The biggest mistakes at Philadelphia

Knowing they were acting illegally and in defiance of the then constitution, the Articles of Confederation, and believing it all too likely the union itself might fall apart leaving separate northern and southern confederations, if any, the conventioneers wanted to minimize potential trouble and tried too hard for general acceptance.

The big states should never have bought “the Great Compromise”; the small states could not have stayed out of the union for long over that.

The free states made two awful concessions to the slave states: the fugitive slave clause and a method of calculating population for purposes of representation in the house that allowed three fifths of the slave population to be included, giving the slave owners that much more power in the congress.

And then there was the matter of citizenship.

In the un-amended constitution, the word is used only to refer to citizens of the states; nothing is said at all about citizens of the United States or the conditions for being one or for being a citizen of a state, the determination of the latter evidently being left in the states' own hands.

The same could be said of the constitution, as amended, prior to the Civil War.

I would think that means the pre-Civil War constitution simply left it to the each state to decide who was a citizen of that state, all off them being automatically citizens of the United States.

[Or, could it be no one thought, under the Articles, there was such a thing as being a citizen of the United States.

Was US citizenship a creation of the 14th?]

Taney in Dred Scott did not so take it, however, though one could imagine him doing so with such limitations as one might think were implied by the fugitive slave clause.

And in any case that question was explicitly addressed by the Radical Republicans just as soon as they could do it, after the Civil War.

The very first use of the word to refer to citizens of the Unites States is in the first sentence of the 14^th Amendment ratified in 1868, where the constitution stipulates that certain persons, at any rate, are citizens both of the United States and of the state wherein they reside.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

The text does not exclude others from being citizens, but insists these people are – the point, of course, being to insist that American blacks including the newly freed slaves could not be barred from citizenship.

[Aside.

The 15^th Amendment casts an interesting light on what people thought had and had not been covered already in the 14^th.

And Section 2 of the 14^th explicitly contemplates the possibility of a case, consistent with the 14th itself, in which freedmen or Negroes, though citizens of the United States and the states wherein they reside, would be expressly denied the vote.

That is, such denial of the vote was understood by the framers and ratifiers to be consistent with due process, equal protection, and the privileges and immunities guarantee.

/Aside.]

The other part of Dred Scott call seems to fly in the face of Article III, Section 3, point 2.

The congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

Even granted the unnecessary decision that the word “territory” refers only to the Northwest Territory, the first clause of the sentence does not stop there and instead goes on to give congress the like power over “other property belonging to the United States.”

Why would that not include the power to stipulate that ownership of people would not be allowed in US territories that were not actual states?

What is the text for such a decision, even granted it the constitution gave no power to the federal government to ban slavery or emancipate the slaves in the states?

And then there is the small matter of presidential power.

As noted, so worried were they that the union might simply fall apart that the men of Philadelphia sought, in their unauthorized and illegal new constitution, to provoke as little disagreement as possible.

Hence, no doubt, the vast mystery of the executive power granted by the un-amended constitution to the president, and his powers as commander in chief.

Given the power to declare war is assigned explicitly to congress I suppose we should agree the president lacks that power, though the explicit grant to congress of the power to suspend habeas corpus has apparently prevented nobody from supposing he does have that power.

But fighting a war is not declaring one, though allowing the president can do the former without a declaration would no doubt too much deprive its reservation to congress of point.

All the same, it is certainly possible to engage in quite a lot of quite violent military action short of war.

Does the executive power or the power of commander in chief attributed to the president by the constitution include that?

How far?

Just asking.

A bipartisan abdication