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WI: Articles of Confederation is retained

History Learner

Well-known member
Professor John P. Kaminski is one of the leading Constitutional Scholars in the United States, having founded the Center for the Study of the American Constitution in the History Department at the University of Wisconsin-Madison, as well as co-edited thirty-five volumes of The Documentary History of the Ratification of the Constitution. Interestingly, however, Professor Kaminski has dipped into alternate history of the Constitution before; unusual for his field, he believes the Constitution was not inevitable and that the Articles of Confederation could, would and should've been reformed instead. According to Kaminski, the coming of the Constitution was dependent on two events in 1786:
  1. Secretary for Foreign Affairs John Jay should never have asked for a change in his instructions in negotiating with Spanish envoy Don Diego de Gardoqui.
  2. Congress should not have rejected New York’s ratification of the Impost of 1783.

In particular, the Congressional refusal of New York's Impost was, all things considered, probably a low probability event:

Congress should not have rejected New York’s adoption of the Impost. Melancton Smith, one of New York’s delegates to Congress and perhaps the ablest of Governor George Clinton’s lieutenants, argued passionately in Congress for approval of New York’s adoption.4 All of the other states had placed provisos on their adoptions of the Impost—some more restrictive than New York’s. All provided that their citizens’ rights as protected in their state constitutions and bills of rights could not be violated in prosecuting cases under the Impost. Smith reiterated his position in a pamphlet published in February 1787, in which he reprinted all of the states’ ratifications of the Impost.5 The Virginia delegates to Congress agreed with Smith that Congress should accept New York’s adoption of the Impost, implement the tariff, and go about its business collecting the revenue.6​
Had Congress followed this advice, its financial needs would have been met and no federal convention would have been called to meet in Philadelphia in the Spring of 1787. Furthermore, the states were already recovering from the economic depression. Another couple of years would have made the recovery more obvious, while at the national level, the Impost revenue (enhanced because of the surge in American commerce in the 1790s) joined with revenue from the sale of western lands, receipts from the post office, and payments of the state requisitions (if needed) would have made the Confederation sound economically.​

Without the Constitutional Convention, Kaminski argues that Congress would've adopted instead of spate of reforms that would've addressed the issues of the Confederation-but without the fundamental legal revolution that the Constitution represented:

What type of government would have evolved. The answer to that question is derived from the evolving pattern already underway and from the amendments proposed
in Congress in the summer of 1786.7 The first amendment gave Congress the power to regulate foreign and interstate commerce and to lay duties on imports and exports. This amendment would give Congress diplomatic leverage in negotiating commercial treaties with other countries and coordinating the sometimes contradictory commercial policies of the states. The power to lay duties would give Congress an independent source of revenue without dependence on the states. The rights of citizens as provided in state constitutions were protected from encroachment by Congress. All commercial legislation needed the approval of nine states in Congress to enact.

The next three amendments dealt with congressional requisitions. States were obligated to pay the requisitions. States not paying were assessed a ten percent surcharge. In delinquent states, Congress could appoint tax collectors who would directly assess the people in the manner previously used by the state legislature. Another amendment provided that “new Systems of Revenue” could be adopted for a maximum of fifteen years with the approval of only eleven states—not the unanimity required by the original Articles.

The penultimate amendment gave Congress the power to define treason and piracy and called for the creation of a federal court to try federal officers and to have appellate jurisdiction over cases tried in state courts on all matters concerning treaties, commerce, the collection of federal revenue, and all cases in which the United States was a party. In this federal court, the writ of habeas corpus and trial by jury were held to be sacred. No member of Congress or other federal officer could be a judge. The seven judges of this court were apportioned among the states accordingly: one from New Hampshire, Rhode Island, and Connecticut; one from Massachusetts; one from New York and New Jersey; one from Pennsylvania; one from Delaware and Maryland; one from Virginia; and one from North and South Carolina and Georgia.

The final amendment attempted to assure full representation in Congress—a problem Congress had regularly faced. Those delegates who did not attend Congress were declared ineligible to serve in Congress or in any other federal or state position.

Finally, Professor Kaminski speculates upon how the reformed Articles of Confederation would've impacted the United States:

I am confident that the Confederation Congress would have evolved into a parliamentary system of government. The committee of the states would have evolved into a senate—a kind of House of Lords—elected by Congress to serve a lengthy term, perhaps a dozen years. This body would protect the interests of the wealthy. John Jay would have become the actual prime minister. Another amendment to the Articles would have provided for a rotating prime minister to be elected from different states much the way Congress had been electing its president. In all acts of Congress and in all cases before the federal court, the rights of individuals would have been protected by the constitutions and bills of rights of the states. In essence, the state protections of rights would have been incorporated onto the federal government 150 years before the federal Bill of Rights was first incorporated onto the states in the case of Gitlow v. New York in 1925.
These amendments would have gone a long way to solidify Congress. They would have preserved the Confederation and left most domestic matters to the states. They would have done exactly what Thomas Jefferson said most Americans wanted: “to leave with the States all authorities which respected their own citizens only, and to transfer to the U.S. those which respected citizens of foreign or other states: to make us several as to ourselves, but one as to all others.”8 There would have been no need for a radical revolution in government. A federal convention would never have been called.​
 
One impact that has leapt to mind is that, without the Constitution, there is no sunset clause of the Trans-Atlantic Slave Trade as contained with Article 1, Section 9. That's important, because as many enslaved Africans were brought into the United States from 1780 to 1810 as during the previous 160 years prior. This is explained by the fact that alternatives to cotton existed, such as tobacco, rice, sugar and grains. In particular, tobacco was rapidly expanding in cultivation in Virginia and Maryland, being from there carried into South Carolina, Georgia, Kentucky, and Tennessee as new lands came in settlement. However, it is the grains which is most important, because slave-based wheat farming was profitable in the North; most famous in Illinois and Indiana IOTL, it was also so in New York and New Jersey:

Slavery_in_the_13_colonies.jpg


What happened historically to halt the spread of slavery was a combination of the end of the legal Trans-Atlantic slave trade and the Cotton Gin. Ironically, while making slavery much more profitable in the South, the newfound importance on cotton combined with the legally imposed cut off in the trade resulted in slavery becoming a Southern focused institution because it was so much more profitable; it was uneconomical to move slave populations into the North when more money could be had in the South given the now limited number of slaves.

Thus, without the above, it's entirely possible slavery sufficiently expands in the North to become solidified on the ground in New York and New Jersey, as well as OTL Illinois and Indiana.
 
This used to be periodically raised during the day, and I feel the consensus was that it would collapse before too long to leave a divided continent, likely one in which the largest states such as Virginia would become dominant.

Turtledove obviously turned it up to eleven with the Balkanisation in one of his Crosstime Traffic books.
 
I've actually seen a twitter historianTM argue that the doomed-ness of the Articles was overstated and still is-I'd have to dig up the thread but I think even before and during the Annapolis Convention there was a general push towards revising the features of the Articles that made it dysfunctional (specifically the unanimous vote requirement and I think the limited ability to tax or raise funds absent states giving them the money). So you obviously couldn't see the articles as-is stick around but you could easily see a situation where you make a more modest change to allow the feds tariff powers and maybe a mechanism to coerce states to cough up money plus allowing a majority of states to take binding decisions that aren't wars or treaties, followed by a series of piecemeal amendments and changes.
 
Without the ability to independently raise revenue, to actually enforce international agreements, and to raise armies - it isn't going to work very well.
This used to be periodically raised during the day, and I feel the consensus was that it would collapse before too long to leave a divided continent, likely one in which the largest states such as Virginia would become dominant.

Turtledove obviously turned it up to eleven with the Balkanisation in one of his Crosstime Traffic books.

To quote Kaminski:

The first amendment gave Congress the power to regulate foreign and interstate commerce and to lay duties on imports and exports. This amendment would give Congress diplomatic leverage in negotiating commercial treaties with other countries and coordinating the sometimes contradictory commercial policies of the states. The power to lay duties would give Congress an independent source of revenue without dependence on the states. The rights of citizens as provided in state constitutions were protected from encroachment by Congress. All commercial legislation needed the approval of nine states in Congress to enact.​
The next three amendments dealt with congressional requisitions. States were obligated to pay the requisitions. States not paying were assessed a ten percent surcharge. In delinquent states, Congress could appoint tax collectors who would directly assess the people in the manner previously used by the state legislature. Another amendment provided that “new Systems of Revenue” could be adopted for a maximum of fifteen years with the approval of only eleven states—not the unanimity required by the original Articles.​
The penultimate amendment gave Congress the power to define treason and piracy and called for the creation of a federal court to try federal officers and to have appellate jurisdiction over cases tried in state courts on all matters concerning treaties, commerce, the collection of federal revenue, and all cases in which the United States was a party. In this federal court, the writ of habeas corpus and trial by jury were held to be sacred. No member of Congress or other federal officer could be a judge. The seven judges of this court were apportioned among the states accordingly: one from New Hampshire, Rhode Island, and Connecticut; one from Massachusetts; one from New York and New Jersey; one from Pennsylvania; one from Delaware and Maryland; one from Virginia; and one from North and South Carolina and Georgia.​
 
I've actually seen a twitter historianTM argue that the doomed-ness of the Articles was overstated and still is-I'd have to dig up the thread but I think even before and during the Annapolis Convention there was a general push towards revising the features of the Articles that made it dysfunctional (specifically the unanimous vote requirement and I think the limited ability to tax or raise funds absent states giving them the money). So you obviously couldn't see the articles as-is stick around but you could easily see a situation where you make a more modest change to allow the feds tariff powers and maybe a mechanism to coerce states to cough up money plus allowing a majority of states to take binding decisions that aren't wars or treaties, followed by a series of piecemeal amendments and changes.

This is precisely the argument Kaminski makes; the Articles wasn't pre-determined to failure and in 1785-1787 was in the process to reforming itself until very specific events forced the Convention in Philadelphia. You definitely should check out the link and read his paper I've quoted from here, it's relatively short too so can be read in on sitting.
 
To quote Kaminski:

The first amendment gave Congress the power to regulate foreign and interstate commerce and to lay duties on imports and exports. This amendment would give Congress diplomatic leverage in negotiating commercial treaties with other countries and coordinating the sometimes contradictory commercial policies of the states. The power to lay duties would give Congress an independent source of revenue without dependence on the states. The rights of citizens as provided in state constitutions were protected from encroachment by Congress. All commercial legislation needed the approval of nine states in Congress to enact.​
The next three amendments dealt with congressional requisitions. States were obligated to pay the requisitions. States not paying were assessed a ten percent surcharge. In delinquent states, Congress could appoint tax collectors who would directly assess the people in the manner previously used by the state legislature. Another amendment provided that “new Systems of Revenue” could be adopted for a maximum of fifteen years with the approval of only eleven states—not the unanimity required by the original Articles.​
The penultimate amendment gave Congress the power to define treason and piracy and called for the creation of a federal court to try federal officers and to have appellate jurisdiction over cases tried in state courts on all matters concerning treaties, commerce, the collection of federal revenue, and all cases in which the United States was a party. In this federal court, the writ of habeas corpus and trial by jury were held to be sacred. No member of Congress or other federal officer could be a judge. The seven judges of this court were apportioned among the states accordingly: one from New Hampshire, Rhode Island, and Connecticut; one from Massachusetts; one from New York and New Jersey; one from Pennsylvania; one from Delaware and Maryland; one from Virginia; and one from North and South Carolina and Georgia.​


This just reads like a more complicated and somewhat narrower version of what the US ended up with at the time of the Constitutional Convention, absent further legislation. The US Constitution doesn't require Federal Courts other than the Supreme Court, and it was on that basis that the Supreme Court asserted (given its narrow view of its own original jurisdiction and its rejection of the idea Congress could give it more authority) that it had Appellate Authority over State Court decisions on questions of Federal Law.

It'd become a semi-parliamentary version of the US government, and would still likely grow in power over time. Even if the Articles of Confederation insists upon *expressly granted* powers (whereas the US tenth amendment just says granted powers ... a very important difference given the idea of implicit powers) one could plausibly weasel around and contend that the provision only applies to the original article and not its amendments. The power of the Federal Courts, Commerce Authorities, and Revenue authorities

The biggest problem is the composition of the Court. Are the Justices appointed by the President of the Confederation Congress, or by the grouping of States themselves in conjunction with one another? Are they confirmed by the body itself? What is the required number of people to confirm the body? How does one enforce the proportionate allocation, except with threat of violence or secession by the member states? Are the first thirteen states to forever be a first among equals, with other states not allowed a presence on the bench absent full amendment? May other seats be added by legislation, or by does there need to be an amendment?

As for the bit about direct taxation - that's basically a constitutional vision of a majority of states bullying dissenting states, whereas the Federal Constitution of OTL is one premised upon broad consensus within a federal structure.


Over time, my supposition is that through broad construction by the Confederal Supreme Court and/or by Amendment, you'd get to something more or less amounting to the US Constitution of OTL. Ultimately, whereas the Article modifications attempted to substitute unanimity with supermajority and state-clustering, the US Constitution substituted unanimity with equality of states which act on behalf of individuals (the Senate) and equality of the individuals who comprise the American whole (the House). The Amended-confederal alternative just seems likely to trend towards the Federal structure over time.
 
Yea, I think the biggest difference is that you wind up with a similar federal/state balance (maybe it looks more like Canada) but maybe with a more semi-parliamentary structure (or just like ditching any pretense of "state power balancing" at the federal level)
 
honestly I feel like "articles survive and lead to a more centralized US" is equally possible just by having a looser founding document that doesn't lock in some of the anti-centralization features of OTL's constitution RIIIIIGHT before industrialization makes centralization more appealing and reasonable.
 
I thought it could lead to a constitution that would be easier to amend, but having compared the American constitution to 19th century constitutions, it isn’t all that bad actually. American political culture it self is the biggest problem, and I don’t think an AoC US would be unrecognizably different, unless butterflies cause the democracy to fall somehow.
 
honestly I feel like "articles survive and lead to a more centralized US" is equally possible just by having a looser founding document that doesn't lock in some of the anti-centralization features of OTL's constitution RIIIIIGHT before industrialization makes centralization more appealing and reasonable.

I strongly agree.

Plus, having a unicameral continental congress rather than the system of divided legislative power and separate executive power seems like it'd trend towards such a more unitary system.


Constitutions - written or unwritten - only work to the extent that they're structured in a way that the people they claim authority from can operate within it. The US Constitution is quite well designed for the expectations and attitudes of the American people (essentially acknowledging the massive amount of diversity in the US - religious, cultural, geographic, etc.). The US system requires high levels of consensus precisely because Americans are a divisive lot bound to try and run rough-shod over one another because they don't always understand why people in other parts of the US (or their own states) are the way they are and do what they do. It's both rigid in some respects, but remarkable flexible in others. The US plainly does have unwritten constitutional norms, large gaps in its constitutional structure it leaves to be filled by a mix of legislation and custom, and provisions which can be construed broadly by analogy to apply to new circumstances (such as the Fourth Amendment applying to searches of an iPhone - at a certain level Scalia'esque originalism really does just become something only a couple of degrees off from living constitutionalism in some contexts such as this).

The US Government pretty much never recommends using the US Constitution to other countries, ironically. But this likely has a lot to do with US-specific quirks. But ... as the UK becomes more diverse and more regionalistic, we see folks like Gordon Brown seek to turn the House of Lords into something similar to the US (or at least Canadian...) Senate. Germany's system also isn't dissimilar to the US's in various ways (respected Constitutional Court, strong Federalist elements, a legislature which balances regionalism with proportionate representation, etc.).
 
Professor John P. Kaminski is one of the leading Constitutional Scholars in the United States, having founded the Center for the Study of the American Constitution in the History Department at the University of Wisconsin-Madison, as well as co-edited thirty-five volumes of The Documentary History of the Ratification of the Constitution. Interestingly, however, Professor Kaminski has dipped into alternate history of the Constitution before; unusual for his field, he believes the Constitution was not inevitable and that the Articles of Confederation could, would and should've been reformed instead. According to Kaminski, the coming of the Constitution was dependent on two events in 1786:
  1. Secretary for Foreign Affairs John Jay should never have asked for a change in his instructions in negotiating with Spanish envoy Don Diego de Gardoqui.
  2. Congress should not have rejected New York’s ratification of the Impost of 1783.

In particular, the Congressional refusal of New York's Impost was, all things considered, probably a low probability event:

Congress should not have rejected New York’s adoption of the Impost. Melancton Smith, one of New York’s delegates to Congress and perhaps the ablest of Governor George Clinton’s lieutenants, argued passionately in Congress for approval of New York’s adoption.4 All of the other states had placed provisos on their adoptions of the Impost—some more restrictive than New York’s. All provided that their citizens’ rights as protected in their state constitutions and bills of rights could not be violated in prosecuting cases under the Impost. Smith reiterated his position in a pamphlet published in February 1787, in which he reprinted all of the states’ ratifications of the Impost.5 The Virginia delegates to Congress agreed with Smith that Congress should accept New York’s adoption of the Impost, implement the tariff, and go about its business collecting the revenue.6​
Had Congress followed this advice, its financial needs would have been met and no federal convention would have been called to meet in Philadelphia in the Spring of 1787. Furthermore, the states were already recovering from the economic depression. Another couple of years would have made the recovery more obvious, while at the national level, the Impost revenue (enhanced because of the surge in American commerce in the 1790s) joined with revenue from the sale of western lands, receipts from the post office, and payments of the state requisitions (if needed) would have made the Confederation sound economically.​

Without the Constitutional Convention, Kaminski argues that Congress would've adopted instead of spate of reforms that would've addressed the issues of the Confederation-but without the fundamental legal revolution that the Constitution represented:



Finally, Professor Kaminski speculates upon how the reformed Articles of Confederation would've impacted the United States:

I am confident that the Confederation Congress would have evolved into a parliamentary system of government. The committee of the states would have evolved into a senate—a kind of House of Lords—elected by Congress to serve a lengthy term, perhaps a dozen years. This body would protect the interests of the wealthy. John Jay would have become the actual prime minister. Another amendment to the Articles would have provided for a rotating prime minister to be elected from different states much the way Congress had been electing its president. In all acts of Congress and in all cases before the federal court, the rights of individuals would have been protected by the constitutions and bills of rights of the states. In essence, the state protections of rights would have been incorporated onto the federal government 150 years before the federal Bill of Rights was first incorporated onto the states in the case of Gitlow v. New York in 1925.
These amendments would have gone a long way to solidify Congress. They would have preserved the Confederation and left most domestic matters to the states. They would have done exactly what Thomas Jefferson said most Americans wanted: “to leave with the States all authorities which respected their own citizens only, and to transfer to the U.S. those which respected citizens of foreign or other states: to make us several as to ourselves, but one as to all others.”8 There would have been no need for a radical revolution in government. A federal convention would never have been called.​
Darn. I wish I had found this article 5 years ago when I was researching for my AH about the Articles being retained!
 
This just reads like a more complicated and somewhat narrower version of what the US ended up with at the time of the Constitutional Convention, absent further legislation. The US Constitution doesn't require Federal Courts other than the Supreme Court, and it was on that basis that the Supreme Court asserted (given its narrow view of its own original jurisdiction and its rejection of the idea Congress could give it more authority) that it had Appellate Authority over State Court decisions on questions of Federal Law.

It'd become a semi-parliamentary version of the US government, and would still likely grow in power over time. Even if the Articles of Confederation insists upon *expressly granted* powers (whereas the US tenth amendment just says granted powers ... a very important difference given the idea of implicit powers) one could plausibly weasel around and contend that the provision only applies to the original article and not its amendments. The power of the Federal Courts, Commerce Authorities, and Revenue authorities

The biggest problem is the composition of the Court. Are the Justices appointed by the President of the Confederation Congress, or by the grouping of States themselves in conjunction with one another? Are they confirmed by the body itself? What is the required number of people to confirm the body? How does one enforce the proportionate allocation, except with threat of violence or secession by the member states? Are the first thirteen states to forever be a first among equals, with other states not allowed a presence on the bench absent full amendment? May other seats be added by legislation, or by does there need to be an amendment?

I don't see how, given that the Constitution doesn't spell out the purview of SCOTUS as explicitly as done here with the Confederation version, with the composition method of said Court being a further check at any attempt to redefine it. Even further is the fact, any application of "Federal Law" and its relevancy to the States is hampered according to Kaminiski:

In all acts of Congress and in all cases before the federal court, the rights of individuals would have been protected by the constitutions and bills of rights of the states. In essence, the state protections of rights would have been incorporated onto the federal government 150 years before the federal Bill of Rights was first incorporated onto the states in the case of Gitlow v. New York in 1925.​

As for the bit about direct taxation - that's basically a constitutional vision of a majority of states bullying dissenting states, whereas the Federal Constitution of OTL is one premised upon broad consensus within a federal structure.

Given any measure would require 11 out of 12 States to approve and were time limited to 15 years, I don't foresee this being an issue.

Over time, my supposition is that through broad construction by the Confederal Supreme Court and/or by Amendment, you'd get to something more or less amounting to the US Constitution of OTL. Ultimately, whereas the Article modifications attempted to substitute unanimity with supermajority and state-clustering, the US Constitution substituted unanimity with equality of states which act on behalf of individuals (the Senate) and equality of the individuals who comprise the American whole (the House). The Amended-confederal alternative just seems likely to trend towards the Federal structure over time.

I see too many checks and balances for anything like IOTL to play out, given the explicit nature of much of it directly limits the means of instituting anything like the 13th, 14th, 15th, 16th, etc Amendments of OTL, with all that means for the centralizing ability of the U.S. Government. I could, however, see something like the Swiss model evolving into existence over time, I do concede, at least as I understand it.
 
You (or Kaminski?) assume a degree of formalistic adherence which seems remarkably unlikely to play out, given that without sufficient flexibility the system would likely just collapse. Are new states like Ohio or Kentucky or Vermont supposed to just accept eternal second-tier status?

Also, the first Bill of Rights provision to be applied against the States was the Takings Clause in 1897, in Chicago, Burlington & Quincy Railroad Company v. Chicago.
 
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