John Eastman writes;
As for whether I reject the views of Justice Thomas in Term Limits, I
think Sandy mischaracterizes the opinion. I do not see it as based on a
state compact theory. In fact, I think it takes great pains to reject
that theory. See, e.g., 514 U.S. at 851 (" But it was not the state
governments that were doing the reserving. The Constitution derives its
authority instead from the consent of the people of the States."); see
also id. at 847 ("When they adopted the Federal Constitution, of course,
the people of each State surrendered some of their authority to the
United States (and hence to entities accountable to the people of other
States as well as to themselves).").
I don't know that the state compact theory requires that "state governments" be the ratifiers. I think it is more than enough that it is the consent of "the people of each State." Marshall in McCulloch seems to suggest that the consent was from a unified people that just happened to meet in state capitals, in the sense that the unified Florida electorate, say, just happens to vote in specific precincts (with a variety of ballot forms and machines) on election day.
sandy
