Again, I'll turn to Wilson, who stated in the PA ratifying concention,
correctly and most cogently, I think:
"I consider the people of the United States as forming one great
community, and I consider the people of the different States as forming
communities again on a lesser scale. From this great division of the
people into distinct communities it will be found necessary that
different proportions of legislative powers should be given to the
governments, according to the nature, number and magnitude of their
objects.
"Unless the people are considered in these two views, we shall never be
able to understand the principle on which this system was constructed. I
view the States as made for the people as well as by them, and not the
people as made for the States. The people, therefore, have a right,
whilst enjoying the undeniable powers of society, to form either a
general government, or state governments, in what manner they please; or
to accommodate them to one another, and by this means preserve them all.
This, I say, is the inherent and unalienable right of the people, and as
an illustration of it, I beg to read a few words from the Declaration of
Independence . . . . "
John C. Eastman
Professor of Law, Chapman University School of Law
Director, The Claremont Institute Center for Constitutional
Jurisprudence
-----Original Message-----
From: Earl Maltz [mailto:[EMAIL PROTECTED]
Sent: Friday, August 08, 2003 12:44 PM
To: [EMAIL PROTECTED]
Subject: Re: Teaching the Articles of Confederation [Was 'Re: Just for
laughs']
How does this argument square with the following facts (rather than some
post-hoc theoretical rationalization)
1. The delegates came to the Constitutional Convention as
representatives not of the nation, but of their states.
2. At the Convention, each state delegation had one vote, and a
majority was required to adopt any provision.
3. The ratification conventions were held under the authority of the
state governments.
4. The selection process was established by the each state, rather than
by any national body.
5. Madison referred to ratification as a federal rather than a national
act.
At 12:13 PM 8/8/2003 -0700, John Eastman wrote:
>As per my earlier reference to James Wilson's speeches on the subject,
>the difference bewteen the source of authority for the Articles, and
>the source of authority for the Constitution of 1787, is profound. The
>Articles were adopted by the legislatures of the states, acting as the
>delegated agents of the people of the states. (Francisco Martin's
>"treaty" claims are much more apropos here). 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. That Rhode Island and North Carolina did not
>immediately become part of this national people does not make the new
>Constitution a treaty. And here is the key point: by resorting to a
>higher authority (the national people, rather than merely the agents of
>the state people), the 1787 convention was able to offer a constitution
>that had a constitutional footing, despite the breach of the unanimity
>requirement in the Articles.
>
>John C. Eastman
>Professor of Law, Chapman University School of Law
>Director, The Claremont Institute Center for Constitutional
>Jurisprudence
>
>
>-----Original Message-----
>From: Ilya Somin [mailto:[EMAIL PROTECTED]
>Sent: Friday, August 08, 2003 11:58 AM
>To: [EMAIL PROTECTED]
>Subject: Re: Teaching the Articles of Confederation [Was 'Re: Just for
>laughs']
>
>
>Well, as I tell my Con Law I students on the first day of class, the
>only possible conclusion is that the Constitution is illegal, the
>Articles of Confederation are still in force, and I don't really need
>to teach the rest of the course:).
>
>Ilya Somin
>
>
>
>On Fri, 8 Aug 2003, Sanford Levinson wrote:
>
> > >Michael Froomkin wries:
> >
> > >When I taught con law I, I always started with the Articles. Being
> > >a
>
> > >new teacher, I had some trouble persuading the students in the
> > >first days of their second semester of first year that this was a
> > >valuable use of their time, even though it seems evident to me that
> > >many features of the federalists' Constitution are best understood
> > >as a reaction against what they saw as the flaws of the Articles.
> >
> > I begin with a discussion of the propriety of the Framers' blithe
> > willingness to ignore Article XIII of the Articles and its
> > requirement
>
> > of unanimous consent for amendment (the Rhode Island veto). What do
> > we/they think of this demonstrated infidelity to "constitutional
> > command"? Do we/they applaud the framers for doing what was
> > necessary? Does that establish a precedent for later exigencies,
> > including, say, the Louisiana Purchase, Lincoln's acts during the
> > War,
>
> > and current policies of the Administration re the "war on
> > terrorism"?
>
> > What do we mean by "constitutionalism" and how important is it,
> > anyway. All of this comes from even a brief look at the Articles
> > and the response to them in 1787.
> >
> > sandy
> >
