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:

Was this familiar chain of events inevitable as our history books so often imply? Obviously not. In fact, had two important events not occurred in 1786, all of American history would have been different. These two events could easily have been avoided; and, in fact, probably should have been avoided. What were these two events?​
  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, 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 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.​
 
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Skallagrim

Well-known member
It is certainly an attractive prospect. I do have some notes regarding Kaminski's analysis. His facts are great, but there's one key omission and one big (and, I believe, unfounded) assumption. This ends up skewing his 'projection' of what would have happened.


1. The big omission is the role of Shays' Rebellion. He puts his focus exclusively on the financial situation of the Congress, and touts this as the (apparently) only reason for the Convention to ultimately be called. The conditio sine qua non. This is demonstrably incorrect. The precise degree to which Shays' Rebellion influenced the Convention is debatable, but it is practically a unanimous view that it managed to swing most moderates (and even a number of anti-federalists!) to the "strong government" camp -- at least temporarily. As such, the Convention in Philadelphia was dominated by strong-government advocates.

This suggests that even without the New York impost debacle, there would still be plenty of alarm, a Convention would still occur, and it would still be dominated by the same people. Presumably, it would produce a similar result. In general, this means that Kaminski's projection that there would be no Convention at all and that "Congress would've adopted instead of spate of reforms [itself]" is not really credible. There was going to be a special Convention. Even with the POD as given, that Convention was still going to replace the Articles, due to the panic caused by Shays' Rebellion.

Therefore, I conclude that we need a better POD to get the result Kaminski proposes. The obvious POD is that Shays' Rebellion is either averted completely (which requires somehow getting an anti-federalist administration in power in Massachusetts)... or having the Rebellion crushed so mercilessly and cruelly that public opinion swings around. The Rebels become martyrs, and the proto-federalist proponents of strong government (and of crushing the Rebellion) become seen as "the heirs of King George" and become universally hated.

That latter POD effectively kills the Consititution. The outcome would also realistically solve the New York impost question in favour of New York, since Clinton (a noted anti-federalist) would be utterly vindicated.


2. The big assumption is that the various proposals he lists would be adopted as presented. I seriously doubt this, because (as I've outlined), any scenario that preserves the Articles must be predicated upon the proto-federalists being discredited and the anti-federalists being vindicated in the public opinion. This means that any alterations to the Articles are going to be skewed into the anti-federalist direction, in the same way that their opponents in OTL skewed the Constitution in their direction. This would mean that the amendments Kaminski lists would end up being altered quite a bit before being adopted, in order to more closely represent anti-federalist wishes. I agree that most of what Kaminski lists would just pass as he presents it, but there are key quibbles with his assumption. I'll list these here:

-- Giving Congress the power to outright regulate interstate commerce. I doubt that very much. Tellingly, Kaminski subsequently formulates it in the much softer phrasing "coordinating the sometimes contradictory commercial policies of the states", which is far more probable. I'd expect that instead of getting the hard power to legislate such matters, Congress would be permitted to appoint permanent arbitrators whose job is to resolve trade disputes between the states on an ad hoc basis. That's far more more representative of what the anti-federalists wanted.

-- The amendment allowing Congress to adopt "new Systems of Revenue" without the unanimous consent of all the states is not getting passed. No way, no how. Since Congress would be getting an independent source of revenue already, per the power to lay duties, there would not be the pressing need for this if a political cimate of fear (of instability and rebellion) didn't pervade the whole discussion (as it did at the OTL Convention).

-- The proposal to create a federal court may end up getting adopted, but Kaminski is very eager to gloss over the fact that the anti-federalists strongly distrusted the judiciary. Jefferson in particular was rigidly opposed to anything like a Supreme Court, and felt that only Congress itself should be the ultimate arbiter. In any case, the idea of turning this "federal court" into just another sort of Congress, representing all the states, would be viewed as both superfluous (the Congress already went by one-state-one-vote) and dangerous....

-- ...precisely because such a thing could develop into a House of Lords, which the anti-federalists Did. Not. Want. So, given any POD that might see the Articles preserved, this 'House of Lords' thing is definitely not happening. If a federal court is created, specific measures will be put in in place, with the precise aim of preventing such an institution from becoming a bastion of elite interests.

-- Since the Congress of the Confederation had no Executive, the notion of there being a "Prime Minister" is really weird. Yes, a federal executive would be created, with a "Chief Executive" appointed by Congress. But this wouldn't be a Prime Minister, since there wouldn't be a President or a King for him to anwer to. Rather than a "parliamentary republic" as Kaminski seems to think, or the "presidential republic" of OTL... the Confederation of the United States would be a congressional republic.



I hope these points help in clarifying what would or would not be realistic in the event of the Articles being preserved. As I have argued elsewhere, I think it would be a very desirable outcome.
 
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History Learner

Well-known member
It is certainly an attractive prospect. I do have some notes regarding Kaminski's analysis. His facts are great, but there's one key omission and one big (and, I believe, unfounded) assumption. This ends up skewing his 'projection' of what would have happened.


1. The big omission is the role of Shays' Rebellion. He puts his focus exclusively on the financial situation of the Congress, and touts this as the (apparently) only reason for the Convention to ultimately be called. The conditio sine qua non. This is demonstrably incorrect. The precise degree to which Shays' Rebellion influenced the Convention is debatable, but it is practically a unanimous view that it managed to swing most moderates (and even a number of anti-federalists!) to the "strong government" camp -- at least temporarily. As such, the Convention in Philadelphia was dominated by strong-government advocates.

This suggests that even without the New York impost debacle, there would still be plenty of alarm, a Convention would still occur, and it would still be dominated by the same people. Presumably, it would produce a similar result. In general, this means that Kaminski's projection that there would be no Convention at all and that "Congress would've adopted instead of spate of reforms [itself]" is not really credible. There was going to be a special Convention. Even with the POD as given, that Convention was still going to replace the Articles, due to the panic caused by Shays' Rebellion.

Therefore, I conclude that we need a better POD to get the result Kaminski proposes. The obvious POD is that Shays' Rebellion is either averted completely (which requires somehow getting an anti-federalist administration in power in Massachusetts)... or having the Rebellion crushed so mercilessly and cruelly that public opinion swings around. The Rebels become martyrs, and the proto-federalist proponents of strong government (and of crushing the Rebellion) become seen as "the heirs of King George" and become universally hated.

That latter POD effectively kills the Consititution. The outcome would also realistically solve the New York impost question in favour of New York, since Clinton (a noted anti-federalist) would be utterly vindicated.


2. The big assumption is that the various proposals he lists would be adopted as presented. I seriously doubt this, because (as I've outlined), any scenario that preserves the Articles must be predicated upon the proto-federalists being discredited and the anti-federalists being vindicated in the public opinion. This means that any alterations to the Articles are going to be skewed into the anti-federalist direction, in the same way that their opponents in OTL skewed the Constitution in their direction. This would mean that the amendments Kaminski lists would end up being altered quite a bit before being adopted, in order to more closely represent anti-federalist wishes. I agree that most of what Kaminski lists would just pass as he presents it, but there are key quibbles with his assumption. I'll list these here:

-- Giving Congress the power to outright regulate interstate commerce. I doubt that very much. Tellingly, Kaminski subsequently formulates it in the much softer phrasing "coordinating the sometimes contradictory commercial policies of the states", which is far more probable. I'd expect that instead of getting the hard power to legislate such matters, Congress would be permitted to appoint permanent arbitrators whose job is to resolve trade disputes between the states on an ad hoc basis. That's far more more representative of what the anti-federalists wanted.

-- The amendment allowing Congress to adopt "new Systems of Revenue" without the unanimous consent of all the states is not getting passed. No way, no how. Since Congress would be getting an independent source of revenue already, per the power to lay duties, there would not be the pressing need for this if a political cimate of fear (of instability and rebellion) didn't pervade the whole discussion (as it did at the OTL Convention).

-- The proposal to create a federal court may end up getting adopted, but Kaminski is very eager to gloss over the fact that the anti-federalists strongly distrusted the judiciary. Jefferson in particular was rigidly opposed to anything like a Supreme Court, and felt that only Congress itself should be the ultimate arbiter. In any case, the idea of turning this "federal court" into just another sort of Congress, representing all the states, would be viewed as both superfluous (the Congress already went by one-state-one-vote) and dangerous....

-- ...precisely because such a thing could develop into a House of Lords, which the anti-federalists Did. Not. Want. So, given any POD that might see the Articles preserved, this 'House of Lords' thing is definitely not happening. If a federal court is created, specific measures will be put in in place, with the precise aim of preventing such an institution from becoming a bastion of elite interests.

-- Since the Congress of the Confederation had no Executive, the notion of there being a "Prime Minister" is really weird. Yes, a federal executive would be created, with a "Chief Executive" appointed by Congress. But this wouldn't be a Prime Minister, since there wouldn't be a President or a King for him to anwer to. Rather than a "parliamentary republic" as Kaminski seems to think, or the "presidential republic" of OTL... the Confederation of the United States would be a congressional republic.



I hope these points help in clarifying what would or would not be realistic in the event of the Articles being preserved. As I have argued elsewhere, I think it would be a very desirable outcome.

Professor Kaminski doesn't dismiss Shay's Rebellion, but the timing of it means it cannot be labeled as the instigator of the Constitutional process:

As described by the book Decision in Philadelphia, Shays’ Rebellion “hung like a shadow over the old Congress, and gave both impetus and urgency to the Constitutional Convention.” According to historian John Kaminski, Shays’ Rebellion had an “enormous impact” beyond Massachusetts. “By October of 1786 the news of Shays’ Rebellion had spread from one end of America to the other,” just in time to reinforce the urgency of the Annapolis Convention’s call to meet in Philadelphia in May of 1787. Indeed, on February 21, only three weeks after Shays’ defeat at the Springfield armory, the Confederation Congress officially approved a resolution drafted by James Madison calling for states to attend the Constitutional Convention.​
The Annapolis Convention pre-dates Shay's Rebellion as a national issue, the reason for the former's Call for Convention was based on the issues Kaminski outlines. IOTL, the Rebellion served as an addendum, not a main cause, for the Constitution with the more pressing issues being the ones Kaminski outlines. Even if Shay's Rebellion still happens, I do not see it as being sufficient to engender a Constitutional Convention, because the most pressing issues will have been resolved and the Articles of Confederation would likely already be on the path of reform.
 

Skallagrim

Well-known member
Professor Kaminski doesn't dismiss Shay's Rebellion, but the timing of it means it cannot be labeled as the instigator of the Constitutional process:

As described by the book Decision in Philadelphia, Shays’ Rebellion “hung like a shadow over the old Congress, and gave both impetus and urgency to the Constitutional Convention.” According to historian John Kaminski, Shays’ Rebellion had an “enormous impact” beyond Massachusetts. “By October of 1786 the news of Shays’ Rebellion had spread from one end of America to the other,” just in time to reinforce the urgency of the Annapolis Convention’s call to meet in Philadelphia in May of 1787. Indeed, on February 21, only three weeks after Shays’ defeat at the Springfield armory, the Confederation Congress officially approved a resolution drafted by James Madison calling for states to attend the Constitutional Convention.​
The Annapolis Convention pre-dates Shay's Rebellion as a national issue, the reason for the former's Call for Convention was based on the issues Kaminski outlines. IOTL, the Rebellion served as an addendum, not a main cause, for the Constitution with the more pressing issues being the ones Kaminski outlines. Even if Shay's Rebellion still happens, I do not see it as being sufficient to engender a Constitutional Convention, because the most pressing issues will have been resolved and the Articles of Confederation would likely already be on the path of reform.
I disagree with the assessment that you derive from the quote. Without Shays' Rebellion, but with the matters Kamiski cites
(the Jay matter and the New York impost) remaining as in OTL, I'm pretty confident that the Philadelphia convention would happen... but wouldn't have the impetus to outright replace the Articles. You ignore that quite a lot of people still expected that there would be reform of the Articles when the convention started -- not full replacement. Prcisely the climate of fear, that Kaminski himself describes as "hanging like a shadow" and "giving both impetus and urgency to the Constitutional Convention", made it possible that a clear majority rapidly went along with the more radical plans.

Without Shays' Rebellion, no such majority would have existed. It wasn't imposts that led men to that kind of drastic step. It was fear of anarchy, deliberately fanned on by the nationalists like Hamilton.

The conclusion is obvious: not the matters cited by Kaminski, but Shays' Rebellion, ultimately proved to be the key factor in making the outright replacement of the Articles possible. If you keep the rebellion, the other factors just don't make that much of a difference. The climate of fear will still push men towards a special convention, and will still ensure that strong-government men dominate that convention. And then the Articles get replaced.
 

History Learner

Well-known member
I disagree with the assessment that you derive from the quote. Without Shays' Rebellion, but with the matters Kamiski cites
(the Jay matter and the New York impost) remaining as in OTL, I'm pretty confident that the Philadelphia convention would happen... but wouldn't have the impetus to outright replace the Articles. You ignore that quite a lot of people still expected that there would be reform of the Articles when the convention started -- not full replacement. Prcisely the climate of fear, that Kaminski himself describes as "hanging like a shadow" and "giving both impetus and urgency to the Constitutional Convention", made it possible that a clear majority rapidly went along with the more radical plans.

Without Shays' Rebellion, no such majority would have existed. It wasn't imposts that led men to that kind of drastic step. It was fear of anarchy, deliberately fanned on by the nationalists like Hamilton.

The conclusion is obvious: not the matters cited by Kaminski, but Shays' Rebellion, ultimately proved to be the key factor in making the outright replacement of the Articles possible. If you keep the rebellion, the other factors just don't make that much of a difference. The climate of fear will still push men towards a special convention, and will still ensure that strong-government men dominate that convention. And then the Articles get replaced.

If the other factors don't make much of a difference, you have to explain why the Annapolis Convention was convened before Shay's Rebellion became a national issue. You then have to further consider the timing of events; the attempted seizure of the Federal Arsenal-the most violent stage of the Rebellion-came when the States were already considering the Convention call for Philadelphia. If Shay's Rebellion was decisive, we have to assume most of the Founding Fathers had precognition, because the timing of events just does not line up. I have no doubt, nor does Kaminski for that matter, that the Rebellion played a roll in shaping events, but it was not the main factor, rather a supplement that underscored existing problems.
 

Skallagrim

Well-known member
If the other factors don't make much of a difference, you have to explain why the Annapolis Convention was convened before Shay's Rebellion became a national issue. You then have to further consider the timing of events; the attempted seizure of the Federal Arsenal-the most violent stage of the Rebellion-came when the States were already considering the Convention call for Philadelphia. If Shay's Rebellion was decisive, we have to assume most of the Founding Fathers had precognition, because the timing of events just does not line up. I have no doubt, nor does Kaminski for that matter, that the Rebellion played a roll in shaping events, but it was not the main factor, rather a supplement that underscored existing problems.
The notion that the Articles needed reform wasn't new. This had been discussed and worked towards for years. The notion that this should at least be discussed through some special convention wasn't new, either.

The fact that this convention would usurp unilateral powers to not just advise the Congress but actually issue forth a document.... that was new. That the men present were so ready to embrace that notion was not due to tax disputes (don't tell George Lucas!) but due to the grim premonition of mob rule and civil war. That the men dispatched after the fact overwhelmingly leaned in the direction on nationalism and centralism was the result of the same factor.

The rebellion was not the main factor in generating a convention to discuss alteration of the existing Articles, no. But neither were the factors that Kaminski has cited! That process had been long in the making. What the rebellion did, however, was decisively alter the nature and the extent of the alterations that were ultimately implemented. (Foremost of the effects, naturally, being that the big "alteration" actually turned out to be "wholesale replacement".)

As far as timing goes: Shays' Rebellion ended in February 1787, having begun in the summer of the preceding year. That very same month, the Congress called for the convention of state delegates in Philadelphia, to propose revisions to the Articles. Anyone who thinks that the "timing of events just does not line up" is missing the obvious. It lines up perfectly. The gathering in Philadelphia was to occur exactly in the time-frame during which pro-centralist sentiments were at their absolute peak, precisely in response to the recent rebellion.
 
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History Learner

Well-known member
The notion that the Articles needed reform wasn't new. This had been discussed and worked towards for years. The notion that this should at least be discussed through some special convention wasn't new, either.

The fact that this convention would usurp unilateral powers to not just advise the Congress but actually issue forth a document.... that was new. That the men present were so ready to embrace that notion was not due to tax disputes (don't tell George Lucas!) but due to the grim premonition of mob rule and civil war. That the men dispatched after the fact overwhelmingly leaned in the direction on nationalism and centralism was the result of the same factor.

The rebellion was not the main factor in generating a convention to discuss alteration of the existing Articles, no. But neither were the factors that Kaminski has cited! That process had been long in the making. What the rebellion did, however, was decisively alter the nature and the extent of the alterations that were ultimately implemented. (Foremost of the effects, naturally, being that the big "alteration" actually turned out to be "wholesale replacement".)

So the idea of reform came out of the ether? If it's not the issues Kaminski cites-which was the basis of the Annapolis Convention mind you-nor the rebellion, it springing out of nothing is the only conclusion that can be drawn and I don't find that to be a convincing argument for getting the majority of the American States aboard a major overall of the existing Government like the Constitution was. Rather, I can see the existing reform movement kneecapping the calls for a Convention since the needed reforms are coming through Congress anyway, with Shay's Rebellion serving as a motivator for such efforts.

As far as timing goes: Shays' Rebellion ended in February 1787, having begun in the summer of the preceding year. That very same month, the Congress called for the convention of state delegates in Philadelphia, to propose revisions to the Articles. Anyone who thinks that the "timing of events just does not line up" is missing the obvious. It lines up perfectly. The gathering in Philadelphia was to occur exactly in the time-frame during which pro-centralist sentiments were at their absolute peak, precisely in response to the recent rebellion.

Except it doesn't; the Annapolis Convention issued its call for a convention-which spurred the whole thing in the first place-before the Rebellion became a major issue. Further, the States had begun deliberating said call in January of 1787, before the attempted seizure of the arsenal at Springfield, which is considered the most violent phase of the rebellion. In other words, all the key moments don't line up at all.
 

Skallagrim

Well-known member
So the idea of reform came out of the ether? If it's not the issues Kaminski cites-which was the basis of the Annapolis Convention mind you-nor the rebellion, it springing out of nothing is the only conclusion that can be drawn
No, that's obviously not the only conclusion that can be drawn. Are you trying to troll here?

The Articles of Confederation had run into issues from the very moment they were drawn up, because the Congressional power to actually compel the states to do anything was nearly non-existent. There was no executive, and Congress couldn't actually force the states to provide the funding required for most mandated tasks. There were various other issues, too. Complaints about them had started early on: Washington called for alterations during the War! But the will to actually enact change had to be gradually gathered up. Primarily because most states were, in fact, rather attached to their independent power. But by 1786, it was already quite clear that some kind of reform would be needed, and the overal majority to make such a thing happen was also already there. The question was about the nature and extent of any alteration.

Then Shays' Rebellion broke out, and that is what quickly changed the pre-existing movement to revise the Articles into a movement to enact a far more radical change.

So you write, just to repeat:

"So the idea of reform came out of the ether?"

What reform? The idea to revise the Articles had been building for years, as I have explained. That certainly didn't come out of the ether, and this far precedes the issues Kaminski cites. The swerve towards full replacement, on the other hand, we may lay squarely at the feet of Shays' Rebellion.

Then you write:

"If it's not the issues Kaminski cites (...) nor the rebellion, it springing out of nothing is the only conclusion that can be drawn"

If you're talking about the notion of revising the Articles: it's crazy to make it an either-or between the two causes you cite, because criticism of th Articles clearly precedes both of those. Surely you cannot think that the notion of revising the Articles of Confederation somehow hadn't existed earlier? Primarily, the fact that Congress could not levy taxes, and could only make requisitions upon the states, was cited as a fundamental problem from 1777 onward.

If you're, on the other hand, talking about the specific notion of replacing the Articles... that was a result of Shays' Rebellion. So if that's what you mean here, then your above assumption that it's not is just incorrect.

In short: it's unclear what you're trying to actually argue here, but you're making a wrong assumption either way.


Except it doesn't; the Annapolis Convention issued its call for a convention-which spurred the whole thing in the first place-before the Rebellion became a major issue.
For starters, the Annapolis Convention never issued a "call". It sent a convention report to Congress and the legislatures of the various states. This report contained a request that another convention be held to discuss amending the Articles of Confederation. When was this? September 14th. Shays' Rebellion has broken out in August, and had grown very worrying to the establishment by the end of August. You seem to bank on actual violent escalation as it being "a major issue". But that wasn't the perception at the time. Already at the Annapolis Convention, the trouble in Massachusetts was considered extremely worrying.


Further, the States had begun deliberating said call in January of 1787, before the attempted seizure of the arsenal at Springfield, which is considered the most violent phase of the rebellion. In other words, all the key moments don't line up at all.
On October 22, 1786, James Warren wrote to John Adams: "We are now in a state of Anarchy and Confusion bordering on Civil War."

That sounds like it was taken pretty seriously by then already! And even viewed in that light by men who were usually known for their criticism of strong government.

By November 1786, even anti-federalist types sympathetic to the grievances of the insurrection were calling it treason. In that month, Massachusetts enacted a new Riot Act, and a resolution suspending habeas corpus -- so the authorities could legally keep people in jail without trial. New legislation was proposed later that month to ensure that "rebellion in a republic" should be punished by execution.

Things were clearly escalating, and panic was evidently spreading, long before you seem to believe. The fact that many of the anti-federalist types actually supported these kinds of oppressive measures shows how acute the panic was, and how the climate in the union had rapidly swung towards strong-government views. And why? Not because of tax disputes. Purely and exclusively because of the Rebellion.

Subsequently, Massachusetts passed legislation prohibiting all speech critical of the government. Again, not something you'd expect to see if people still saw all of this as just a minor brush-up, wouldn't you agree?

By November 28-30, the arrests of some rebel leaders (involving considerable violence) caused rebels in the West of the state to begin outright organising to overthrow of the state government by force of arms. They didn't keep silent about it, and this was known far and wide by the end of December.

In short: the key moments very much do line up. The states began selecting their delegates for the proposed convention during a time when the nation feared a forthcoming descent into outright civil war. The Congress called for this convention to actually be gathered with the clang of arms already heard in the back-ground. And the convention actually met in the shadow of this conflict.

It set the tone. It defined the outcome like no other factor.


(P.S. -- During the ratification debate, federalist newspapers called opponents of ratification "Shaysites", in reference to the Rebellion. This, I think, goes to show to what extent the Federalists defined their goal -- and to what extent the Constitution itself was understood -- as a response to Shays' Rebellion in particular.)
 
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History Learner

Well-known member
No, that's obviously not the only conclusion that can be drawn. Are you trying to troll here?

The Articles of Confederation had run into issues from the very moment they were drawn up, because the Congressional power to actually compel the states to do anything was nearly non-existent. There was no executive, and Congress couldn't actually force the states to provide the funding required for most mandated tasks. There were various other issues, too. Complaints about them had started early on: Washington called for alterations during the War! But the will to actually enact change had to be gradually gathered up. Primarily because most states were, in fact, rather attached to their independent power. But by 1786, it was already quite clear that some kind of reform would be needed, and the overal majority to make such a thing happen was also already there. The question was about the nature and extent of any alteration.

Then Shays' Rebellion broke out, and that is what quickly changed the pre-existing movement to revise the Articles into a movement to enact a far more radical change.

So you write, just to repeat:

"So the idea of reform came out of the ether?"

What reform? The idea to revise the Articles had been building for years, as I have explained. That certainly didn't come out of the ether, and this far precedes the issues Kaminski cites. The swerve towards full replacement, on the other hand, we may lay squarely at the feet of Shays' Rebellion.

Then you write:

"If it's not the issues Kaminski cites (...) nor the rebellion, it springing out of nothing is the only conclusion that can be drawn"

If you're talking about the notion of revising the Articles: it's crazy to make it an either-or between the two causes you cite, because criticism of th Articles clearly precedes both of those. Surely you cannot think that the notion of revising the Articles of Confederation somehow hadn't existed earlier? Primarily, the fact that Congress could not levy taxes, and could only make requisitions upon the states, was cited as a fundamental problem from 1777 onward.

If you're, on the other hand, talking about the specific notion of replacing the Articles... that was a result of Shays' Rebellion. So if that's what you mean here, then your above assumption that it's not is just incorrect.

In short: it's unclear what you're trying to actually argue here, but you're making a wrong assumption either way.



For starters, the Annapolis Convention never issued a "call". It sent a convention report to Congress and the legislatures of the various states. This report contained a request that another convention be held to discuss amending the Articles of Confederation. When was this? September 14th. Shays' Rebellion has broken out in August, and had grown very worrying to the establishment by the end of August. You seem to bank on actual violent escalation as it being "a major issue". But that wasn't the perception at the time. Already at the Annapolis Convention, the trouble in Massachusetts was considered extremely worrying.



On October 22, 1786, James Warren wrote to John Adams: "We are now in a state of Anarchy and Confusion bordering on Civil War."

That sounds like it was taken pretty seriously by then already! And even viewed in that light by men who were usually known for their criticism of strong government.

By November 1786, even anti-federalist types sympathetic to the grievances of the insurrection were calling it treason. In that month, Massachusetts enacted a new Riot Act, and a resolution suspending habeas corpus -- so the authorities could legally keep people in jail without trial. New legislation was proposed later that month to ensure that "rebellion in a republic" should be punished by execution.

Things were clearly escalating, and panic was evidently spreading, long before you seem to believe. The fact that many of the anti-federalist types actually supported these kinds of oppressive measures shows how acute the panic was, and how the climate in the union had rapidly swung towards strong-government views. And why? Not because of tax disputes. Purely and exclusively because of the Rebellion.

Subsequently, Massachusetts passed legislation prohibiting all speech critical of the government. Again, not something you'd expect to see if people still saw all of this as just a minor brush-up, wouldn't you agree?

By November 28-30, the arrests of some rebel leaders (involving considerable violence) caused rebels in the West of the state to begin outright organising to overthrow of the state government by force of arms. They didn't keep silent about it, and this was known far and wide by the end of December.

In short: the key moments very much do line up. The states began selecting their delegates for the proposed convention during a time when the nation feared a forthcoming descent into outright civil war. The Congress called for this convention to actually be gathered with the clang of arms already heard in the back-ground. And the convention actually met in the shadow of this conflict.

It set the tone. It defined the outcome like no other factor.


(P.S. -- During the ratification debate, federalist newspapers called opponents of ratification "Shaysites", in reference to the Rebellion. This, I think, goes to show to what extent the Federalists defined their goal -- and to what extent the Constitution itself was understood -- as a response to Shays' Rebellion in particular.)

I still hold to my original position, currently doing more research on that as time permits, but one idea I had lately was an earlier end to the ARW via a decisive victory at the Battle of Monmouth Courthouse. The debts aren't as bad, so the economic conditions in New England aren't either as a result.
 

WolfBear

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:

Was this familiar chain of events inevitable as our history books so often imply? Obviously not. In fact, had two important events not occurred in 1786, all of American history would have been different. These two events could easily have been avoided; and, in fact, probably should have been avoided. What were these two events?​
  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, 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 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.​

Why exactly was New York's adoption of the impost rejected by Congress? I don't get it, to be honest.
 

Skallagrim

Well-known member
I still hold to my original position, currently doing more research on that as time permits
Research is always good. I'm pretty sure that it'll lead you to another conclusion than your current position, but then -- well, I can't begin to count the times research has done that to me.


one idea I had lately was an earlier end to the ARW via a decisive victory at the Battle of Monmouth Courthouse. The debts aren't as bad, so the economic conditions in New England aren't either as a result.
It's a cool premise, but it pretty much butterflies all the relevant points here. Without the bad debts, the disagreements over debt assumption won't be so bad, the economic conditions will be less oressing as you note, and state governments will be able to right their ships-of-state with greater facility.

I expect the outcome of this would be that the Articles get revised, possibly earlier, and probably with less fuss. Talk of a complete replacement or of a really drastic revision will not come up, I'd guess. More of a middle-of-the-road evolution kind of thing, than a tug-of-war over the desired future of the Union.
 

History Learner

Well-known member
Research is always good. I'm pretty sure that it'll lead you to another conclusion than your current position, but then -- well, I can't begin to count the times research has done that to me.

For one, I emailed Kaminski directly and am awaiting some more replies because I'm picking his thoughts. I'll share them verbatim if he gives me permission.

It's a cool premise, but it pretty much butterflies all the relevant points here. Without the bad debts, the disagreements over debt assumption won't be so bad, the economic conditions will be less oressing as you note, and state governments will be able to right their ships-of-state with greater facility.

I expect the outcome of this would be that the Articles get revised, possibly earlier, and probably with less fuss. Talk of a complete replacement or of a really drastic revision will not come up, I'd guess. More of a middle-of-the-road evolution kind of thing, than a tug-of-war over the desired future of the Union.

The bolded is entirely the goal I have in mind, basically.
 

History Learner

Well-known member
No, that's obviously not the only conclusion that can be drawn. Are you trying to troll here?

No and, to an extent, I think we may have been talking past each other originally. Having been reading more upon the issue the past year and conversing with Kaminski more, I feel better qualified to respond now.

The Articles of Confederation had run into issues from the very moment they were drawn up, because the Congressional power to actually compel the states to do anything was nearly non-existent. There was no executive, and Congress couldn't actually force the states to provide the funding required for most mandated tasks.

This, however, must be rejected. Not only did Congress force the issue with State territorial claims in the 1780s via the Northwest Ordinance of 1787 (and earlier measures), it also raised the Legion of the United States and was able to collect requisitions under the terms of the 1783 Population Amendment. That last one is notable, as it had only been approved by 11 of the States but was still being enforced anyway. So, rather than having "non-existent" power, the Confederation quite clearly had a fair amount.

To expand upon the funding issue, Russell Sobel noted years ago that the aggregated collection rate under the Articles was 50% of requested funds. This sounds low until you realize this was a better rate of collections than under the Constitution's direct taxation methods, which were also barely utilized anyway until the American Civil War:

Second, the first federal direct tax under the new U.S. Constitution was​
levied in July 1798 on population, house values, and land. As of 1801 only​
half of the total amount due had been collected. The collection rate was in​
fact so poor that President Jefferson did away with all direct taxes on citizens​
in 1802. They were reimposed for a few years during the War of 1812, but​
collection rates never exceeded 50% and the tax was repealed in 1817. The​
federal government did not again levy direct taxes on citizens until the Civil​
War, when the technology of collecting taxes had significantly progressed​
and the Commission of Internal Revenue was established to administer the​
collection of taxation. If one were to combine the total revenues from these​
first two attempts at direct federal taxes on citizens, the federal government’s​
collection rate on its own power of taxation was less than the collection rate​
from states under the Articles. Thus, had the federal government had the​
power of direct taxation under the Articles, and had they levied the same​
amount of taxes as they did requisitions, they would have probably collected​
less revenue.​

At a minimum, then, we can say that Congress would've been no worse off than the Constitution-era United States for most of the 19th Century. Further, in a death blow to the argument that Congress has no power over the States:

Studenski and Krooss (1963) mention that both during colonial times and under the Articles, state-level taxes were only paid by the patriotic and conscientious, with widespread evasion and inefficiency. States collected significantly less than 50% of the taxes that they levied on their own citizens. Thus, the collection rate experienced by the federal government from state requisitions was higher than the collection rate the states were experiencing on their own taxes.​

Finally, it is worth noting that the Articles-era United States didn't have an executive in the same way Parliamentary systems don't. As Kaminski notes, the creation of executive departments headed by non-members of Congress are an example of this in practice, fulfilling a uniquely American version of parliamentary system but without the figurehead Monarch of the British ways. Thus, it had a defacto Executive branch.

There were various other issues, too. Complaints about them had started early on: Washington called for alterations during the War! But the will to actually enact change had to be gradually gathered up. Primarily because most states were, in fact, rather attached to their independent power. But by 1786, it was already quite clear that some kind of reform would be needed, and the overal majority to make such a thing happen was also already there. The question was about the nature and extent of any alteration.

This is where I believe we were talking past each other, as I took your arguments at the time as to mean you saw the Constitution is inevitable or that any Reformist movement to the Articles leading immediately to that track in all but name. The entire point of Kaminski's article is that the Articles of Confederation was on course to be reformed, but not replaced in its entirety, until a "perfect storm" of events happened in 1786 to force things along this path. He cites as the basis of his case the Amendments put forth before Congress in August of 1786, which would've instituted serious reforms and thus eliminated the need for a Convention, as said Amendments could have been passed within Congress until the Impost Issue and Jay-Gardoqui Affair derailed things.

In conversing with Kaminski directly, he in particular directed my attention to both the proposed 14th and 18th Articles. The former would have allowed Congress to pass commercial measures by a vote of nine states, while the latter would have allowed Congress to pass measures in general with the adoption of eleven states. Notably, this would've cured a key defect of the Articles and avoided the issues seen with the failed adoption of the Impost in 1786 with New York, as it would've come into effect far sooner via the other States ratifying it.

Then Shays' Rebellion broke out, and that is what quickly changed the pre-existing movement to revise the Articles into a movement to enact a far more radical change.

Notably, you will see that the introduction date of the above proposed articles is well before the outbreak of Shays Rebellion.

What reform? The idea to revise the Articles had been building for years, as I have explained. That certainly didn't come out of the ether, and this far precedes the issues Kaminski cites. The swerve towards full replacement, on the other hand, we may lay squarely at the feet of Shays' Rebellion.

In the general sense that reform was coming is not in dispute, as that is the core of Kaminski's articles, but the contention that Shays Rebellion was the decisive factor must be discarded given the Reform Articles were already presented to Congress and derailed before the outbreak of the rebellion. It was because of the political impasse created by the various exploding issues of 1786, all of which pre-dated the Rebellion, that was the core of this.

If you're talking about the notion of revising the Articles: it's crazy to make it an either-or between the two causes you cite, because criticism of th Articles clearly precedes both of those. Surely you cannot think that the notion of revising the Articles of Confederation somehow hadn't existed earlier? Primarily, the fact that Congress could not levy taxes, and could only make requisitions upon the states, was cited as a fundamental problem from 1777 onward.

Again, the issue was not and is not that reform was coming, but rather the insistence upon the Rebellion as the cause for the Constitution rather than an addendum to the flow of events that lead to it. My argument originally and still now is that of Kaminski's, in that avoiding or addressing the more proximate issues before Congress before Shays took up arms would've allowed the Reform Articles to pass and thus solved the political issues afoot without need for the Constitution or even the Philadelphia Convention.

For starters, the Annapolis Convention never issued a "call". It sent a convention report to Congress and the legislatures of the various states. This report contained a request that another convention be held to discuss amending the Articles of Confederation. When was this? September 14th. Shays' Rebellion has broken out in August, and had grown very worrying to the establishment by the end of August. You seem to bank on actual violent escalation as it being "a major issue". But that wasn't the perception at the time. Already at the Annapolis Convention, the trouble in Massachusetts was considered extremely worrying.

This is quite frankly semantics, because what else would you call a report sent to Congress and the State Legislatures urging for a Convention if not a "Call" for a Convention? Likewise, this must be viewed as very contradictory in light of your previous statements of saying that Congress had no influence upon the States and the latter were jealous of their power; if so, why did any bother to show up if there was not a call, but merely a report containing a mere "request"?

Likewise, your characterization of the Rebellion is unfounded because the formal start of the Rebellion isn't even recognized today until August 29th; Governor Bowdoin's first proclamation on the issue isn't until September 2nd and Pro-Government militias would not be raised until the end of September, when still yet violence had yet to occur.

On October 22, 1786, James Warren wrote to John Adams: "We are now in a state of Anarchy and Confusion bordering on Civil War." That sounds like it was taken pretty seriously by then already! And even viewed in that light by men who were usually known for their criticism of strong government.

This letter is written over a month since the end of the Annapolis Convention and after the militia had been repeatedly called up to protect Court proceedings. That there is a lack of such correspondence in August and early September, thus in time to have an effect upon the Convention, should be notable.

By November 1786, even anti-federalist types sympathetic to the grievances of the insurrection were calling it treason. In that month, Massachusetts enacted a new Riot Act, and a resolution suspending habeas corpus -- so the authorities could legally keep people in jail without trial. New legislation was proposed later that month to ensure that "rebellion in a republic" should be punished by execution.

Things were clearly escalating, and panic was evidently spreading, long before you seem to believe. The fact that many of the anti-federalist types actually supported these kinds of oppressive measures shows how acute the panic was, and how the climate in the union had rapidly swung towards strong-government views. And why? Not because of tax disputes. Purely and exclusively because of the Rebellion.

Subsequently, Massachusetts passed legislation prohibiting all speech critical of the government. Again, not something you'd expect to see if people still saw all of this as just a minor brush-up, wouldn't you agree?

By November 28-30, the arrests of some rebel leaders (involving considerable violence) caused rebels in the West of the state to begin outright organising to overthrow of the state government by force of arms. They didn't keep silent about it, and this was known far and wide by the end of December.

In short: the key moments very much do line up. The states began selecting their delegates for the proposed convention during a time when the nation feared a forthcoming descent into outright civil war. The Congress called for this convention to actually be gathered with the clang of arms already heard in the back-ground. And the convention actually met in the shadow of this conflict.

The key moments do not line up and I think you misunderstand my argument entirely, given I noted in past posts the Annapolis Convention occurred well before Shays Rebellion became a national level issue. This is best exemplified by the Convention being finished months before any of the events you cite here, which is entirely consistent with what I've argued.

It set the tone. It defined the outcome like no other factor.

That it was an addendum, that served as a capstone to events in the Summer rather than the defining event that pushed us on the path to the Constitution, is my stance and I think the evidence backs it up. The event dates do not line up nor do the correspondence of the key players.

(P.S. -- During the ratification debate, federalist newspapers called opponents of ratification "Shaysites", in reference to the Rebellion. This, I think, goes to show to what extent the Federalists defined their goal -- and to what extent the Constitution itself was understood -- as a response to Shays' Rebellion in particular.)

Equally it must be noted the Rebellion in Massachusetts was suppressed with the full support and aid of George Clinton, the Governor of New York and a future leading Anti-Federalist. Patrick Henry, another leading Anti-Federalist, would use the successful suppression of the rebellion as evidence of the strength of the Articles during the Virginia ratifying convention. Meanwhile back in Massachusetts, Governor Bowdoin would be rapidly thrown out of office and replaced by John Hancock, who would pardon all involved in the Rebellion. Massachusetts would then go on to barely ratify the Constitution; if the heart of the violence could come so close to rejecting the Constitution, then to emphasize its central importance is to drastically overstate the Federalist position.
 
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