A second Constitutional Convention after the Civil War?

[Sirius]

The constitution of the United States was the result of compromise between those who wished to centralize the various states, and those who valued their states independence. In that early period, one was more likely to identify as a denizen of their particular state than as an American. The compromise was far from perfect, and the tensions between state sovereignty and national unity would be a defining issue of the first half of the nineteenth century. The Civil War put an end to that struggle, establishing the nation as supreme and the states as secondary, almost irrelevant. In the aftermath of the Civil War, there were several changes to the constitution, reflecting the freeing of the slaves, but the structure of the union evolved without changes to the constitution.

Can you envision a scenario where, after the conclusion of the Civil War (or perhaps during it?), the USA calls a constitutional convention to write a new constitution to govern the post-slavery, post-"states rights" era? 1865 seems close enough to the pronouncement of Thomas Jefferson that a new convention should be held every generation so as not to seem too outlandish. PODs in the antebellum period before the war are acceptable.

 

[GeographyDude]

This could potentially go in a lot of interesting directions.

For example, I would have liked to have seen a Constitution which recognized the rights of citizens and legal residents to join labor unions. Maybe just some timid first steps, some broad general outlines, the rest to be worked out by legislation. I think this would have helped the U.S. become much more of a middle-class society. Of course not everyone sees it this way!

And it probably should be said that not even the best Constitution in world will take the place of following through with Reconstruction and giving persons newly freed from slavery a fair shake. And doing Reconstruction right requires a lot of attention to details and the ability to move pretty quickly.

 

[Sirius]

This could potentially go in a lot of interesting directions.

For example, I would have liked to have seen a Constitution which recognized the rights of citizens and legal residents to join labor unions. Maybe just some timid first steps, some broad general outlines, the rest to be worked out by legislation. I think this would have helped the U.S. become much more of a middle-class society. Of course not everyone sees it this way!

And it probably should be said that not even the best Constitution in world will take the place of following through with Reconstruction and giving persons newly freed from slavery a fair shake. And doing Reconstruction right requires a lot of attention to details and the ability to move pretty quickly.

I wonder whether it might set a precedent of rewriting the constitution after every momentous event. E.g. an alt-WWII.

 

[TFSmith121]

As it was, the states adapted the

The constitution of the United States was the result of compromise between those who wished to centralize the various states, and those who valued their states independence. In that early period, one was more likely to identify as a denizen of their particular state than as an American. The compromise was far from perfect, and the tensions between state sovereignty and national unity would be a defining issue of the first half of the nineteenth century. The Civil War put an end to that struggle, establishing the nation as supreme and the states as secondary, almost irrelevant. In the aftermath of the Civil War, there were several changes to the constitution, reflecting the freeing of the slaves, but the structure of the union evolved without changes to the constitution.

Can you envision a scenario where, after the conclusion of the Civil War (or perhaps during it?), the USA calls a constitutional convention to write a new constitution to govern the post-slavery, post-"states rights" era? 1865 seems close enough to the pronouncement of Thomas Jefferson that a new convention should be held every generation so as not to seem too outlandish. PODs in the antebellum period before the war are acceptable.

As it was, the states adapted the XIII, XIV, and XV. The equivalents of the XVI, XVII, and XIX probably could have been adopted in roughly the same time period, given some ripples in 1861-65. XVIII was foolish in any period ... took a special kind of hubris to get that one in.

Best,

 

[David T]

The whole question of southern participation would be too awkward. It was one thing to say that until the "late rebellious states" proved their loyalty, they could not be readmitted to Congress, which had the right to legislate for them and even to insist that they ratify constitutional amendments designed to eliminate open and disguised forms of slavery and prevent such institutions from ever again becoming the cause of civil war.

It would be a different thing to call a convention to draft not amendments but an entirely new Constitution and yet exclude the South.

Besides, most northerners did not believe the Constitution *needed* fundamental changes apart from slavery and related issues that could, as I noted, be taken care of by amendment. Their position is that it was the Southerners who had perverted the Constitution before the Civil War.

 

[GeographyDude]

I wonder whether it might set a precedent of rewriting the constitution after every momentous event. E.g. an alt-WWII.

That's kind of the danger on the other side.

Now, the Supreme Court didn't really use the 14th Amendment to protect persons, they used it to protect corporations. This is the 1880s and thereabouts, very anti-union, using government as a weapon against unions. In the 1920s, the Court struck down laws against child labor citing the sacred right of contract (i.e. using formalistic reasoning instead of the palpable realities of a real life situation). And during the crisis of the Great Depression when a lot was at risk, these great formalistic scholars second-guessed from the sidelines. I'm sorry but they did. (yes, I'm kind of down on the Supreme Court these days)

So, yeah, I'd like to find something a little more adaptable without the twin dangers. And maybe that's not the right way to look at it. I invite you reading this to dive in.

 

[Penny for The Guy]

That's kind of the danger on the other side.

Now, the Supreme Court didn't really use the 14th Amendment to protect persons, they used it to protect corporations. This is the 1880s and thereabouts, very anti-union, using government as a weapon against unions. In the 1920s, the Court struck down laws against child labor citing the sacred right of contract (i.e. using formalistic reasoning instead of the palpable realities of a real life situation). And during the crisis of the Great Depression when a lot was at risk, these great formalistic scholars second-guessed from the sidelines. I'm sorry but they did. (yes, I'm kind of down on the Supreme Court these days)

So, yeah, I'd like to find something a little more adaptable without the twin dangers. And maybe that's not the right way to look at it. I invite you reading this to dive in.

OTOH, this IS Alt Hist. Nightmare scenarios are our meat and drink.

Imagine, if you will, the heady and unhealthy precedent this sets for every disgruntled special interest to have a whack at rewriting the basic Law of the Land whenever they get ... er, disgruntled. And speaking of precedent, every new parchment will wipe out a whole flotilla of previous decisions.

With a post ACW Con-Con, there is virtually no end to the mischief which could be had. Cry Havoc, and set lose the dogs of law.

 

[funnyhat]

Given that the current Constitution allows for amendments to be passed, I don't really see the need. The 27 amendments that have been ratified since 1791 have altered the Constitution quite significantly as it is.

I wouldn't necessarily say that the Civil War put the states' rights debate entirely to rest. Certainly, it ended the extreme notion that states were individually sovereign and had the right to secede, but the debate over having a powerful federal government versus having a fair amount of autonomy for the individual states has never stopped.

 

[euromellows]

but the debate over having a powerful federal government versus having a fair amount of autonomy for the individual states has never stopped.

Indeed, and no where more so than in Texas it would seem.