Different US Constitutions

[Paul Spring]

There were many compromises and proposals in the making of the United States Constitution. What if certain key features had been different? Here's some possibilities that I don't think receive much attention -

- What if the Constitutional Convention stuck to their original role of trying to strengthen and reform the Articles of Confederation rather than starting from scratch with a new Constitution?

- What if the President (or whatever the executive was called) was elected by Congress, making the office more like a Prime Minister, but one with a specific term of years?

- What if the President was chosen by the governors of the states?

- What if the executive consisted of a three-man committee rather than a single President, which is what Madison's original plan called for?

- What if slaves were counted as more or less than 3/5 of a person for the purpose of allocating congressional representation for each state?

- What if the President was not named as Commander in Chief of the armed forces, but instead that role would be held by a senior military officer appointed and supervised by Congress?

- What if the Constitution had explicitly given each state the right to secede from the federal union formed by the Constitution, and set out the specific procedures for doing so?

- What if the Supreme Court's role had been more explicitly defined?

- What if the Constitution did not provide for a Supreme Court?

- What if the Vice President was given more to do?

- What if there was no Vice President?

- What if there were explicit provisions requiring all states to keep their militia trained to a high standard, supervised by regular army officers?

- What if Congress was allowed to end the slave trade before the beginning of 1808?

- What if the first 10 Amendments to the Constitution, later known as the "Bill of Rights", had never been added? (Some supporters of the Constitution did not think that they were necessary, but many members of the state ratifying conventions agreed to vote for ratifying the Constitution only if these Amendments were added as soon as possible.)

 

[David S Poepoe]

There were many compromises and proposals in the making of the United States Constitution. What if certain key features had been different? Here's some possibilities that I don't think receive much attention -

- What if the Constitutional Convention stuck to their original role of trying to strengthen and reform the Articles of Confederation rather than starting from scratch with a new Constitution?

- What if the Constitution had explicitly given each state the right to secede from the federal union formed by the Constitution, and set out the specific procedures for doing so?

- What if the Supreme Court's role had been more explicitly defined?

1. I've recently come to the opinion that things may have not been that bad under the Articles of Confederation. Behind the talks in Philadelphia there is the disagreement between 'loose confederation' and 'centralized government' which reach a temporary state of balance thru compromise.

2. Well, the Constitution does explicitly give each state the right to secede since that power and authority is not excluded to them by the Congress. It says so in the Tenth Amendment:

'The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserve to the States respectively, or to the people.'

Secession was a recognized method of resolving differences and many states, like Virginia, stated that they retained their right of withdrawl when ratifiying the Constitution.

3. I guess one may see far fewer activist judges. Legislating will be done by the Congress as it should be.

 

[Paul Spring]

Bumpity bump bump -

Any other ideas?

 

[Count Dearborn]

What about an Swiss Like Executive Council?

 

[Boto von Ageduch]

My 2 cts. to your (presumably) easiest question:

- What if there was no Vice President?

Not much difference. IIRC the duty of the VP was only invented to satisfy the supporters of the second-strongest candidate in a presidential election.
Perhaps I am missing something, but I do not know of any case when the VP was a complete political antipode of the President's. But if such thing has occurred then this would establish the only fulcrum to track consequences.

 

[Derek Jackson]

Perhaps I am missing something, but I do not know of any case when the VP was a complete political antipode of the President's. But if such thing has occurred then this would establish the only fulcrum to track consequences.

Adams and Jefferson effectively ran against each other in both 1796 and 1800.

Burr also had visible distance from Jefferson.


Imaginably Garner might have more sharply opposed FDR, If Lincoln had lived and had realized that Republican interests and morality came together on the issue of Political rights for former slaves Andrew Johnson mighth have been a bit upset

 

[Boto von Ageduch]

Sorry, I think I should have been a bit more specific:

... when the VP was a complete political antipode of the President's and the VP accomplish political projects against the President's (implicit) resistance which otherwise would not have been implemented.


Anything for Jefferson and Burr?

 

[Condottiero]

I read recently about the "Fundamental Orders". They were some sort of constitution that the Commonwealth of Connectituc (Windsor, Hartford and Wetherfield) gave themselves in 1639. Later on it would have a big impact in the 1776 Constitution. It seems that the ideas inspiring these "Fundamental Orders", defended by Thomas Hooker, could be traced back to the "Defensio Fidei Catholicae" (1613) of the father F. Suarez and of other thinkers of the school of the Salamanca. His ideas were quite radical for those days and the book was burned in England and in France as it defended that it was not an evil act to kill an evil ruler.

What if Hooker had not been exposed to the liberal ideas of Suarez and has been kept in the absolutism that ruled in France and England?

 

[freivolk]

2. Well, the Constitution does explicitly give each state the right to secede since that power and authority is not excluded to them by the Congress. It says so in the Tenth Amendment:

'The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserve to the States respectively, or to the people.'

Secession was a recognized method of resolving differences and many states, like Virginia, stated that they retained their right of withdrawl when ratifiying the Constitution.

.

I wouldn´t call that explicit. Definitly it exist no consensus, that you have to understand Tenth Amendment in this way. In the end I would say, this is at best a minority position.
If Virgina really statted this, then its in my eyes actually a proof that they see that a right of secession didn´t existed in the Constitution. I mean, why they should have stated it, when they believed it was a explicit right in the constitution. Naturally a onesided declaration of Virgina didn´t bound the USA in any legal way.

 

[seancdaug]

2. Well, the Constitution does explicitly give each state the right to secede since that power and authority is not excluded to them by the Congress.

I don't think you understand the meaning of the word "explicit." Something that is directly stated is explicit. Free assembly is explicit, as is the right to bear arms, and the right to be free of cruel and unusual punishment. Secession is, at best, implicit under the premise that because the Constitution or the Bill of Rights does not explicitly prohibit it, it is implicitly allowed by the tenth amendment.

And even that's not a given, since it depends on your interpretation of the Constitution, and the US Government's powers to regulate the nation. It can be argued, for example, that secession is forbidden by virtue of the US Government's Constitution-granted powers to provide for the common defense, or even to regulate interstate commerce. I'm not going to make that argument here, because it's beside the point, which is simply that there is no explicit right of secession in the Constitution, and that there's significant historical and political debate regarding whether or not there's even an implicit right of secession.

3. I guess one may see far fewer activist judges. Legislating will be done by the Congress as it should be.

Without getting too heavily into that modern-day political canard, the lack of constitutional review is going to be a major problem for the USA, assuming, of course, that such powers aren't actually defined in this ATL Constitution. It's going to effectively force Congress into a quasi-judicial role, if only because the courts are going to have a hard time resolving interpretative questions.

If one state interprets a federal law one way, but another state interprets it differently, who arbitrates? And if the interpretation question involves a Constitutional issue? In short, judicial review is one of the most important safety valves in our form of government to prevent every little interstate argument from erupting into a secession threat. If the Supreme Court is explicitly forbidden from making that sort of judgment, than the practically inescapable result is that the union itself falls apart, either with each state going its own way, or via the replacement of a much more centralized and autocratic form of government. More likely the former than the latter, actually.

 

[wkwillis]

If indentured servitude was a states right matter like slavery, then the North would have expanded much faster and the slaves would not have been worth as much to the South. We would have had a railroad to California through a free state Texas by 1861 and slavery would have been resolved by just buying out the slave owners at 1776 prices instead of the far higher 1861 prices.
Whether avoiding the Civil War was a good idea or a bad idea I leave up to you. The civil war gave us a centralised government and forced democratic reforms (for White people) on Southern states like South Carolina, but killed many people and caused much economic destruction.

 

[David S Poepoe]

The civil war gave us a centralised government and forced democratic reforms (for White people) on Southern states like South Carolina, but killed many people and caused much economic destruction.

What reforms are you talking about?

 

[DuQuense]

- What if slaves were counted as more or less than 3/5 of a person for the purpose of allocating congressional representation for each state?

If the south wins and Slaves are counted as whole people this gives the southern states more power and entends the time before the north gets more representives than the south, delaying the ACW
If the Norths position that Slaves are not citizens and shouldn't be counted, the same way Indians arn't counted, the north gets to outvote the south sooner, leading to a earlier ACW.

 

[Hendryk]

Would it have been possible to defuse the issue of slavery with a kind of grandfather clause? Namely, all those who have slaves may keep them, but no more may be imported and all children born of slave parents will be considered free.

Since slavery was, AFAIK, considered a dying institution at the time, could this have been acceptable to slaveholding states?

 

[Boto von Ageduch]

As to the question for no Supreme Court:
I do not really understand what would be the alternative.


Btw, afaik the right of the Supreme Court to interprete the constitution is not mentioned in the constitution itself, but was claimed by the SC in the 1810s or so.

 

[seancdaug]

Would it have been possible to defuse the issue of slavery with a kind of grandfather clause? Namely, all those who have slaves may keep them, but no more may be imported and all children born of slave parents will be considered free.

It might have been offered. Whether or not the southern states would have gone for it, though, is an entirely different question. Personally, I doubt it. They were willing to go to war to preserve the institution indefinitely: they clearly weren't going to settle for half measures.

Since slavery was, AFAIK, considered a dying institution at the time, could this have been acceptable to slaveholding states?

That slavery was a dying institution is debatable. I've heard the arguments and they typically sound like pure revisionism to me. Slavery was considerable viable enough at the time that close to half the country was willing to wage war to preserve it, and the claim that it would have been economically unfeasible seems to confuse cause and effect by ignoring the fact that the southern slave-based agricultural economy was actually fairly lucrative up until the war. The southern economy was in shambles thereafter, but that's not all that unusual for the losing side of a war.

But for argument's sake, let's say that we can now look back and see that slavery was in decline circa 1860. That's not really as relevant as whether or not people in 1860 thought that slavery was in decline. They clearly did not. The slaveholding states revolted in large part because they felt that slavery was still lucrative. If it hadn't been, they wouldn't have been willing to secede on the fear that a Republican president would abolish it.

 

[Philip]

Namely, all those who have slaves may keep them, but no more may be imported and all children born of slave parents will be considered free.

Who is going to raise the children? Will the owners of their parents be responsible?

Since slavery was, AFAIK, considered a dying institution at the time, could this have been acceptable to slaveholding states?

Dying is not the correct word. A temporary necessity would be more accurate.

 

[seancdaug]

As to the question for no Supreme Court:
I do not really understand what would be the alternative.

I don't think that was the question. Unless I really misread it. The question was what would have been the result had the precise powers of the court been more explicitly defined in the Constitution.

Btw, afaik the right of the Supreme Court to interprete the constitution is not mentioned in the constitution itself, but was claimed by the SC in the 1810s or so.

1803, actually, but otherwise yes. It wasn't exactly invented out of whole cloth, however, and the question was all but bount to come up at some point. What happens when an Act of Congress is seen to conflict with the Constitution? And, more importantly, how does that conflict get resolved? If it doesn't, than the Constitution is hardly worth the paper it was written on. Expecting the Supreme Court to resolve the issue is somewhat logical, and there was some precedent for it in English law.

In my opinion, the only way to prevent broadly similar responsibilities from falling upon the SCOTUS in some fashion is to have it explicitly forbidden in the Constitution. And my general feeling is that, if it is explicitly forbidden and some other check and balance not provide in its place, it will eventually lead to a potentially catastrophic constitutional crisis.

 

[Boto von Ageduch]

In my opinion, the only way to prevent broadly similar responsibilities from falling upon the SCOTUS in some fashion is to have it explicitly forbidden in the Constitution. And my general feeling is that, if it is explicitly forbidden and some other check and balance not provide in its place, it will eventually lead to a potentially catastrophic constitutional crisis.

I agree. It seems quite logical that enforceability of the constitution was not taken care of at first, but had to be handled somehow. For the same reason, the assumption of explicit barring interpretation of the constitution would be highly implausible. And if some error would have caused that, I think even the US would have shouldered the burden of actually change the constitution once more.

Btw how can you prevent the SC from interpreting the constitution if the constitution is not enforecable ?

 

[Boto von Ageduch]

Next question: WI the Constitution did not provide for a Supreme Court?

Not necessarily anything else than in OTL:
The Cst does not say a lot about federal courts. Hence not providing for it would certainly not mean that it would not exist.

Otherwise, the Cst might have stated thattheFederal Courts of Appeals is the top end. This would be extremely weird for two reasons: It would be completely unusual, and there would be the risk that the South judges completels differently from the North.
However, this could really change a lot ...