Global Intifada

In previous posts (1, 2, 3), I questioned the democratic nature of the American government under the Constitution. In this post, I summarize the views of Ackerman and Katyal’s “Our Unconventional Founding.” [Available on JSTOR], who argue that the Constitution was devised, discussed, and ratified in a patently unlawful manner. The underlying purpose of these posts and others like it is to broaden the horizon of Muslims who are naive enough to fall for the propaganda that the West seeks the democratization and development of the Muslim world. If America is not a democracy and the very source of its laws is itself unlawful, all subsequent domestic and foreign policy that emanates from this state should be met with the highest of scrutiny. The veil of lies surrounding the current engagements in Palestine, Iraq, Afghanistan, Pakistan, Iran, Somalia, and Sudan should be lifted and the true nature of the establishment’s interests should be exposed for the military occupations and subversions that they are. It is only when the Ummah realizes that it has been invaded and occupied that effective methods of resistance will develop.

Introduction

Ackerman and Katyal’s wrote their essay as a response to Akhil Ammar Reed who argued that while the founding fathers had engaged in some inconsistent actions, every action that they engaged in was still entirely legal under the political structures and documents at the time. Ackerman and Katyal, with a tint of vanity, scoff at such an idea. They argue that the Constitutional Convention violated (a) the Articles of Confederation, (b) the State Constitutions, and (c) the Federalists utilized unlawful tactics to get anti-Federalists to acquiesce to their demands.

I. Articles of Confederation

Ackerman and Katyal begin their analysis by comparing the amendment process of the 13th and final article of the Articles of Confederation with the ratification procedures laid forth in the Constitution. Unlike the Constitution which called for only 9 states to ratify it in order to be legal, the 13th article received the unanimous consent of the 13 states. It establishes the procedures by which the Articles of Confederation may be amended:

“And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.“

Thus, the Constitutional Convention was initiated in direct contravention of the explicit wording of the Articles of Confederation which mandated that the Continental Congress propose the amendments and then send them to the various state legislatures for approval. The Constitutional Convention did not receive explicit congressional approval. Moreover, the ratification process of the “amendments” proposed by the Constitutional Convention diverged from the Articles by getting them ratified by the special conventions of each state as opposed to the state legislatures, who were put into power the people. Due to the lack of authorization, many states objected to the calling of the Constitutional Convention itself, questioning its very legality. Rhode Island refused to send a delegate at all. New York and Delaware also caused many problems. Of the three delegates from New York, two walked out. Delaware’s legislature expressly barred the delegation from agreeing to any proposal that deprived the state of its voting power under the Articles. Thus, ten delegations were urging nine states to overthrow a system that had been ratified by thirteen states!

II. State Constitutions

In addition to violating the express language of the Articles of Confederation, the proponents of the Constitutional convention ended up violating many of the state constitutions as well. The supremacy clause of the proposed Federal Constitution would have resulted in a massive change in each of the state constitutions. Such changes technically needed to be in accordance with the amendment procedures of each state. It is important to note that many of which were just as democratic if not more democratic than the amendment procedures laid forth in the Federal Constitution.

For example, both Massachusetts and New Hampshire had formulated their constitutions through a process by which a special convention made a proposal which was then approved by popular vote in town meetings. Both states’ constitutions contained clauses that allowed conventions only after a specified number of years had passed. In Massachusetts, the intervals were set for every 15 years. In New Hampshire, the intervals were set at every 7 years. Interestingly enough, New Hampshire had an automatic convocation of such conventions. Massachusetts, on the other hand, authorized such a meeting only if two-thirds of the voters through out the state agreed to do so. Pennsylvania required approval of two-thirds of a specially elected body of censors that met every septennium to review the operations of the government.

The 1787 calls for conventions came at the wrong time for all three states. In Pennsylvania, the Council of Censors had rejected a convention in 1784 and the next meeting was not due until 1791. In New Hampshire, the next legal convention would have been in 1791 as well. In Massachusetts, it was 1795.

Moreover, in all three states, the convention’s job was to make constitutional proposals and not to ratify the initiative made by others from outside of the state, let alone a massive re-organization of the political system itself. More importantly, the constitutions of Massachusetts and New Hampshire explicitly subordinated themselves to the Articles of Confederation. Thus,these three states were blatantly violating their state constitutions by attending the ratifying conventions.

III. Unlawful Tactics

The tactics being used by Federalists did not go unnoticed. John Quincy Adams said:

“But to crown the whole of the 7th: article, is an open and barefaced violation of the most sacred engagements which can be formed by human beings. It violates the Confederation, the 13th: article of which I wish you would turn to, for a complete demonstration of what I affirm; and it violates the Constitution of this State, which was the only crime of our Berkshire and Hampshire insurgents [in Shays’s Rebellion].” (487)

In other words, he analogized that the proposals made by the Constitutional Convention were no different than the methods used by the insurgents that participated in Shay’s Rebellion since both groups of people violated both the Articles of Confederation and the Massachusetts state constitution.

The concern that the Constitutional Convention was subverting the legal system is best expressed by the failure of the Annapolis Convention that had occurred in September 1786. Only nine delegates showed up, and four states refused to come at all. South Carolina refused on the ground that it had “an appearance of either revoking or infringing on those powers” granted to Congress that the legislature had voted when it supported the Five Percent Impost. Connecticut couldn’t make up its mind. In fact, Maryland, the state in which the convention was being held, rejected sending a delegate. The Maryland Senate passed the following resolution:

“[T]he meeting proposed may be misunderstood or misrepresented in Europe, give umbrage to Congress, and disquiet the citizens of the United States, who may be thereby led erroneously to suspect, that the great council of this country wants either the will or wisdom to digest a proper uniform plan for the regulation of their commerce. The power must be given to Congress to effectuate any system which might be adopted by the proposed meeting of commissioners.”

The Federalists had no legal argument to justify their transgression of the Articles of Confederation and the state constitutions. Illegal conventions were acceptable during the American Revolution because Americans had no political recourse since the Crown refused the colonies’ request for representation in the parliament, forcing the colonists to break the law and meet in convention. Thus, the only way to legitimize the Constitution was through an ex post facto ratification by the “people.” However, many of the tactics that were utilized were not only unethical, but downright illegal.

For example, Federalists in Pennsylvania demanded an immediate call for a state ratifying convention. However, the Pennsylvania constitution required a six-month pause between the time amendments were proposed and the time a convention would be elected. The Federalist majority in the state House ignored these legal restrictions and pushed forward with a plan to hold an election within 9 days. A Federalist mob seized state representatives James M’Calmont and Jacob Miley by violently breaking into their houmes, tearing their clothes, and dragged them through the streets of Philadelphia to the State House all the while abusing and insulting them while the House formed to finish its resolutions. Such practices hardly sound like the actions of law-abiding citizens.

In New York, the state Senate voted 11 to 8 to accept the Assembly’s call for a June 17 convention with balloting for delegates on April 29. The election resulted in an anti-federalist victory: 46 anti-federalists compared to 19 federalists were elected.

In Rhode Island, the legislature refused to call a convention and decided to put the Constitution to the people in a special referendum which defeated it by a vote of 2,708 to 237. Rhode Island wouldn’t ratify the Constitution until it had already been ratified by the 9 out of 13 rule (which made the Constitution a binding legal document if 9 out of the 13 states ratified it) and the first Congress threatened to embargo tiny Rhode Island.

Thus, four states clearly rejected the Constitution at the outset. Even with the 9 state rule, the Federalists were hardly winning. The crucial turning point came in Massachusetts where Federalists were outnumbered by opponents at the convention, which began on January 9th. The key vote in this state was John Hancock. The Federalists effectively bribed him by offering him the position of either Vice President or even President if Virginia didn’t ratify in time to put forward Washington. The Federalists also threw down that they would offer a series of amendments as soon as possible after its establishment. With Hancock in their back-pockets and promises to approve of a Bill of Rights (which was already contained in the Articles of Confederation and many state constitutions anyway), the Federalists attained victory in Massachusetts with a final vote of 187 to 168 with 9 abstentions.

Conclusion

Thus, the Federalists fought hard and dirty in many of the states by use of violence, bribery, empty promises, and economic sanctions.

Of course, one may argue that the Constitution is a legal document because it has been approved by the people instead of the respective state legislatures such as the scheme under the Articles of Confederation. This argument, first clearly articulated in the landmark decision McCulloch v. Maryland, has several flaws.

Firstly, the state constitutions and ergo their legislatures were, at times, more democratic than the Federal Constitution.

Secondly, the total population that had participated in the ratification process was a pathetic 5%, compare that to the ratification of the Pennsylvania state constitution which was 10% of the population.

Thus, the Federal Constitution sets up not only an undemocratic scheme, but did so in a patently illegal and undemocratic manner as well. Arguing that it was a legal document and democratic after the fact is like raping someone and then getting married to the victim in order to not produce a bastard child. The ex post facto justification does not cover up the crime.

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