Not Marshall (or Joseph Story, for that matter), but Wilson. And the
difference is significant. Marshall would view the new regime as ONLY a
national government. Wilson recognized, rightly, in my view, that the
people acted in different capacities, as a national people for some
purposes, and as separate state people for other purposes.
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).").
As for Alden et al., I do agree that they are wrongly decided, and have
stated those views in print (as well as previously on this list, if I
recall correctly). See John C. Eastman, "A Seminole Dissent,"
Georgetown Journal of Law & Public Policy, Vol. 1. See also John C.
Eastman, "Altered States: A Review of John T. Noonan, Jr., Narrowing the
Nation's Power: The Supreme Court Sides with the States," The Claremont
Review of Books, Spring 2003.
I think the Calhounian states-compact view can arguably be drawn from
Jefferson's Kentucky resolution, but not from Madison's Virginia
resolution. And Madison himself distanced himself from that
interpretation later on (and I think Jefferson did somewhat, as well,
but my memory is hazy on this at the moment).
Finally, Kennedy in Thornton vs. Kennedy in Alden "incoherent"? I would
never make such a claim. :-)
John C. Eastman
Professor of Law, Chapman University School of Law
Director, The Claremont Institute Center for Constitutional
Jurisprudence
-----Original Message-----
From: Sanford Levinson [mailto:[EMAIL PROTECTED]
Sent: Friday, August 08, 2003 12:26 PM
To: [EMAIL PROTECTED]
Subject: Re: Teaching the Articles of Confederation [Was 'Re: Just for
laughs']
John Eastman write;
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
