The Constitution, on the
other hand, was adopted by a national people, as a charter for how they were going to govern themselves. The ratifications were made by the people in their states (where else would they have been made, as one founder noted), but the very act of ratification made them part of a national people, engaged in constitution-making rather than treaty-making.
Two questions: Does John view Marshall as a "founder," since I assume it is he whom John is citing? Does this mean that John rejects the views of Thomas et al. in dissent in the term limits case as to the basis of the Constitution in state compact? And a third, bonus, question: If he does indeed accept the Marshallian understanding of constitutional ontology, then does this have implications for the legitimacy of the "state sovereignty" decisions, such as Alden etc., which also seem to rest on the Kentucky-Virginia resolution view of ratification? (A double bonus question is whether Kennedy simply changes his mind between his Thornton conurrence and his discovery of state dignitary interests in Alden or, rather, is simply incoherent in terms of constitutional metaphysics.)
sandy
