Constitutional History

[eldin raigmore]

American Constitutional History; the Three-Fifths Compromise
by eldin raigmore

Today I Found Out That;
The 3/5 Compromise was a thing under the Articles of Confederation; and the states completely swapped sides between the Articles and the Constitution!

The Confederation Congress was debating an amendment to tax the states proportional to their populations rather than their property.
The Northern States wanted every person in every state to be counted for that purpose.
The Southern States objected that slaves were property not population; and it was unfair that the Northern states would be taxed just on their population, but the Southern states would be taxed BOTH on their population AND their property.
The Articles could only be amended unanimously.
So the amendment wouldn’t go anywhere without a compromise.

A couple of Southern states proposed the compromise of counting in half the Blacks, while a couple of Northern states proposed the compromise of counting in 3/4 of the Blacks.
It turns out “dueling compromises” doesn’t count as a “compromise” when you need unanimity.
A couple of Middle States proposed the “compromise compromise” of counting 3/5 of the Blacks. (5/8 would have been exactly halfway between at 62.5%; 3/5 is pretty close, it’s 60%, but it’s a little more on the Southerners’ side than 5/8 would have been.)
They still needed unanimity to pass the amendment, though, and two states still hadn’t ratified it by the time they convened the Constitutional Convention.

....

When the Constitutional Convention was considering how to apportion the seats in the lower House, everyone already agreed that it should be by population. But now getting more seats in the HR was perceived as entirely worth the burden of paying more taxes! Now the Northern states didn’t want to count Blacks at all, but the Southern states wanted to count them all at full strength!
Well, everybody had heard this tune before. They already knew that they’d settle on 3/5 if they’d settle on anything. And the Convention didn’t require unanimity; I don’t know if they required 3/4 or 2/3 or 3/5, but they got what they required.
Part of the reason was that the less-populous states, whether Northern or Southern, wanted to rescue the Great Compromise that kept their representation in the Senate the same as any other state. Or something like that; anyway they thought they’d be represented better if there was a compromise like the 3/5 compromise than if there weren’t one.

.....

So when the Constitution was proposed for ratification, it had the 3/5 compromise in it.

.....

One thing that’s remarkable to me (YMMV); although the Constitution says amendments to it have to be ratified by 3/4 of the states, the clause that says when it goes into effect says, it goes into effect among the states ratifying it as soon as nine states ratify it.
By that time there were 15 states in the Confederation; 9 states was only 3/5!
2/3 would have been 10 states, and 3/4 would have been 12 states. (Well, 11.25 states, but you have to round up!)

Edit: my mistake! Sorry!

But it was IMO a smart move to say it would take effect, among the states ratifying it, even if not every state ratified it. Who would want to be left out?

[Salmoneus]

Err... OK?

One thing that’s remarkable to me (YMMV); although the Constitution says amendments to it have to be ratified by 3/4 of the states, the clause that says when it goes into effect says, it goes into effect among the states ratifying it as soon as nine states ratify it.
By that time there were 15 states in the Confederation; 9 states was only 3/5!
2/3 would have been 10 states, and 3/4 would have been 12 states. (Well, 11.25 states, but you have to round up!)

First, and not to teach an American their own history, but: there were originally only 13 states ("the Thirteen Colonies"). So 9 states is actually just 2/3rds of the states.

Second, I'm not sure why this is remarkable. You're talking about two completely different things: the process of adopting the constitution, and the process of amending it. The adoption threshold has to be enough to automatically make the adopting states the dominant force over the non-adopting states: if it were set at only a majority, there'd be a major risk of the country simply splitting in half. Having a higher threshold means that once that threshold is reached, the remaining independent states have already clearly lost. On the other hand the threshold cannot be too high, or it may provoke hostage-taking. The goal is to dominate the minority states.

For amendment, however, the goal is to protect the minority states from domination, so the threshold is set higher.

2/3rds and 3/4ths are the obvious supermajorities to use, so they did.

But it was IMO a smart move to say it would take effect, among the states ratifying it, even if not every state ratified it. Who would want to be left out?

It was obviously an unavoidable move. If the new rules don't take effect until everybody has ratified it, then the last state to ratify (Rhode Island) is given enormous power: nobody is allowed to have their new country until Rhode Island is placated. Rhode Island can then in effect take the entire nation hostage.

[Pabappa]

Thanks for the lesson. Though oddly what caught my eye is not your main point, but the idea that the central government would tax the states.

What ever happened to that? Did that just go away sometime between the Articles of Confederation and the proper Constitution? Something to do with the difference between a confederation and a federation maybe?

As far as I know, today the federal government doesn't tax the states, it taxes the people directly in the same manner as the states themselves. But the former model might make more sense in a world where communication is limited. I remember writing a few years ago that the Poswob Empire taxes the state of Nama in a lump-sum manner, since it is difficult to communicate with the people of Nama and the imperial government trusts Nama's own rulers will produce the tax money by whatever means necessary.

So to the Poswobs, Nama is like the original US states under the Articles of Confederation. I came up with that idea just on its own, solely because of the difficulty of communication over such rugged terrain as that of Nama. But perhaps it would make sense for me to follow that taxation model for all of the states, even those right near the imperial capital with whom communication is easy.

[elemtilas]

I think you might must be referring to the eleventh Amendment. That's the only one ratified when there were fifteen states, which would give rise to the curious numerical coincidence of 3/5.

All I can say about the compromise(s) itself is that it was a moral abomination that thankfully got resolved. (The 3/5 compromise regarding slaves, that is: insult upon injury.)

Written constitutions really aren't a Thing in any country of the World that I can think of, so I can't really say much about amendments thereto. There may very well be some arcane Rules devised by parliamentarians that would address how many per gross of this or that House would be required to alter one of the fundamental organic laws of a country. Those laws that can be amended, anyway.

[Salmoneus]

The central government didn't tax the states (at least, in this regard). It taxed the inhabitants. The principle is: the government couldn't just say "let's tax every land owner 2$ an acre!" - it had to instead say "we want to raise $X. That means that the inhabitants of Virginia have to in total pay $Y (the same percentage of X as the population of Virginia is to the population of the USA), which means that, given that that in total there are Z acres of owned land in Virginia, each Virginian land owner must be taxe $W an acre... now, on to South Carolina!", etc.

[I don't know how the tax was actually collected - State officials may have been involved, I don't know - but the onus of the tax fell on individuals, not on their States]

Why was this rule invented? Because otherwise, a farmer in a state with high land prices would be subsidising farmers in states with low land prices. This would have been considered morally objectionable (how can you effectively fine someone for living in a popular place?) and economically suspect (if the high-price state also has higher prices for food and goods and services, as is likely, then they're not necessarily any richer in real terms than the farmer they're subsidising).


However, this rule was an enormous faff, so in practice they basically just didn't levy that sort of tax. Until the 20th century, the vast majority of the budget came from import-export taxes, though there were also taxes on some forms of production and on some exchanges of goods. The difference isn't entirely clear, but basically the constitution let the government tax economic acts however they wanted, but didn't let them tax individuals directly on the basis of their status.

What happened to that rule? Nothing, it's still there. The Sixteenth Amendment altered it to expressly allow the unapportioned taxation of returns from capital. However, something like Warren's "Wealth Tax" idea would still be unconstitutional, if the courts cared to enforce it.

[eldin raigmore]

Thanks for the lesson. Though oddly what caught my eye is not your main point, but the idea that the central government would tax the states.

What ever happened to that? Did that just go away sometime between the Articles of Confederation and the proper Constitution? Something to do with the difference between a confederation and a federation maybe?

The 16th Amendment, Proposed by Congress July 2, 1909. Ratified February 3, 1913.
The 16th Amendment changed a portion of Article I, Section 9
Taft was President when it was proposed by 2/3 of both the federal HR and the US Senate;
Wilson was President when it was ratified by 3/4 of the states.
Its text says (or begins):

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

....

But the central government’s power to tax the states never went away; it just became much less important once they could tax individuals directly.

I should mention in passing Article I Section 8

Spoiler:

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;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The second paragraph of Article I Section 10 says

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.

Which sort of means “yeah, you can collect money, but if there’s any left over it’s ours”.

[eldin raigmore]

I think you might must be referring to the eleventh Amendment. That's the only one ratified when there were fifteen states, which would give rise to the curious numerical coincidence of 3/5.

I was indeed mistaken.
But my mistake was different.
I thought Kentucky and Vermont were admitted under the Articles.
They weren’t.
Their membership in the Union (or Confederation) was proposed under the Articles; but they weren’t admitted until after the Constitution was ratified.
So, yeah, my last few paragraphs are wrong. 9 states out of 13 was a 2/3 majority. 10 would have been a 3/4 majority.
I’m still surprised they didn’t require a 3/4 majority, but 2/3 is less surprising than 3/5* would have been.

*3/5 would have been 8 states out of 13.

The reason, I guess, was to make it pass the Confederation Congress as if it were an ordinary law or act, instead of an Amendment to the Articles.
The Confederation’s Congress had to act by a 2/3 majority, like the General Assembly of the U.N.
Amending the Articles required unanimity.

Other states were also organized as territories under the Articles, though not proposed for Union membership (nor, as far as I know, statehood?) until the Constitution was ratified. That’s what the Northwest Ordinances and the Southwest Ordinances were about. (And the Land Ordinance of 1785, which I just found out about!)

Written constitutions really aren't a Thing in any country of the World that I can think of, so I can't really say much about amendments thereto. There may very well be some arcane Rules devised by parliamentarians that would address how many per gross of this or that House would be required to alter one of the fundamental organic laws of a country. Those laws that can be amended, anyway.

I want this thread to be about the Constitutional history of any RL nation-state (or similar polity) any CBBean is interested in.
The UK, India, France, Mexico, e.g., come to mind!
Oh! And Canada and Germany and Australia and New Zealand!
Just about all of them, I guess!

....


If you have something to say about constitutions in your conworlds,
maybe they should go someplace besides “Everything Else”, though.
They might get better readership and/or better comments there.
I will certainly read them! With interest!

[elemtilas]

If you have something to say about constitutions in your conworlds,
maybe they should go someplace besides “Everything Else”, though.
They might get better readership and/or better comments there.
I will certainly read them! With interest!

For me at least, not much else to say on that score more than I've already said! Written constitutions as we know them just aren't done.

I want this thread to be about the Constitutional history of any RL nation-state (or similar polity) any CBBean is interested in.
The UK, India, France, Mexico, e.g., come to mind!
Oh! Canada and Germany and Australia and New Zealand!
Just about all of them, I guess!

The only constitutions I've read apart from the US's are Red China's and North Korea's. I've read parts of Spain's & Germany's & Europe's.

I actually think NK's constitution is a blast to read. PRC's is a pretty fun too.

The UK doesn't have a written constitution, so there's nothing to be read. Or rather, it would be too large to read in one sitting, on account of it being composed of basically everything Parliament has ever done since the 13th century.

[eldin raigmore]

The UK doesn't have a written constitution, so there's nothing to be read. Or rather, it would be too large to read in one sitting, on account of it being composed of basically everything Parliament has ever done since the 13th century.

As I understand it people [which people?] in the UK have basically-agreed-on ways to tell which laws and acts are part of their constitution and which are just laws and acts.

I wasn’t just talking about what people call “written Constitutions”.

You and I have had discussions about Auntimoany’s constitution, for instance.

[Salmoneus]

The British constitution is really quite similar to those anywhere else: it's fundamentally a matter of unenforceable conventions. Other countries have attempted to codify their constitutions - but how those codifications are interpreted and applied must still rely upon convention. The US is the worst offender in this case: because its official constitution is so ridiculously short - perhaps the shortest of any national or regional convention anywhere in the world - almost all of its actual constitution resides outside the official document, in countless legal judgements, legislative procedure rules, and executive orders. [indeed, during this administration we've seen just how much of the US constitution isn't actually contained in, or protected by, the US Constitution...] This is why judges are constantly 'discovering' (i.e. creating) fundamental new 'constitutional rights', like the right to an abortion or the right to own a handgun, and why many political battles hinge on constitutional mechanisms that aren't found in the constitution. Look at the attempt to replace Obamacare, for instance - in order to avoid the filibuster (convention), it was couched as a money bill (convention), which meant it had to fulfill certain criteria (convention), as decided by the 'parliamentarian' (convention), and I don't remember the details but it could only get though its reconciliation process (convention) by doing something that you're only allowed to do once a year (convention), etc etc. But they couldn't get the thing passed, so instead they just passed something to strip out the mandate section. The mandate is why the supreme court found the thing constitutional (ah, judicial review - famously not mentioned in the constitution!), because they determined that it was a "tax" (a term not defined at all in the constitution), which means congress can do it (even though for the first half of the country's history the constitution was 'believed' to say congress couldn't do most of the things it does now!) - but now that the mandate's gone, there's a judicial review (convention) to decide how much of the remainder of the obamacare system can remain (separability, judged by conventional tests). Etc etc.

[most countries have codified constitutions ten times longer than America's...]

--------------------


Anyway. The British constitution is uncodified - it's not written in a single document. However, the great majority can be found in only about a dozen documents.

Which laws are constitutional? Any laws governing the constitution, of course!

The other concept that's important here is that of entrenchment - the idea that some laws take precedence over others, where there's a conflict. This isn't mentioned in the US constitution, but by convention it's believed (since Marbury v Madison) to exist. Traditionally it wasn't recognised in the UK - though partly because there weren't serious legal challenges to the constitution (though there were some wars). Today, it's partially recognised. Parliament can still pass any law it wants, but judges will tend to assume that certain laws take precedence unless parliament expressly says otherwise. Essentially, Parliament is able to change the constitution at any time.


[most of the key constitutional developments in the UK can be ascribed to one of four main eras:
- the period in the 12th and 13th centuries when the legal system was being established, and there were several civil wars; the most famous document from this period is Magna Carta, but other vital ones include the earlier Assize of Clarendon (establishing juries and circuit judges) and the later Statute of Marlborough. Almost everything from this era has since been superceded, although many important principles have survived.

- the period in the middle and late 17th century, again around the civil wars; the key documents are the Petition of Right, Habeas Corpus, the Bill of Rights, and the Act of Settlement (and the Act of Union, regarding Scotland). These reiterated, clarified and made more specific earlier rights. The core of these acts remain in force and form the core of the modern constitution.

- the period from the mid-19th to mid-20th centuries when the constitution became more democratic - the Reform Acts and Representation of the People Acts expanded the franchise and made elections fairer (eg by establishing the principle that constituencies should be of broadly equal population), and the Parliament Acts dramatically limited the powers of the House of Lords. This period also saw scholarly works unofficially codifying the constitution, which gained constitutional weight themselves: in the 1760s, Blackstone on the fundamental laws and the rights of Englishmen (still frequently cited by originalists in the US); and in the 19th century Bagehot (which sets out the limited role of the monarchy), Dicey (which is the general guide to the constitution still cited today), and Erskine May (the guidebook for parliamentary procedures).

- in the late 20th and early 21st centuries, there were major constitutional changes relating to the EU and to the devolution of Scotland, Wales and Northern Ireland; the former involved introducing the Human Rights Act. There's also been changes to the Lords (the elimination of most hereditary peers) and the judicial structure (the creation of a Supreme Court separate from the House of Lords, the removal of powers from the Lord Chancellor, and the creation of the Ministry of Justice).]

[elemtilas]

The UK doesn't have a written constitution, so there's nothing to be read. Or rather, it would be too large to read in one sitting, on account of it being composed of basically everything Parliament has ever done since the 13th century.

As I understand it people [which people?] in the UK have basically-agreed-on ways to tell which laws and acts are part of their constitution and which are just laws and acts.

I wasn’t just talking about what people call “written Constitutions”.

There's only three countries without written constitutions (at the present time): UK NZ and Israel.

You and I have had discussions about Auntimoany’s constitution, for instance.

Yes, indeed! I'm sure that, like the UK, they've got some kind of agreed-on ways of determining what's part of the constitution and what isn't. And how to dispose of the bodies when someone runs afoul of it.

[eldin raigmore]

You and I have had discussions about Auntimoany’s constitution, for instance.

Yes, indeed! I'm sure that, like the UK, they've got some kind of agreed-on ways of determining what's part of the constitution and what isn't. And how to dispose of the bodies when someone runs afoul of it.

Aristotle (or somebody) supposedly sent his students around to various “states” (or cities or polises or whatevs) to write up their constitutions and collect them in a library.
If that’s true I seriously doubt most of those states had ever thought about writing their constitutions before.

The Romans required praetors to publish edicts on the city walls near the gates where the public could read them, declaring by what principles the praetor intended to rule the city that year. Or at least I think that’s what Gibbon meant when he wrote something like that.
For all I know that may have been the earliest forerunner of a “written constitution”.
I wouldn’t be surprised to be wrong, just a little bit. I’d be a little bit surprised to be wrong a lot.
And I’d be a lot surprised to be completely wrong, but, oh, well, the truth is not obligated to meet my expectations.

[Salmoneus]

You and I have had discussions about Auntimoany’s constitution, for instance.

Yes, indeed! I'm sure that, like the UK, they've got some kind of agreed-on ways of determining what's part of the constitution and what isn't. And how to dispose of the bodies when someone runs afoul of it.

Aristotle (or somebody) supposedly sent his students around to various “states” (or cities or polises or whatevs) to write up their constitutions and collect them in a library.
If that’s true I seriously doubt most of those states had ever thought about writing their constitutions before.

Again, codifying. Classical states certainly had extensive written constitutions, as large parts of their constitutions were established by law or decree.

Many classical states had at least partially codified constitutions, even if they were incomplete by modern standards, and often not continually updated as the laws changes. Greek cities in particular often treated the writer of their constitution with veneration.

The Draconian Law was created by Draco in the 7th century - and although it's most famous for its criminal law code (under which the penalty for almost everything was death), it's also a codified constitution: Draco created the Council of Four Hundred and established eligibility criteria for the various posts, and a system of checks and balances. [how much of this was invented by Draco himself, and how much was just a codification of existing conventions is I think unknown]. Draco's constitution was then modified/replaced by that of Solon. Both Draconian and Solonian constitutions were highly publicised. Over time, however, the Solonian constitution was amended, both by the gradual development of conventions and by explicit legal reforms. Aristotle's role was therefore that of someone like Dicey: his The Constitution of the Athenians (still extant) is a single-document survey of the history and current form of the constitution in his day, but did not itself hold legal force.

The Romans required praetors to publish edicts on the city walls near the gates where the public could read them, declaring by what principles the praetor intended to rule the city that year. Or at least I think that’s what Gibbon meant when he wrote something like that.

The praetorial edict could best be seen as the equivalent of the internal regulations of the US Justice Department: it doesn't change the law, but it governs how the legal authorities will choose to apply certain laws.

[elemtilas]

Aristotle (or somebody) supposedly sent his students around to various “states” (or cities or polises or whatevs) to write up their constitutions and collect them in a library.
If that’s true I seriously doubt most of those states had ever thought about writing their constitutions before.

The Romans required praetors to publish edicts on the city walls near the gates where the public could read them, declaring by what principles the praetor intended to rule the city that year. Or at least I think that’s what Gibbon meant when he wrote something like that.
For all I know that may have been the earliest forerunner of a “written constitution”.
I wouldn’t be surprised to be wrong, just a little bit. I’d be a little bit surprised to be wrong a lot.
And I’d be a lot surprised to be completely wrong, but, oh, well, the truth is not obligated to meet my expectations.

There are old "written constitutions" as well. There are certainly very many ancient "law codes" in existence, but I wouldn't necessarily call those constitutions per se, though they may form part of an unwritten constitution. The oldest written constitutions I have found are Huang-Ming Zuxun (which actually kind of reads like how a written constitution for a country in the Eastlands of the World might look, and absolutely contains treatises that would be included in the unwritten constitutions), 1373; the Constitution of San Marino, 1600; and the US Constitution (1787). The last two are the oldest written constitutions still in force as governing law. All other written constitutions date to the post-French Revolution period.

Interestingly enough, I think it could be argued that the oldest written constitution (a basic organic law that governs a community) is the Beatitudes. Obviously, they are not intended to be "laws" in the secular sense, the kingdom in question not being of this world, but it functions perfectly as the written statement of fundamental principles that govern the Christian life (in this world). That would date back a few years!