original purpose of the convention was to only discuss and draft improvements to the existing AOC and the states would not have initially agreed to participate otherwise. However, once the Convention began, most of the delegates came to realize that a whole new system of government was needed instead of just a revision to the AOC. Furthermore, not all of the states were represented at the convention because Rhode Island failed to send any delegates.

Not showing up was a fairly routine act for Rhode Island. IIRR, they might have actually missed an entire session of the Congress one year in the 1780s. They took so long deciding to participate in the Annapolis Convention that their people had only reached Philadelphia when they heard the Annapolis Convention had adjourned.

When the Philadelphia Convention was held in 1787, the Country Party had just taken control of Rhode Island (they won five straight state-wide elections 1786-1790). The Country Party was essentially farmers and planters in the rural areas of Rhode Island; the seacoast towns had almost no members. In a state of about 69,000 people, the election of a Governor would barely break 4,000 votes cast -- heavy property requirements for voting ensured that land-owners dominated the elections. People who worked for wages and owned no property were ineligible, so more than half the "free white male" population could not vote. This resulted in the Country Party dominating Rhode Island politics.

The Country Party thought they could solve the state's debt problem by printing paper money to pay the bills. The first month they were in office, they printed $100,000 in script, backed up by ... well, as close to nothing as you might imagine. This led to massive inflation in Rhode Island. It also led to the rest of the states refusing to accept Rhode Island script. The merchants and bankers objected strongly -- but there were a lot more farmers and planters voting the Country Party line.

This got to the point where non-Country Party voters boycotted elections (in one election, only a single person in Providence voted). It got close to bloodshed on July 4, 1790 and the seacoast towns were beginning to talk "secession" from Rhode Island in late 1790-early 1791. That is when Rhode Island started asking the Congress for more time and finally got around to calling the Convention that actually ratified the Constitution in their second session.

 

[Andersonh1]

And yet, neither NC nor RI had ratified the Constitution. So how were they part of the union at that time?

They were obviously independent and outside the Union. And since Rhode Island did not participate in the creation of the Constitution, it cannot be said that "all the States" created the new Union and the new government.