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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:
In particular, the Congressional refusal of New York's Impost was, all things considered, a low probability event:
Finally, Professor Kaminski speculates upon how the reformed Articles of Confederation would've impacted the United States:
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?
- 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.
- 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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