Are The Articles of Confederation Still In Force?

Reply Tue 14 Feb, 2017 08:19 pm
Articles Of Confederation

The accepted idea is the Articles of Confederation officially ended and were replaced by the present Constitution. However, the present Constitution started out in a Convention called to amend the Articles of Confederation. They amended the Articles so much that it resembled a new Constitution, and was treated as such. The government elected under the Articles came to an end, resolving to implement the new Constitution.

However, it seems to me that the Constitution might well have legal power unless it conflicts with the Constitution of 1789, that is, what we call the Constitution really is just a set of amendments to the Articles. If looked upon that way, which was the purpose of the Philadelphia Convention, anything the Articles of Confederation said that was not directly contradicted by the Constitution would still be in force.

The major importance of this would be the fact that the Articles of Confederation said the US was a Perpetual Union and that any state wishing to secede must first get the consent of the legislatures of every other state. The Constitution of 1789 did not deal directly with the requirements for any state to secede.

In my opinion, there are at least a couple of places in the Constitution of 1789 which essentially make secession impossible, and that's not even counting the idea that a "more perfect Union" than a "Perpetual Union" must itself be perpetual, on the theory that if the old Union was Perpetual and the new Union fell apart, it certainly could not be "more perfect" than the old Union. I mean besides that reasoning, there appear to be a couple of places.

Nonetheless, Article XIII of the Articles of Confederation does forbid secession directly, except for the passage of such secession from the legislatures of every state.

Could the Articles of Confederation, in the places that it is not contradicted by the Constitution of 1789, be considered still in force? I think a good case could be made.

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Reply Wed 15 Feb, 2017 06:23 am
The Articles were replaced by q Constitution which was developed as a result of a Constitutional Convention agreed to by the states. The problems with the Articles were pretty much in conflict ith what came later.
1) Under the Articles there was only a one house legislature and NO executive so that there was no real separation of powers.
2) The central government under the Articles was too weak since almost all of the power rested with the separate states.
3) Congress, , did not have the power to tax so they could never put their finances in order.
4) In order to change or amend the Articles, unanimous approval of the states was required which essentially meant that changes to the Articles were impossible.
5) For any major laws to pass they had to be approved by 9 / 13 states which proved difficult to do so that even the normal business of running a government was difficult.
6) Congress did not have the power to regulate commerce which caused competition between states as well as diplomatic issues

This from a writer for AMerican Scholar bqck in the 1990's
Reply Wed 15 Feb, 2017 06:48 am
QAlso, no matter what th Constitution does or does not imply, th SUpreme Court (Im certain) has a decision(s) regarding th Constitutionality of secession.

Reply Wed 15 Feb, 2017 06:53 am
In Texas v White, it states that the Articles of Confederation stqtee the Union ws Pwrpetual nd the Contitution sought a "more perfect Union" So I guess, by qording we derive illegality of secession from the ARticles through the Constitution via the concept of "original jurisdiiction"
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Reply Wed 15 Feb, 2017 12:15 pm
Yes, Texas v White, 1869. Which was after the Civil War ended.

I'm in a discussion about whether the South had the right to secede, and I'm taking the position that among other places, the Tenth Amendment made secession impossible without either a Supreme Court decision allowing the secession of a state or states, (unlikely since Texas v White was only 4 years after the Civil War), or a constitutional amendment allowing the states to leave, passed by 3/4 of the states.

If I relied upon Texas v White, the other side could say that the Civil War had just been fought at great cost, and the Texas v White decision was just a convenience to cover up an accomplished fact, like the US paying for Texas after we grabbed it from the Mexicans. They could argue that after all the bloodshed was over, the Supreme Court, regardless of the legal merits, simply couldn't say, "Umm fellows, you know those states that fought to secede back then and touched off that awful bloody war? Well, they were right-they did have that right. So after all those battles and loss of life, the Southern states can go their own way after all".

FWIW, my argument is that the Tenth Amendment says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This Amendment plainly says that the Constitution first states the rights the Union has, and after that the states have the leftover rights. The Supreme Court adjudicates conflicts. So if the Supreme Court, (or a lower Federal Court that is not overturned by the Supreme Court), says that something is a right of the Union, any state law which conflicts with it is invalid.

So, Article One, Section 8 says:
1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13: To provide and maintain a Navy;

Article 10, Section 10 says
1: No State shall enter into any Treaty, Alliance, or Confederation... coin Money.
3: 3: No State shall, without the Consent of Congress...enter into any Agreement or Compact with another State, or with a foreign Power..

The southern states did all of these things except the one in red, and they tried unsuccessfully to do that one. Indeed, any state which actually was going to secede would have to do all or most of these things. But the southern states signed on to the US Constitution that only Congress can do all of these things, NOT the government of the state itself. In so doing, by agreeing to give to Congress all of the power to do these things for the individual states, they made secession impossible for a single state.

Any state that wanted to secede would have to perform the government powers reserved to the Federal government, thereby putting the state in violation of the Tenth Amendment,which prevents state powers from interfering with Federal power.

That's what I'm arguing. What do you think?

Reply Wed 15 Feb, 2017 12:46 pm
My quote:
...like the US paying for Texas after we grabbed it from the Mexicans.

Oops. The US did not pay Mexico for Texas. In the Mexican Cession of 1848, the US paid Mexico for parts of California and the Southwest outside of Texas.
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Reply Wed 15 Feb, 2017 01:00 pm
Southern hotheads started that war because they were spoiling for a fight, had been for quite some time, and had deluded themselves into the belief that slavery was threatened.

The constitutional grounds for the reaction of the United States is very clear, and does not need any reference to a shadowy "right to secede." Article One, Section Ten reads, in its entirety:

1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

It was only later, when it was politically convenient, that the United States inferentially recognized secession, by putting conditions on the re-entry of states to the Union.
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Reply Wed 15 Feb, 2017 02:25 pm
You sy that youre in a discussion re: whether the SOuth had the "right" to secede . (You didnt say tht you re looking backward, I assumed you qere tlking re" NOW). The USSC had decided the "right" issue and reached a majority

Code: In accepting original jurisdiction, the court ruled that, legally speaking, Texas had remained a United States state ever since it first joined the Union, despite its joining the Confederate States of America and its being under military rule at the time of the decision in the case. In deciding the merits of the bond issue, the court further held that the Constitution did not permit states to unilaterally secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were "absolutely null".[2]

This demonstrates that history is written by the winners
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