Constitution not ratified by all states.

If the Constitution wasn't ratified by all 13 states, but by enough states to allow it to go into effect, some form of reconciliation between the two sets of rules would need to be written. This is my attempt at a basis for a timeline--not sure if I'll do the timeline.

Essentially, the New England states don't ratify the constitution--perhaps there's something a bit different that makes them decide not to--and "Articles of Combined Governance" are drawn up. (In this timeline, the New England states still have their western land claims.)

Does this look like a reasonable set of rules for the combined governing of one nation with two systems of government? I'm not saying that it will last...but is this a reasonable start? And does it have a hope of lasting?

Clearly, the Confederation States will need to revise their articles--but much less drastically than the Constitution of the United States does.

Articles of Governance of the United States of America under the combined Constitution of the United States and Articles of Confederation and Perpetual Union.

Preamble:

We the people of the United Sates of America, in order to retain the unity of the country despite the differences of government under the Constitution of the United States and the Articles of Confederation and Perpetual Union, provide for the common defense, promote the general welfare, and secure the blessings of liberty, do ordain and establish these Articles of Combined Governance.

Article One:


The States of New York, New Jersey, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, North Carolina, and South Carolina withdraw from the Articles of Confederation and Perpetual Union, with the consent of the States of New Hampshire, Rhode Island, Connecticut, and Massachusetts. Should the States of New Hampshire, Rhode Island, and Massachusetts ratify the Constitution, separately or jointly, by the first day of July, 1795, such states’ withdrawal from the Confederation shall require no further approval by the Congress of the Confederation. (Note 1)

Within the states that have ratified the Constitution of the United States, known as the Constitution Stares, that document shall be the supreme law of the land. Within states that have not so ratified, known as Confederation States, the Articles of Confederation and Perpetual Union shall be the supreme law of the land.

Article Two (Legislature)


The Confederation States shall each allocate two senators, to sit in the United States Senate. Confederation Senators may not vote, but have debate privileges equal to the privileges of other senators.

Each of the Confederation States shall have one observer in the House of Representatives, who is permitted debate privileges equal to other members of the House of Representatives, but may not vote.

Each of the Constitution States shall be entitled to send a delegation to the Congress of the Confederation. Such delegation shall have privileges of debate equal to the delegation of one of the Confederation states, but may not vote.

Any law affecting both governments or the territories and people thereof shall be enacted by both governments before it shall take effect. No such law my impose obligations on a state that would not be permitted under the form of government which it subscribes to.

Article Three (Judiciary)

Each government shall establish such court systems as it sees fit, such courts having no jurisdiction within states not subject to their own government system. (Note 2)

Article Four (Military)

The President of the Constitution States shall serve as Commander in Chief of the United States Army. The Commander in Chief of the United States Navy shall be designated by the Confederation States. Both appointments may be changed by joint resolution of the legislatures of both governments. (Note 3)

The Confederation States may not allocate funding for the army for any duration longer than the Constitution States may, however, appropriations for a duration of up to two years shall always be permissible. (Note 4)

Article Five (Interstate Commerce)

No state my collect tariffs on goods which are not destined for said state. Neither national government shall impose tariffs on good from the other national government’s states and territories greater than the tariffs imposed on like goods from abroad. (Note 5)


Article Six: Territories of the United States.

Any possession of the United States, not qualifying as a state, nor a possession of a state, shall be governed under the Constitution of the United States, unless provisions in law or treaty should be made otherwise. Should a territory become a state, it shall be incorporated into the Constitution States, unless the Constitution States do not accept it and the Confederation States do, unless provided otherwise by treaty or law passed by both governments. Should a possession of a state become a state in its own right, it shall be incorporated into the government of the original owning state.

Should a territory petition for admission solely into the Confederation States, and decline to seek admission into the Constitution States, it requires the consent of the Senate of the Constitution States. (Note 6)

Article 7 Expansion of the nation:

Any possession of the United States, not qualifying as a state, shall be governed under the Constitution of the United States, unless provisions in law or treaty should be made otherwise. Should a territory become a state, it shall have the right to choose which government it should be incorporated into, provided both governments should be willing to incorporate it, unless provided otherwise by law or treaty.

Any law governing the entire nation must be approved by both Congresses, and must not infringe on the rights each state has under its governing charter.


Notes:
1. The Articles of Confederation required unanimous agreement between the states to be changed. This makes the Constitution legal, and allows any of the other non-ratifying states to come under the constitution with no further agreement needed under the Articles of Confederation.
2. Both sets of laws require extradition—which may result in severe problems down the road when fugitive slave laws become a factor.
3. This allows both parties a fair amount of control of the military, and, with New England having a seafaring tradition, the navy was a logical choice for them. The provision allowing for other arrangements to me made in time of need may or may not be relevant.
4. The Constitutional prohibition against long term funding of the army was intended to keep a check on its power. This provision is intended to prevent the military from working around it.
5. This allows free passage of goods through any state, hopefully encouraging trade, and is intended to reduce the possibility of economic struggle, while not infringing on the rights of confederation states to collect tariffs on out of state goods.
6. This is a major provision, almost guaranteeing that most new states will be part of the Constitution government unless agreed otherwise. In exchange, New Hampshire’s claims to Vermont are recognized, and it shortly thereafter becomes a Confederation State, and Massachusetts and Connecticut keep their Western lands, except the part that became part of New York.


I don’t think this would work long term, but can see it as a compromise written to keep the country together. Any ideas for changes that might get incorporated into these articles, either right away or down the road, would be much appreciated.

I do see the Confederation States modifying the articles in several ways, giving more power to the Confederation Government in Boston—probably eliminating interstate tariffs and giving the central government some (carefully delineated) other powers.
 
This is, as far as I can tell, a pretty original take on the whole "(somewhat) unsuccessful constititional convention" POD. Usually, people debate what a either a weakened Constitution or a strengthened set of Articles could look like. You instead maintain both systems, and place them under a set of "umbrella articles", if you will. Awesome. I love it. :D

I really hope people will pick this thread up; it could use some debate. For starters, I think the Confederation States will maintain their system, instead of ratifying the Constitution. Since the new system provides them with the means to do so, they'll not be likeky to give up their autonomy. (Nor should they; they've really got a good thing going now.)

Interestingly, the United States in your proposal are now a Federation (the Constitution States) and a Confederation (the Confederation States), united in another Confederation (Articles of Combined Governance).

If a struggle over slavery still erupts in the future, I'd expect the slave states to demand that they be allowed to form a separate confederation within the system of the Articles of Combined Governance (instead of seceding altogether), to protect the "domestic institutions of their states". They'll probably get it, too.
 
When Rhode Island was waiting before ratifying I think there was plans by the other states to send them an ambassador.
 
If the Constitution wasn't ratified by all 13 states, but by enough states to allow it to go into effect, some form of reconciliation between the two sets of rules would need to be written. This is my attempt at a basis for a timeline--not sure if I'll do the timeline.

Essentially, the New England states don't ratify the constitution--perhaps there's something a bit different that makes them decide not to--and "Articles of Combined Governance" are drawn up. (In this timeline, the New England states still have their western land claims.)

Does this look like a reasonable set of rules for the combined governing of one nation with two systems of government? I'm not saying that it will last...but is this a reasonable start? And does it have a hope of lasting?


If the Constitution is ratified by more than 9 but less than 13 states, it is still established as the "supreme law" for those that ratified it; it will go into effect among the states that ratified it. In OTL the new frame of government was put into operation w/o North Carolina and Rhode Island. In OTL Virginia and New York ratified grudgingly after being assured that modifications could be made to the document ASAP. All 4 of those states will eventually sign on to the new arrangement. Why? Because the Confederation had fallen apart; the perpetual union was broken. Change had been needed for awhile and it was now upon them. If ratified by 9 of 13 states the change is going to happen, regardless of who's "not in". Carrots and sticks will be used to persuade the dissenters to join in; but if they decide not to, they'll just have to go their own way. The one thing they do not have the option of doing is saying, "we'll just carry on under the AoC". The articles are dead!

Now, there was also significant opposition to the Constitution in Pennsylvania and Massachusetts. If the ratification effort in those states stalls long enough, then perhaps New Hampshire might hesitate as well (NY, VA, NC & RI would certainly be more intransigent than they were in OTL). That leaves six "yes": Delaware, New Jersey, Georgia, Connecticut, Maryland, and South Carolina. These states will ratify the Constitution regardless. However, that's not enough to establish the new form of government. The Condereral(my TM word) Congress will carry on, doing all that is within its power to governing the confederation well.

Eventually, presuming that fewer than 9 states ratify the Constitution, the Congress will call for another convention to be held to discuss and develop proposals to amend the AoC. This also presumes that the confederation stays together during this lengthened time of acute uncertainty and heightened anxiety. BTW, while the "Articles of Combined Governance" concept you laid out is intriguing and original, its just not going to happen, let alone ever be seriously proposed. Sorry. Also, the land claims issue in the region north of the Ohio has already been resolved by 1787 (Maryland insisted on it as a condition for ratifying the AoC) and the Northwest Territory has been formed. Additionally, your solution to the Vermont issue would take a lot of handwavium to bring about. The New Hampshire land grants were invalidated in 1770 and NY took jurisdictional control soon there after, but lost it a few years later. By the 1780s NH no longer has a claim on VT land and NY no longer has an enforceable one. Vermont isn't going to be given to anyone (not w/o bloodshed anyways). It either becomes a U.S. state or remains a sovereign nation.(https://en.wikipedia.org/wiki/New_Hampshire_Grants#Drive_for_statehood)

That bit of cold water aside, you don't need to change anything in the 1787 Constitution to change the Constitution's fate. You don't even need to change the Congress' initial response either. Take a look at the anti-federalist arguments made beginning in October '87. Look at ways to alter the course of the ratification debates in Pennsylvania & Massachusetts; there's your POD. Here's a good place to start your research: http://teachingamericanhistory.org/ratification/stageone/#confederationcongress
 
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When Rhode Island was waiting before ratifying I think there was plans by the other states to send them an ambassador.

More like:
As Rhode Island continued to hold out against the Constitution, refusing to ratify it even after all other states had, serious discussions were held about how Rhode Island would be treated if it actually rejected the new Union (recognition of independence & exchange of ambassadors were among the issues raised). Additionly, threats also were made about slapping tariffs on goods entering the US from RI.
 
We had a discussion in soc.history.what-if of what happens if only nine of thirteen states ratified. Here was my post:


Before asking what would have happened, maybe we should review what the
First Congress *actually did* about the two states that still hadn't
ratified by the time the Congress met--North Carolina and Rhode Island.
This is discussed in David P. Currie, *The Constitution in Congress: The
Federalist Period 1789-1801*, pp. 97-100:

"The new Congress proceeded to employ both carrot and stick to induce the
two delinquents to join the new Union. North Carolina and Rhode Island
shipowners were temporarily accorded 'all the privileges and advantages to
which ships and vessels owned by citizens of the United States are by law
entitled'--that is, lower tonnage and tariff duties and a federal license.
At the same time, however, a variety of goods produced in North Carolina
or Rhode Island were subjected to customs duties when 'brought into the
United States'--just like goods 'imported from any foreign state, kingdom,
or country.'

"It did not take long for North Carolina to get the message. A second
convention, dominated by Federalists, reversed the initial negative vote,
and a new legislature produced two Federalist Senators. On February 8,
1790,Congres extended the tariff, tonnage, and licensing laws to North
Carolina and declared that the sanctions imposed upon that state the
preceding year had expired on its accession to the Union.
"Rhode Island was given two brief months to see the light as its semi-
foreign status was extended until April 1. Implicit was the threat that
if Rhode Island did not ratify it would be treated as foreign, and thus
subject to import duties on all its products as well as discriminatory
treatment of its shipping. But as April passed without favorable action
the Senate passed a bill that would have gone much further by banning all
commercial intercourse between Rhode Island and the United States and
requiring the payment of $27,000--that state's purported share of the cost
of discharging federal obligations entered into before the new
Constitution went into effect.

"House action on the bill was mooted a few days later when Rhode Island
capitulated and swallowed the Constitution. The bill itself nevertheless
bristled with troublesome constitutional questions. On its face the ban
on intercourse seemed to reflect a conviction that the power to regulate
included the power to prohibit it. Yet the preamble to the bill, in
declaring the measure 'necessary to the security of the Revenue, & other
essential interests of the United States,' appeared to argue that it was
necessary and proper to the collection of taxes [in a footnote, Currie
notes the concern that an independent Rhode Island would undermine US
revenue laws through smuggling], if not also to national defense. The
demand for money seems to have been based on the theory that Rhode Island
shared responsibility for debts contracted under the Confederation, to
which it was a party. The Articles had required each state to contribute
toward financing legitimate expenditures, but the Articles seemed to be no
longer in force; the prescribed method of finance under the new
Constitution was taxation of individuals, not contributions by states.
Very likely the Senate thought Congress had implicit authority to collect
sums owing to its predecessor, although Article VI, which specifically
addressed the status of prior obligations, explicitly preserved only
claims *against* the United States--by which it seemed to mean the federal
Government, not the individual states."
http://books.google.com/books?id=nC4KbZVBeYgC&pg=RA1-PA97&sig=e_YTmbWU4d-dtc_4XtTpS4CRaZQ#PRA1-PA97,M1

Currie (p. 99) quotes Senator Maclay to the effect that the supporters of
the bill "did not deny" that its true purpose was to coerce Rhode Island
into the Union and that "it was meant to be Used the same Way That a
robber does a dagger or a Highwayman a pistol. & to obtain the end desired
by putting the party in fear." Currie wonders (p. 100) whether such
"coercion" cast a cloud on Rhode Island's ultimate act of accession, given
that Article VII seemed to contemplate that each state would make the
decision to ratify as a matter of its own free will. (A counter-argument
is that just because Rhode Island was presented with an unpleasant dilemma
does not mean that she was "coerced" in a legal sense since she could
still maintain her independence if she chose not to trade with the United
States--although the demand for money adds complications.)

Presumably, if two more states besides Rhode Island and North Carolina had
tried to hold out, Congress would have used the same carrot-and-stick
approach that worked with North Carolina (of course part of the "carrot"
was the Bill of Rights) before resorting to the harsher measures
contemplated against Rhode Island--which in all likelihood would not be
necessary.
 
The 11th State to ratify OTL was New York. 26th of July, 1788.

The votes were 30 against 27.

Butterfly 2 votes and New York refuses ratification 29 votes against 28.

What kind of pressure is the 10 state Union able and willing to exert against New York plus the 2 other holdouts? With New York holding out, the holdouts will be more capable of resisting pressure and retaliating against it than the 2 holdouts were OTL, and the 10 state Union will be more hampered and less able to apply or resist pressure.
 
The 11th State to ratify OTL was New York. 26th of July, 1788.

The votes were 30 against 27.

Butterfly 2 votes and New York refuses ratification 29 votes against 28.

What kind of pressure is the 10 state Union able and willing to exert against New York plus the 2 other holdouts? With New York holding out, the holdouts will be more capable of resisting pressure and retaliating against it than the 2 holdouts were OTL, and the 10 state Union will be more hampered and less able to apply or resist pressure.

Again I'll quote an old soc.history.what-if post of mine:

***


So the vote in New York was extremely close *but* I don't think that it
follows that it would have been a disaster for the Constitution (which
already had gotten the requisite nine states) if the Nays had prevailed.
For remember that by the time the vote was taken by the New York
convention, the real issue was no longer ratification versus unconditonal
rejection of the new Constitution but uncondtional ratification versus
ratification conditioned on the adoption of a Bill of Rights.

Now, to be sure, Madison rejected such conditional ratification as
amounting to rejection. But it seems to me that once Congress passed the
Bill of Rights the issue would be moot. Congress could save face by
refusing to accept a conditional ratification--while at the same time
fulfilling the proposed conditions. The New Yorkers could save face
by saying "We won. They adopted our conditions and therefore we hereby
unconditionally ratify this Constitution." As McLaughlin notes, "the
localists were playing a dangerous game; New York, as yet not one of the
most populous states, could not safely play a lone hand. There was a
considerable sense of self-sufficiency, a reliance on the state's own
strength, but its frontiers were open to attack; it was not safe, either
as a member of a distracted and incompetent Confederation or standing
quite alone, to face with its own feeble strength a world hungry for
power." Under such circumstances, it seems to me that with the adoption of
the Bill of Rights giving the New Yorkers a chance to claim victory,
ultimate ratification by the state was very probable, at least assuming
that not only the nine necessary states but also Virginia had ratified.

https://groups.google.com/d/msg/soc.history.what-if/DVFHOjOu7sM/WP1vBdjwDxwJ
 
Again I'll quote an old soc.history.what-if post of mine:

***


So the vote in New York was extremely close *but* I don't think that it
follows that it would have been a disaster for the Constitution (which
already had gotten the requisite nine states) if the Nays had prevailed.
For remember that by the time the vote was taken by the New York
convention, the real issue was no longer ratification versus unconditonal
rejection of the new Constitution but uncondtional ratification versus
ratification conditioned on the adoption of a Bill of Rights.

Now, to be sure, Madison rejected such conditional ratification as
amounting to rejection. But it seems to me that once Congress passed the
Bill of Rights the issue would be moot. Congress could save face by
refusing to accept a conditional ratification--while at the same time
fulfilling the proposed conditions. The New Yorkers could save face
by saying "We won. They adopted our conditions and therefore we hereby
unconditionally ratify this Constitution." As McLaughlin notes, "the
localists were playing a dangerous game; New York, as yet not one of the
most populous states, could not safely play a lone hand. There was a
considerable sense of self-sufficiency, a reliance on the state's own
strength, but its frontiers were open to attack; it was not safe, either
as a member of a distracted and incompetent Confederation or standing
quite alone, to face with its own feeble strength a world hungry for
power." Under such circumstances, it seems to me that with the adoption of
the Bill of Rights giving the New Yorkers a chance to claim victory,
ultimate ratification by the state was very probable, at least assuming
that not only the nine necessary states but also Virginia had ratified.

Check the timeline:
OTL:
New York ratified 26th of July, 1788

Congress met and reached quorum, 6th of April, 1789
Congress proposes Bill of Rights, 25th of September, 1789
New Jersey ratifies Bill of Rights, 20th of November, 1789
North Carolina ratifies Constitution, 21st of November 1789 - not knowing if any State had or would ratify Bill of Rights

Rhode Island ratifies Constitution, 29th of May, 1790. At that time, the ratification of Bill of Rights still was stalled - outright rejected by Connecticut and Georgia, mostly ratified by Massachusetts but the decision not formally communicated to Secretary of State. Virginia delaying ratification.

Virginia finally ratified Bill of Rights on 15th of December, 1791

Now make a butterfly that New York refuses ratification.

With New York also staying out, there would be a greater urgency to propose and ratify Bill of Rights.
Would New York ratify Constitution on strength of proposed Bill of Rights, like OTL North Carolina did? Or would New York continue to hold out demanding that Bill of Right should be actually ratified before New York agrees to ratify Constitution?

There was an OTL campaign by Anti-Federalists to thwart the ratification of Bill of Rights in order to force a second Constitutional Convention. With New York holding out of ratifying Constitution, would the Antifederalists get their wish for the second Convention?
 
Check the timeline:
OTL:
New York ratified 26th of July, 1788

Congress met and reached quorum, 6th of April, 1789
Congress proposes Bill of Rights, 25th of September, 1789
New Jersey ratifies Bill of Rights, 20th of November, 1789
North Carolina ratifies Constitution, 21st of November 1789 - not knowing if any State had or would ratify Bill of Rights

Rhode Island ratifies Constitution, 29th of May, 1790. At that time, the ratification of Bill of Rights still was stalled - outright rejected by Connecticut and Georgia, mostly ratified by Massachusetts but the decision not formally communicated to Secretary of State. Virginia delaying ratification.

Virginia finally ratified Bill of Rights on 15th of December, 1791

Now make a butterfly that New York refuses ratification.

With New York also staying out, there would be a greater urgency to propose and ratify Bill of Rights.
Would New York ratify Constitution on strength of proposed Bill of Rights, like OTL North Carolina did? Or would New York continue to hold out demanding that Bill of Right should be actually ratified before New York agrees to ratify Constitution?

There was an OTL campaign by Anti-Federalists to thwart the ratification of Bill of Rights in order to force a second Constitutional Convention. With New York holding out of ratifying Constitution, would the Antifederalists get their wish for the second Convention?

No, because the 12 proposed Constitutional amendments would be "on the table" for as long as it takes for them to be ratified by the required number of states. While anti-federalists did indeed speak out against them, there's not much they can do about them besides raise a stink, (Contemporary political issue reference Alert: Just as Conservative Republicans can't do much about Obama Care except to raise a stink about it). In the end, I doubt that NY would hold out any longer than NC did and certainly no longer than RI did before ratifying the Constitution and 10 or so of the proposed amendments.
 
My hope---

My hope had been that, with a contiguous region not ratifying, the area could remain part of the USA without being under the constitution, with the resulting complications down the road. The War of 1812, if not buterflied away (something similar might crop up due to ongoing Anglo-French wars) and the slavery issue. Vermont need not be part of New Hampshire, though I want it as part of the Confederation States.

If these states adamantly refused to ratify, could the nation drift off into becoming 2 nations? Perhaps the refusal to ratify is due to the Constitution being slightly different than in OTL?
 
My hope had been that, with a contiguous region not ratifying, the area could remain part of the USA without being under the constitution, with the resulting complications down the road. The War of 1812, if not buterflied away (something similar might crop up due to ongoing Anglo-French wars) and the slavery issue. Vermont need not be part of New Hampshire, though I want it as part of the Confederation States.

If these states adamantly refused to ratify, could the nation drift off into becoming 2 nations? Perhaps the refusal to ratify is due to the Constitution being slightly different than in OTL?

At this point in time, only the failure of the Constitution (either no consensus at the convention or ratification by fewer than 9 states) followed by the collapse of the flawed & floundering Articles of Confederation will bring about the separate nations you seek to create.
 
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