What if the Founders had Actually Amended the Articles of Confederation?

These essays are accurate, and I agree with the gist, that you could have given the confederal government taxation and restricted legislative powers without creating the apparatus of the IOTL federal government, with the House of Representatives, Presidency, Supreme Court, and cabinet.

Taxation power is critical. The Supreme Court isn't strictly necessary (In Britain the House of Lords used to be the High Court with non-law members following the Gentleman's agreement to abstain and it didn't fall apart in the 1100s to the 1700s) but having people trained in legal matters about who are insulated from populists might be a good idea.

http://www.theatlantic.com/national...speaks-out-against-judicial-elections/279263/

My favorite story (not in the article) was about an elected judge who at the end of the his career started ordering the release of a bunch of defendants from jail without bail. He was at the end of his career and knewthat the prosecutor was holding them just to put pressure on the defendants (as three prosecutors who brought cases in his court usually did...). My interpretation: He could follow his conscious since he was close to retirement anyways.
 
In 1777 they didn't have the lessons learned up to 1787. Indeed, there were those who argued whether they even needed a National government as we know it. They considered the States to be enough.

Think of the revolutionary period as an experiment in governance. They were learning as they went.


Sounds as though George III did America a favour by keeping up the fight as long as he did. Had he called it a day after Saratoga, would there ever have been a Federal Government as we know it?
 
In a post in soc.history.what-if I once quoted Calvin H. Johnson of the University of Texas at Austin School of Law (who some years ago wrote a book entitled *Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution*):

***

"John Kaminski, the long time director of the well-respected Documentary
History of the Ratification of the Constitution project, has argued that
Congress should have accepted New York's counter-offer as to the 1783
impost and that if it had, the country would have moved in salutary
directions.141 Rhode Island vetoed the 1781 proposal for a 5% federal
impost and Virginia then quickly retracted its prior approval. But the
desperate Congress returned again in 1783, this time limiting the 5%
impost to a 25 year duration and dedicating the money only to the existing
war debts.142 By May 1786, all of the states, except New York, had
ratified the 1783 proposal, including both Rhode Island and Virginia, the
vetoing states of the 1781 proposal. By 1786, however, New York had
established its own state impost on traffic through New York harbor, and
it was unwilling to cede nationalization of the impost without conditions.

"In response to the 1783 impost proposal, New York made a counter offer.
Payments would be made in New York paper dollars, discounted if necessary
to their worth in specie. Merchants would have procedural rights including
the right to jury on contested issues. Congress considered the conditions
unacceptable and asked New York to reconsider. In February 1787 the New
York Assembly refused to alter its stance.143

"Professor Kaminski argues that Congress should have accepted New York's
counter offer or continued conciliatory negotiations, as, for instance,
James Monroe recommended. 144 'Had Congress followed this advice,'
Kaminski says, 'its financial needs would have been met and no federal
convention would have been called to meet in Philadelphia in the Spring of
1787.'145 With the impost and sale of western land, the federal government
could have made the minimal payments on the war debts until imports grew
important enough to carry the debt comfortably. Kaminski believes that
confederation form of government would have been better for 1787 America
than was the strong national government the Constitution ordained. He
believes that Congress would have evolved into a Parliamentary form of
government with John Jay, as prime minister.146 The Founders would have
avoided an imperial President, modeled on the King.

"The Congress, however, rejected New York's conditions. The Federalists
interpreted the New York conditions as pretextual, tantamount to veto. New
York delegate, Melancton Smith, made a case for accepting the conditions,
which did not describe them as vetoing,147 but the Federalist
interpretation was that New York was vetoing the national impost, in bad
faith, just to keep the revenue from the New York harbor for its own
selfish purposes. 148 'The dominant party in New York' Madison would say,
'had refused even a duty of 5 percent on imports for the urgent debt of
the Revolution, so as to tax the consumption of her neighbors.'
Neighboring Connecticut reacted angrily at having to pay a New York state
impost on goods passing through New York harbor bound for Connecticut:
'Those gentlemen in New York who received large salaries,' editorialized
the Connecticut Courant, 'know that that their offices will be more
insecure.. when the expenses of government shall be paid by their
constituents, than while paid by us.'149 When New York responded to the
1783 impost, every 'liberal good man,', it was said, '[wished] New York
[should rest] in Hell.150

"A polity that is built on consensus and unanimity needs to negotiate to
work out the differences and needs to compromise to pull in all the votes.
In 1787, Congress was too angry at New York to perform its function within
a consensus system and to negotiate any further and it did not care to see
any reason in New York's counter-offer. One does not need to believe that
New York was right on the merits or that the Articles would have
evolved into a superior form of government to accept that some other
factor, such as anger, was necessary for the rejection of New York's offer
that in fact occurred. The need for the impost did not strictly require
rejecting the unanimity norm, but to get the impost from New York, the
nationalists would have had to let go of their anger, and negotiate,
as Monroe put it 'with temper to conciliate.'151 The Federalists went to
the Convention instead. As Hamilton truly wrote, 'Impost Begat
Convention.'"
https://groups.google.com/d/msg/soc.history.what-if/RQglKDaK4s0/LJH41-_Rof0J
 
In a post in soc.history.what-if I once quoted Calvin H. Johnson of the University of Texas at Austin School of Law (who some years ago wrote a book entitled *Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution*):

***

"John Kaminski, the long time director of the well-respected Documentary
History of the Ratification of the Constitution project, has argued that
Congress should have accepted New York's counter-offer as to the 1783
impost and that if it had, the country would have moved in salutary
directions....As Hamilton truly wrote, 'Impost Begat
Convention.'"
https://groups.google.com/d/msg/soc.history.what-if/RQglKDaK4s0/LJH41-_Rof0J

What I think this analysis does not take into account is that this last funding battle was not a unique case but typical of how Congress butted heads with state governments that wrote off Federal obligations as "not our problem now that the war is over." Again and again, Congress would go begging for funds that a majority of state delegations concluded were reasonable and necessary, only to have each state wait for some other to pay and try to ignore the obligation completely.

Having done the exercise of reading through a summary of the Articles and finding remarkably little needed to be changed, I can better respect the position that actually perhaps the Articles regime could have limped along with no changes whatsoever. But I think our discussion up thread already established that a consensus had already arisen by 1786 that two things would have to change--first, that Congress needed to have taxing authority of its own, with the states agreeing to pay in full what Congress demanded of them with no more haggling--for after all, the states already had had input in the form of their chosen delegates to the Congress, and a majority or perhaps supermajority had agreed that the states ought to pay X dollars in full, and there was already a set formula for breaking that down into each individual state's obligation. They lacked only the authority to demand full payment, and in practice the states did not pay in full, not by small deficits either but by massive percentages. And secondly, that absolute unanimity was too stringent a supermajority where those were needed; the example of Maryland waiting so long to ratify the Articles was a case in point. With those two changes I can see a clear path to the Articles government being comparable in use to the OTL Constitution.

Vice versa it is possible that with no changes at all, that the system might stumble along, but I think frustration with the excessive power of individual states to block consensus and desire for more streamlined handling of international affairs and eventually adjudication between states would all build up pressure to make at least those two changes. In particular funding might be negotiated ad hoc, but the Articles contain a framework judged presumably to be fair enough to distribute fiscal burdens across all the states; every time they negotiated some other deal instead the burden would lie more heavily on some states while others had lighter ones or scooted free with no payments at all. I've stressed how with a funding mechanism in place Congress might go nuts and impose skyrocketing demands, but after all Congress remained a creature of the several states that would be paying, and if a particular state had a light assessment rate with another set much higher, this was supposed to reflect ability to pay--per citizen it should work out pretty much even. A proposal, evaluated on its merits to be useful, would cost something, and the only fair basis would be for all to pay alike. It might be otherwise for particular proposals--for instance if Congress resolved to improve certain harbors on the Atlantic and Gulf coasts but defer west coast ones, then all states inland and the Pacific coast might want to back off and refuse to approve it; the politics would come in with the harbor bill being bundled in with say inland highway improvements--then perhaps sufficient support would be forthcoming. OTOH some grandiose project of little apparent national use would simply fail to get the support needed and die, for an individual state to undertake it maybe or just be left undone by anyone. Congress can do anything but the states collectively tell it what to do.
 
A Survey and attempted analysis of the Election of 1912 in an Articles TL with Congress assigned proportionally by OTL Presidential state popular votes:

I assume that by amendment at some point before 1912, all states are required to agree to hold a popular vote statewide in which a slate of 9 partisan candidates are chosen proportionally (using Hamilton's method of greatest remainders) to select each states' roster of 9 delegates to the Congress. Congress has taxing powers, and some functions, in harmony with the original Article specifying them, have supermajority requirements. Each state delegation must determine a majority in their caucus, which is why there is an odd number of delegates. Effective votes as per the original Articles are one per state. With 48 states, a simple majority is 25, while supermajorities round up which means when the fraction is exactly an integer there is no rounding, thus 32 is a 2/3 majority and 36 is a 3/4 majority. 3/4 is required for amendments, all other votes are decided by 2/3 or simple majority.

I choose 9 delegates as being specified by Amendment for each state to supply because it is about the maximum number I think I can get away with; such a large number gives partisans of a third party a chance to get some serious numbers of delegates but note that the way each state will vote will be determined by caucuses of 5 or more. But when votes are widely split, as they were in 1912, many states will lack such solid majorities in their caucuses, and the outcome is that their votes will be determined by alliances of 2 or more parties on specific line item issues. The 1912 outcomes gives some very interesting possibilities for the crucial 1910s decade!

Since I do not know how to publish neat tables here I will not attempt to list the pattern of outcomes in the form of a table of the composition of the 4 parties (Democratic, Progressive (OTL TR Republican faction), Republican (Taftite) and Socialist) who win any delegates in any states. In addition to these 4 parties, 2 others, Prohibition and Socialist Labor, got significant numbers of popular votes across the nation, but the proportionality process fails to award them any delegates and so they become irrelevant.

Nine delegates from each of 48 states gives 432 delegates total--a number very similar to OTL Congress size which is another reason I think I can justify it going that high and yet seeming reasonable given OTL apparent constraints.

In delegate count total, the 4 parties get:
Democratic 204
Progressive "Bull Moose" 110
Republican (Taftite ) 94
Socialist 24

We can see that with an additional amendment eliminating the rule that states vote as one for one vote each and instead turning Congress into a legislature of 9*48 or 432 independent votes free to caucus across state lines, the Democrats cannot muster a majority (217 votes) without drawing votes from at least one other party, while if the split Republicans were to re-caucus they would be in exactly the same position as the Democrats with exactly 204 congress members also. Either bloc caucusing with the Socialists can vote majorities but has no super majority (288 for 2/3, 324 for 3/4); to get that we'd need for the Democrats to get either Republican party to join with them (84 from either bloc or combined from both for 2/3) and to get 324 (needed for Amendments) the Democrats, or the 2 R parties combined, would need 120 more votes which means a mix of all 3 top parties. Note Congress alone does not pass Amendments, as OTL a quota of it must pass a resolution recommending one, and then a supermajority of states must pass it.

However more conservatively supposing the state delegations remain the sole voting power, with at least 5 of each 9 determining the vote, the outcome of the proportional distribution of delegates within each state is that 13 states have solid Democratic majorities, just one (South Dakota) is Bull Moose Progressive-Republican (split 5/4 Pr/Dem) and the rest lack 5 member caucuses of any party.

However I made a table that evaluates the result of 2 or more parties combining and gives some interesting results indeed! That is, imagine 2 or more parties can agree on some line item or even broad policy such as a complete law or even amendment. When 2 or more in each state add up to more than 5 delegates, that determines that state's vote despite the fragmentation of the delegation. A state might thus vote one way (in terms of each partys' platform) on one issue but another way on another, depending on the harmony or disharmony between each party's platform and the others.

And of course delegates, as individual people, can break from their party line on issues thus shifting state delegation votes. They presumably take the consequences of defying party discipline into account as well as what will please or displease the voters in their home state. But I can't analyze that very well, beyond remarking that in 1912 on surprisingly many issues we should assume less conservative biases than we usually would, though issues like Jim Crow discrimination are going to be deeply hammered into the Southern delegations.

Going through the combinations systematically:
Democratic alone :13 votes
Democratic plus Progressive: 47 ! This means that on any issue the two factions can universally agree on, this combination can do anything--including recommending Amendments to the states, and since the state legislatures are likely to more or less mirror the caucuses that give this overwhelming consensus, it seems likely any Amendments both parties like will pass readily.

OTL the 1913-14 electoral cycle, or anyway by 1916, produced several amendments and now we can see why this was. Issues like Income Tax seem likely to have a similar resonance in this period after a generational democratic outcry against those TR called "malefactors of great wealth;" a punitive tax on high wealth was exactly what the Income Tax was intended to be when passed, since few foresaw massive Federal expenditure increases. Note that as the WWI issue looms, a Congress of this composition might tip toward favoring Income Tax to fund foreseen major war expenses. Or, it is also possible that Income Tax is not on the agenda because OTL Lincoln imposed one during the Civil War; the Supreme Court struck it down (Lincoln maneuvering to prevent this until the war was won) and so an Amendment was required, but it is possible that the Supreme Court, if there is one in the ATL, is fully subordinated to Congress and thus a Congress that simply passes an Income Tax law with sufficient supermajority (as an ATL Articles Union side would probably be able to do after secession of the south) can just keep it on the books indefinitely--or until some later majority strikes it legislatively. But then of course a simple majority could bring it back.

Another OTL Amendment of this era provided for direct election of Senators. Given that I am assuming already proportional election of Congress and these are already the closest thing to Senators in the ATL, again no need. But I think if we have people not voting directly and proportionally for their 9 Congress delegates but the old regime of simply electing state legislators, these outcomes suggest that the majority of legislatures would be split with no majorities, and the ad hoc outcomes of compromises being worked out would produce a similarly mixed party Congress that would indeed propose the same sort of proportional election of Congress I am assuming, so if I cannot have this for 1912 I think we can have it for 1916 at the latest and thereafter. This could also be a year in which an amendment to free the delegates to caucus with other co-partisans from other states and eliminate or limit state-caucus voting might also happen instead.

The Federal Reserve system was also formed in this period, and I think some analog of that would be favored. Toward the end of Wilson's presidency both the Amendments enfranchising women to vote across the nation and Prohibition were also passed; both these movements are also in the cards therefore. Meanwhile note that already a lot of women are voting; whether or not they could vote is by default left to each state legislature and many have already enacted it. Similarly individual states may already be enacting Prohibition, I am less sure about that.

Moving on down:

Dem plus Prog plus Taftite gives all 48 states voting unanimously; clearly adding in the Socialists does nothing in this case. Neither does conciliating the Taftites much if the Dems have the consensus of the Progressive delegates.

Dem plus just Taftite gives 46 state votes; clearly the Democratic plurality, which can do nothing by itself, can appeal to either bloc of R's to the exclusion of the other, or to partial caucuses of each, and get a lot done. Adding in the Socialists to this brings in one more state but clearly that is not a big deal, unless the Democrats are failing to woo one faction or the other and getting threadbare minorities of each.

Finally Democrats plus Socialists, bypassing both GOP wings, get just 21 states, falling short of a majority.

Now looking at what Republicans and Socialists can do without any Democratic help:

Progressive plus Taftite (the old GOP before the split) muster 27 states--a majority but falling short of either supermajority, so they can by cooperating in near-unanimity block any particular piece of legislation the Dems desire (or particular appointments of people to executive jobs, etc) but cannot do anything requiring a supermajority.

Adding in the Socialists are 35 states--plenty to do anything but pass an amendment. But it seems plausible just one single Democratic state might cross party lines to vote with this powerful coalition--so something like an anti-lynching Amendment which was impossible in these years OTL just might pass despite strong Democratic opposition, as long as the other 3 parties were firmly for it and at least one Democratic state defects on the issue. Unfortunately of the 13 Democratic-strong states, I really can't identify one that seems likely--subjectively I would guess Arkansas, Kentucky, or possibly Virginia might, maybe Maryland or Tennessee.

Anyway to proceed what can Progressive plus Socialists accomplish? That yields just 2 states!

What about Taftite Republican plus Socialist? That results in just 1.

Without some Republicans the Socialists can't deliver any states; their highest number of delegates in any one state is two from Oklahoma, and one each in 24 other states.

To break it down, assuming party discipline binds all party delegates to vote one way or the other with no splitting,

The Democrats can do nothing on their own, but with either Republican division on their side that coalition can do anything they like. Given that Wilson led on the premise of being a Progressive Democrat, and the Bull Moose Party was considered the Progressive wing of the Republicans, Progressive OTL issues such as income tax, certain political reforms, new regulatory regimes and so forth that passed OTL seem likely to win approval here. The issue of joining WWI seems likely to go much as OTL--the Bull Moose types will favor entering on the Allied side, nobody actually favors joining on the CP side (but many Democratic constituencies, and perhaps some Taftite Republican ones, will be somewhat anti-Ally) so it will be a matter of shifting nay votes on both Democratic and Republican tickets to yea to join the war and this will not happen until the threat of submarine warfare seems outrageous, or more cynically until the Allies have incurred decisively a lot more debt and seem to require American aid to win and thus redeem those debts. Anyway this is getting away from party line voting, so back to it:

The Progressives plus Taftites (Aka the reunited GOP) can muster just a majority and thus block anything they agree they don't like the Democrats doing. OTL powers that Woodrow Wilson used to purge Federal administration of African Americans and intensify Jim Crow norms in DC city government, and to encourage Jim Crow reaction all over the nation, probably will not fly here--unless of course key numbers of Taftites and Progressives are wooed away from traditional Republican moderation on race relations and convinced of the "Birth of a Nation" narrative--the alliance of white supremacy across the nation. Given prevailing norms in the 1920s I am not sure which way this goes, but again assuming no breaks in party solidarity, the Democrats cannot use Congress to make things worse for African Americans. Competent AA Federal employees such as military soliders and sailors, Coast Guard crew (and officers!) and others already appointed are likely to keep their jobs as long as they are competent and willing to hold them. I can see a "compromise" arising in a gentleman's agreement of Republicans not to back promoting any new AA applicants--but this, unless it is the outcome of erosion of the Republican line favoring moderation in race relations, would demand some sort of quid pro quo.

As I said a Grand Alliance of all three non-Democratic parties, including the Socialists (who are likely to be very offensive to the Taftites to be sure and vice versa) can almost pass an Amendment by themselves, and can force through legislation on any subject or demand control of personnel appointments to executive/judicial office. If it were possible to persuade one Southern Democratic state of 13 to back some civil rights measures of some kind, it could be done, though an Amendment on such a subject would be a long shot unless it were quite mild. Here of course we are shoehorning conservative Taftites and radical Socialists together and having to sweeten the deal for some Southern caucus as well.
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I have done the math for computing how a Congress of 432 would be allocated by consolidating the popular vote of all the nation for the 6 parties listed in Wikipedia's national results outcome table in a proportional manner.

The outcome would be
Democrats 181
Bull Moose 118
Taftite 100
Socialist 26
Prohibition 6
Socialist Labor 1

Thus we see that the result of setting all states equal in power in Congress is to favor the dominant party, the Democrats, penalizing all 5 others, and even the fringe SL party gets one delegate (via Hamilton's process, I don't think the other processes are sure to assign that marginal last seat to them). Broadly speaking the effect is to have the same fluid balance of power as I had above but consider that for instance the two Republican wings together now strongly outnumber the Democrats instead of being neck and neck. Still they are actually weaker than before; while the two can manage a bare majority to threaten to block anything they don't like the Democrats doing, they cannot form any supermajority even with an alliance of all 5 second parties put together. That ability was a function of leveraging state caucuses, and does not exist when all Congress members have one free vote each instead of needing to vote through state caucuses. The distant, glittering prospect of a 3/4 majority to pass civil rights legislation is now a mere mirage.
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Finding those numbers did allow me to compute the Gallagher Index of the state-by-state system however, comparing the spectrum of delegates by party with the composition of the nationwide popular vote. This is a simple root-of-summed-squares computation--subtracting the number of delegates each party gets nationally under one system from that of the other, squaring the difference, adding the squared differences and taking the square root of that sum gives a number just short of 27 out of 432, or about 6 percent. This is very similar to the index the US Congress gets when we compare numbers of Representatives elected to the portions of the aggregate popular vote cast for each party. Truly proportional systems on the other hand tend to be around 1/2 percent or less. Since each separate state's delegation is proportionally elected here, this shows us the effect of decoupling each state from every other (so minorities in each cannot add to enable election of small numbers such as the two smallest parties got under strict national proportional allocation) as well as mixing together states of different sizes.
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Going in the other direction, supposing that state legislatures tend to veer solidly one way or another even facing third party challenges due to the effect of single-district voting channeling--that is, in few or no legislatures do the voters get to vote statewide for a proportional legislature, and the legislatures have discretion to choose the Congressional delegation. Given the wide split in voters in 1912, I used the proportionally assigned numbers of delegates as a rough guide, along with intuition about the political climate OTL in various regions, to judge where legislatures would wind up in the following categories:

Democratic (largely equal to the Solid South)--5 or more Democratic delegates = a solid Demo majority legislature hence solid Dem Congressional delegation:
13 states
Progressive--if Bull Moose plus Socialist votes are over 5, or a lot of judgement calls when the Bull Moose vote is strong, there are some Socialist votes, and/or subjectively either the Taft-Rs or Democrats in that state might lean a bit left:
8 states
Republican--States where Bull Moose plus Taftite add up to more than 5 and there is no judgement reason such as a strong Socialist vote to shift them into the Progressive column. These are by inference more conservatively dominated Republican states, though a coaltion with a fairly strong Bull Moose element does tend to limit that:
21 states
Conservative--a split between the Democrats and Republicans leaves neither with a majority out of 9, and there is no reason to assume a strong state Progressive bent influencing the Democrats to the Left, or the strong majority of Republicans are Taftite. Deals between traditional Democratic and Republican elites will split the delegation and favor conservatives from both factions; in partisan terms a wild card but in policy terms, not progressive.
3
Indecisive--the split is just too close to call, implying unpredictable splits of the Congressional delegations probably based on personality and machine politics; state votes up for grabs in Congress:
3

With these numbers I think the overall "mood" is more conservative than when voters control the delegation compositions themselves. If the straight up partisan Democrats and Republicans came to an accord on an issue and everyone voted party line, the two mainstream parties could do anything but pass an Amendment, for which they'd need one more state, to be poached from Progressive, Conservative or Undecided groups. For one ideological side to try to prevail--say the Democrats discouraged progressivism, chose a conservative strategy and then recruited the "Conservative" states, they'd only have 16 votes in hand. Vice versa if all Republicans, even Taftites, agreed to align with the Socialists, unifying the Progressive and Republic blocs defined above, they'd need 2 more votes from another bloc for 2/3 supermajority issues, and 6 to carry amendments. In reality this would be more likely to happen with some more conservative Republicans sitting it out and some Democratic states crossing lines due to especially progressive delegations or a pressing state interest--stuff that benefits and doesn't upset the South is much more likely to prevail. Some Progressive, even Socialist policy might be implemented that way. A "screw the South" agenda that excludes the Democrats and is likely to alienate at least one Conservative states (Missouri) might manage to govern if every one of the other Conservative and indecisive states could be recruited.
 
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