Re: Presidents and the Court
You might look at Emily Van Tassel and Paul FInkelman, IMPEACHABLE OFFENCES: A Documentary History of Impeacement (CQ PRESS) Quoting [EMAIL PROTECTED]: On impeachment, I have contemporary discussion of the issue in the Chase and Johnson impeachments in my Constitutional Construction book. I'm away from the office, where I might be able to locate a more definitive modern scholarly treatment, but you might consult Michael Gerhardt's book on impeachments. I think I might have discussed the issue briefly in my Policy Review piece on the aftermath of the Clinton impeachment (2000, I think -- its online). keith - Original Message - From: Eastman, John [EMAIL PROTECTED] Date: Wednesday, October 1, 2003 4:58 pm Subject: Re: Presidents and the Court Thanks, Keith. I almost sent the note just to you! But I needed it quickly, so on the chance you were not on e-mail, sent it to the whole list. Cheers, John -Original Message- From: Keith E. Whittington [EMAIL PROTECTED] Sent: Wed 10/1/2003 2:40 PM To: [EMAIL PROTECTED] Cc: Subject: Re: Presidents and the Court That would be Andrew Jackson in response to Worcester v. Georgia, and it is generally regarded as apocryphal (though somewhat consistent with other things that he did say, predicting that such a decision would be unenforceable). He did write in a letter, the decision of the supreme court has fell still born and they find it cannot coerce Georgia to yield to its mandate. For discussion, see Charles Warren, The Supreme Court in United States History, and Richard Longaker, Andrew Jackson and the Judiciary, Political Science Quarterly (1956). Keith Whittington -Original Message- From: Discussion list for con law professors [EMAIL PROTECTED] Behalf Of Eastman, John Sent: Wednesday, October 01, 2003 5:33 PM To: [EMAIL PROTECTED] Subject: Presidents and the Court I seem to recall a colorful claim by some president or other, opposed to a particular court ruling, along the lines of: The Court has issued its ruling, now let it enforce it. Can anyone point me to the specific President, case, and citation for this? Perhaps Truman, in response to the Steel Seizure decision? Many thanks, John Eastman
Re: First Amendment/Universities question
When one enters a religious setting perhaps it is permissible to require certain dress (hats on in a Synagogue; hats off in a church). Since Football in the State Religion of Ohio, it seems appropriate for the State to be able to ban all political buttons, etc, on they ground that they will interefere with the proper decorum for serous worship. You can wear the logo of GOD (in this case what ever mascot Miami of Ohio has) or the logo of satan (whatever logo the opponent has, or as a default, anything to do with Ohio State). Seen in this context, the issue is one of church and state, not free speech. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Lynda Dodd wrote: I teach political science constitutional law classes at Miami University of Ohio (a public university). The maintenance workers are currently on strike, and many faculty and students are wearing armbands and buttons to support them. I'm pasting below a news account, describing the university's attempts to require all those attending a football game last weekend to remove any armbands or buttons. Although the university does check i.d.'s at the entrance to the stadium, students do not pay for tickets. Wouldn't the stadium event count as a public forum? I'm not as familiar with this area of First Amendment law as I should be, and I doubt I'll quickly find a fact-pattern that is on point. It seems to me that the university here is way out of line. I'd appreciate any help with this question, as I know many students will be asking questions about this all week. [snip]One of my students sent me an email today and told me that during the football game on Saturday she and several others were not permitted in the game with their green armbands on, with their pro-union shirts, and one was forced to remove a button promoting Howard Dean. She said that she asked the administration to put it in writing, and they would not do it, so they filmed this. Here is a link that appeared in the Middletown paper. Note the comment by Richard Little who said that the "university does not allow group promotions into the stadium." Then noone with greek representation? Noone with the university logo? http://www.middletownjournal.com/news/newsfd/auto/feed/news/2003/09/28/1064724029.19830.3624.2651.html;COXnetJSessionID=14sGXkRiIY8DFsjo663LxPyhgURhxfKb7Ccq0i02h4lU1x1d0H8V!-284502201?urac=nurvf=10648894784320.8970818082985101 CK [snip]
Re: lincoln and colonization
Thanks. The "colonization laws" were of course voluntary and almost blacks took advantage of them. My sense is that they were mostly to placate voters back home and border state Unionists. No one implemented them. As for Ben Butler, he is not always the most accurate reporter of events; hard to know what Lincoln told him (if anything); what he heard; and what the context was. "Reminiscences" are often tricky sources. What is interesting about Lincoln is that he often talked about colonization, especially to racial conservatives, but never lifted a finger to do anything about it. He surely did not Butler's "report" to know it was impossible to accomplish. Some sort of colonization in North America -- a kind of Indian Removal program -- might have been partially successful, but Lincoln never pushed for that either. Paul Finkelman Barksdale, Yvette wrote: HI Paul DuBois' source was Wesley, "Lincoln's Plan for Colonizing the Emancipatd Negro", Journal of Negro History, IV ,pp. 12 -13 - It turns out it is available on line - http://dinsdoc.com/wesley-1.htm . Wesley cites as a source - Butler's Reminiscences, pp. 903 - 904. Re colonization laws - Du BOis reports that 1) in an April 16, 1862 act which abolished slavery in the District of COlumbia, Congress appropriated $100,000 voluntary black emigration - $100.00 each. The act also authorized the President to "make provision for trasnportation, colonization and settlemtn, in some tropical country beyond the limits of the U. S. of usch persons of the AFrican race, made free by the provisions of this Act" 2) that by an Act of July 17, 1862 President was authoirzed to colonize blacks made free by the confiscation acts. and 3) He also refers to a House bill, not enacted, which would have appropriated $200 million: (twenty million for colonization and the remaining 180 million for purchase) of $600,000 slaves of Unionist owners in Border states. yb * Professor Yvette M. Barksdale Associate Professor of Law The John Marshall Law School 315 S. Plymouth Ct. Chicago, IL 60604 (312) 427-2737 (email:) [EMAIL PROTECTED] ***** -- From: Paul Finkelman[SMTP:[EMAIL PROTECTED]] Reply To: Discussion list for con law professors Sent: Tuesday, September 16, 2003 8:12 PM To: [EMAIL PROTECTED] Subject: Re: lincoln and colonization The evidence on Lincoln and colonization is very mixed and not nearly as clear as DuBois would have us believe. Most Lincoln scholars doubt that he took colonization seriously; on the other hand, he well understood the level racism in America; Lincoln was also a master of political misdirction; in the sense that he might very well have asked for this information, only to use it to prove that colonization impossible, which he already knew. There is no communication from Lincoln to Butler on this subject for 1865 in The Collected Papers of Abraham Lincoln. This does not mean he did not have this discussion with Butler, but I would be curious what the source is.I do not have handy copy of DuBois's Black Reconstruction to check his source. By the spring of 1865 Lincoln was advoctating suffrage for, at a minimum, black veterans. I have no idea what the "colonization laws" were that Yvette refers to. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Barksdale, Yvette wrote: For a discussion of LIncoln and the colonization movement see W. E. B. Du Bois Black Reconstruction in America 1860 - 1880, pp. 145- 149 .(Touchstone ed. 1995), arguing that LIncoln was strongly in favor of colonization and was dissuaded only by the practical difficulties. For WEB Du Bois states that as late as 1865 Lincoln said to General Butler "...what shall we do with the Negroes after they are free?. I can hardly believe that hte south and north can live in peace unless we get rid of the Negroes," Lincoln then requested Butler provide practical estimates of the cost of exporting the freed slaves. Butler responded there were not enough ships to export African -Americans blacks back to Africa fast enough to keep up with the birth rate of new children born here. The colonization laws were later repealed after African-Americans lost interest in leaving. yb -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Re: Ninth circuit and the recall
John Eastman says, This reeks of raw partisan politics. No court should participate in it. One might ask John Eastman what he thinks Bush v. Gore was all about? It is interesting to listen to conservatives complain as they are being hoisted by their own petard. I suppose the big difference here is most of us are not terribly invested in whether California has a recall election now, or March, or never. It is also not at all clear why this is raw partisan politics. A delay may keep Gray Davis in office a few more months (score one for the Democrats) but will bleed the resources of Bustamante (score one for the Austrian weightlifting team); a delay may reveal the weaknesses of Arnold's lack of any political experience or knowledge (score one for McClintock). The prognosis for the national economy is not great as the Bush programs push more jobs offshore and more Americans out of work; this will only make California's economy worse and hurt Davis more (score one for the recall movement). Given all this, I am not sure who wins or loses in a delay, and therefore I can't figure out what the raw politics is all about. It is not, after all, as though the Court were declaring that there cannot be a recount of all the votes in a highly contested election with clearly flawed voting machines. That might be seen as reeking of partisan politics especially if the people making the decision were allies of one side of the process and had been appointed by the father of one of the candidates involved. But here the supports and opponents of recall are hardly in that situation. Meanwhile, the rest of us can sit back and enjoy the side-show. Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Re: Error rates
Here in Oklahoma we have very sophisticated optical readers; to vote you just fill in the space between two lines with a pen and feed the ballot into the reader; if is it not filled out properly the machine spits it back out; and if you screwed up you can get a new ballot. My guess is that these machines are not that hard to install and operate. Paul Finkelman Eugene Volokh wrote: Paper ballots? Frank raises a good point, but let me ask this: Even if the new electronic voting machines generally have a lower error rate than punch cards, do we really have reason to believe that the *first time they're used* they're likely to have a lower error rate than punch cards? This isn't, of course, an argument against switching machines, since the decision to switch will theoretically bear fruit over many elections to come -- but as I understand it, the premise of the Ninth Circuit decision is that the Constitution requires a switch in this election, because the current machines are error-prone *and using the new ones will be less error-prone*. Does this in fact seem likely? Eugene -Original Message- From: Frank Cross[mailto:[EMAIL PROTECTED]] Sent: Tuesday, September 16, 20039:41 AM To: [EMAIL PROTECTED] Subject: Paperballots? Will paper ballots really fix this problem? They are going to have an error rate, all systems do. Anystate that uses two systems will have differentialerror rates for different voting systems. Indeed, even if a state used a single uniform system,the inevitable differences in its application will produce different errorrates. Theoretically, I think this is anirresolvable mess. One could establish some de minimis acceptable difference invote counting systems, but I don't see that rule inBush v. Gore. I'm not sure it could be pulledfrom Bush v. Gore, because I don't think there was any evidence of greater than a de minimis difference there. Frank Cross Herbert D. KelleherCentennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin,TX 78712 -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Re: Margin of Error vs. Margin of Victory
The simple answer is that if the state uses the same type of machine everywhere, the error rate will be the same and therefore there will be "equal protection" for all voters. Thus, all elections are not suspect; only those that use different kinds of ballot boxes statewide; since the popular vote does not matter in a presidential election (constitutionally at least); then it would not matter if state "A" has a modern system of optical readers; state "B" uses punchcards; and state "C" uses paper ballots, as long as the system is the same for the entire state. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Robert Sheridan wrote: Message According to excerpts from the Ninth Circuit opinion, a significant factor in halting the California recall election for months is that use of punch-card ballots may produce 40,000 erroneous votes in an election where the margin of victory may be less than 40,000 votes. Therefore the election must be called off because it is better to be safe than sorry. I suppose that to the extent this reasoning is sufficient to cancel an election, or delay it unexpectedly and perhaps unduly, we can expect this sort of challenge in every election from now on regardless of balloting technique. In the name of more democracy we seem to beachieving less, based onconjecture and speculation, one group'serror and vote projections vs. another's, uninfluenced political calculations, of course. The people, of course, were led to expect an election. Isn't this the argument for HAVING the election in the first place? Why wasn't the order to the California Secretary of State to see that an election was conducted that was NOT "constitutionally infirm?" And let HIM petition the court for more time if necessary. Only SOME of the counties, as I understand it, use punch card ballots. HE is reported to have been working to insure a proper election. Was any evidence adduced proving how long it would take for those punch-card counties to come up to snuff by election day? As I recall, the California Supreme Court refused to touch this election on political question grounds. Talk about the federal system wading into the political thicket with both feet on the basis of upholding "rudimentary requirements of equal treatment and fundamental fairness" for each voter Is the Ninth Circuit more sensitive to voting rights than the California Supreme Court, or less sensitive to the need to run the race on the day announced? Considering the amount of preparation and expense that the candidates invest in an election, playing the game on Super Bowl Sunday, not some other day months away,seems an important value to me. Robert Sheridan SFLS [EMAIL PROTECTED]
Re: absentee ballots? and goose and gander constitutional politics
This might be true, in theory, but if the machines are mainly used in areas that supported Davis in the last election (as I believe L.A. did) then the bad count would presumably only have hurt the winners total and not affected the election. To some extent, this might be a practical issue rather than a legal one; if there was an "undercount" in counties that supported Davis, then there was "not harm" done, even though of course any undercount harms the democratic process. Thus, it might be hard to argue that Davis's election was illegitimate. On the other hand, if the Davis election was close, and the ballots were in areas hostile to Davis, then we would imagine, after Bush v. Gore, that Davis opponent would have raised this issue. Here it is a preemptive strike. No one can know how this election will turn out; or where the support for anyone really is. Does Arnold get a regional boost because he lives in Southern California? If so, they he should welcome more precise voting machines in his county or residence. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Blumstein, James wrote: I have a question about the 9th Circuit panel decision... As I understand it, the constitutional infirmity relates to different rates of error in the votingmachines that some counties use. There is disproportionate project disenfranchisement based on county of residence. I do not want to raise the issue of the appropriateness of the analogy to Bush v. Gore. What I want to understand is whether there is anything about the Oct. 7 recall election that differs from the conditions that existed during the immediate past elections? If the answer to that question is "no," as I suspect, does that also then call into question the outcome of previous elections? Or is there a different standard that would apply? The irony here is that the panel may have proven too much, since its decision could lead Davis opponents to question the constitutional validity of his election last year, based on the theory that the panel embraced for delaying the recall. Does this follow? JFB -Original Message- From: Jonathan H. Adler[mailto:[EMAIL PROTECTED]] Sent: Tuesday, September 16, 2003 2:01PM To: [EMAIL PROTECTED] Subject: Re: absenteeballots? and "goose and gander" constitutional politics Itseems that the Ninth Circuit will have the opportunity to follow Prof.Gillman's advice and adopt Prof. Solum's analysis. The wires arereporting that the Ninth Circuit has granted en banc review of thecase. JHA --- Jonathan H. Adler Assistant Professor of Law Case Western Reserve University School ofLaw 11075 East Boulevard Cleveland, OH 44106 ph) 216-368-2535 [EMAIL PROTECTED] -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED]]On Behalf Of howard gillman Sent: Tuesday, September 16, 2003 1:19 PM To: [EMAIL PROTECTED] Subject: Re: absentee ballots? and "goose and gander" constitutional politics Absentee ballots were an issue in the Florida litigation. Note, though, that in Florida the absentee ballot issue was tied in (politically) to the rights of our brave men and women in the armed services. Note, then, how the three judges handled that issue in this case: "Further, many members of the armed forces and California national Guard did not fill out absentee ballot requests because they did not expect to be overseas for this length of time and did not anticipate a special election. A short postponement of the recall election will serve the public interest by permitting California men and women who are serving our country overseas and who did not anticipate an October election more time to request and submit absentee ballots, thus allowing them to enjoy one of the fundamental rights for which they put themselves in harm's way -- the right to vote." I guess this means that the same folks who decried Gore for being anti-military in 2000 should (apparently) denounce October recall supporters for being anti-military. It seems obvious that this is classic "good for the goose is good for the gander" constitutional politics. I agree with Eric Hasen that this is a straightforward application of Bush v. Gore (http://electionlaw.blogspot.com/). There are a lot of complaints one can have about the decision, especially about whether we should be SO fastidious about ensuring the equal treatment of ballots, but then again, the Bush v. Gore majority was
Re: Ninth circuit and the recall
Bcause people who run elections -- that group of state officials -- like to run elections? It is their job to run elections, so it is their job to appeal? Otherwise they implicitly conceded that their way of running elections is deeply flawed (although perhaps they have already conceded that in court). Paul Finkelman Sanford Levinson wrote: The AP Wife story concludes as follows: State officials, who conceded in court documents that the punch-card voting mechanisms are ``more prone to voter error than are newer voting systems,'' were likely to appeal the case to the U.S. Supreme Court. Why in the world does anyone believe that state officials would necessarily want to appeal this case? -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Re: Ninth circuit and the recall
alternatively, if Davis could run then Bustamante might not run; I raise this issue not because I am interested in which strategy would elect a particular party, but for more theoretical reasons; The fact is, the Progressives by and large were anti-democratic. they did not trust the people; hence if the people elected someone they could try to use their wealth and education to overturn that election through a recall. Paul Finkelman Ilya Somin wrote: I think Mark's points here are mostly well-taken. But it is important to see their systematic implications. Sandy's concern that a candidate might be elected by a plurality despite the fact that the majority of voters strongly dislike him/her is an objection not only to the recall but to all first-past-the-post electoral systems. But what mitigates (though not completely solves) the problem in most such systems is the strong incentive of political factions to form coalitions to avoid it. That is why we have 2 parties in the US rather than 4 or 6 or 8, and most other first past the post electoral systems also lead to political systems which have only 2 major parties. In the case of the California recall, CA Republicans and independents must decide whether they dislike the prospect of a Bustamante governorship enough to form a coalition around the Terminator. If many Republicans choose to vote for McClintock despite knowing that it makes Bustamante's victory more likely, that is a sign that they are not THAT fiercely opposed to a Bustamante governorship, not enough to make compromises to avoid it. As to Gray Davis' not being able to run in Part 2, it is actually a benefit to the Democrats. If both Davis and Bustamante were on Part 2, they would split the Dem vote and hand the governorship to Arnold. If Davis was the only major Dem candidate, he would probably poll fewer votes than Bustamante alone will because of Davis' extreme unpopularity (which of course is what led to the recall in the first place). In fact, a good reason for NOT allowing the sitting governor to be a candidate on Part 2 of the recall is to allow his Party to distance themselves from him by running an alternate candidate, if they so choose. They can't as easily do this if the sitting Gov is still in the game. Furthermore, there is stronger reason to believe that a sitting governor who is rejected by a majority in a binary recall vote really is anathema to a majority of voters than that the same is true of a candidate who gets only a plurality in a multicandidate vote. Given the extreme rarity of recalls and voters' bias in favor of incumbents, a governor actually rejected in a recall (Davis would only be the second in the history of the US) would have to be highly unpopular indeed. For these reasons, I don't think that either the absence of a runoff or the rule against letting Davis run on Part 2 make the system irrational in a constitutional sense or even highly undesirable, though I think a runoff would be a good idea on policy grounds. Ilya Somin On Mon, 15 Sep 2003, Scarberry, Mark wrote: I appreciate Sandy's agreement, in another post responding to Ed, that paper ballots would seem to solve the problem. With respect to the question Sandy poses for me about the rationality of the process of electing a successor to a recalled governor: I suppose the reformers thought that the Lt. Governor would likely be part of the same "machine" as the governor. The reformers were not so concerned about individual politicians as they were about political machines that were in the pocket of the railroads, etc. That, I think, is why the California Constitution does not provide for the Lt. Gov. to succeed a recalled Governor. In this case, many of those who think Gov. Davis is controlled by public employee unions and other interest groups think Lt. Gov. Bustamante is even more controlled by them; they note his taking of $2 million from Indian gaming interests in recent days. The process for electing a successor is not, in theory, perhaps very good. But "as applied" in this election it's quite reasonable. Assuming Gov. Davis is recalled, either Lt. Gov. Bustamante will be elected, or Arnold Schwarzenegger will be elected. There is perhaps some slight possibility of State Sen. Tom McClintock being elected (perhaps if "Ahnold" dropped out for some reason). If the Lt. Gov. is elected then this will be a result in line with Sandy's suggestion. If one of the others is elected it will be because the voters in this heavily Democratic state have rejected the Democratic establishment and given more votes to a Republican (despite Republican voters being split between two candidates) than to the only serious Democrat in the race. As a practical matter, the only way Arnold can be elected is if he can poll more votes than the establishment Democrat and more votes than the conservative Republican. He might not have a mandate, but he would have cons
Re: Did the U.S. Lose the War of 1812?
More or less a draw; we burned Toronto (not much of a city yet); they burned Washington (not much of a city yet). We won a few battles the great lakes. Main result is that Brits. stopped impressing our sailors and Britain concluded we were "here to stay" and could not be destroyed; real losers were probably Spain (we shortly thereafter took all of Florida) and the Indians in the Southeast; with war over Andy Jackson could concentrate on his *real* enemy, the Indians and begin moving them out; Indian removal begins during the war and continues for next 25 years or so. Wars against Creeks and Seminoles lead to much destruction of Indians and Brits are not there to either help Indians or at least talks some sense and humanity into the US. Also, we end up with an unsingable national anthem, and the president's mansion becomes the "White House" after it takes tons of white paint to cover soot left on house by burning of Washington. and partial burning of Pres's house. Paul Finkelman Robert Justin Lipkin wrote: I read recently that the U.S. lost the War of 1812 despite France's efforts to assist us in resisting England's belligerence. Are these contentions true? (They do not conform to my recollection of Junior High School history.) Since these questions are not entirely germane to the purposes of this List and since the answers may be known to everyone but me, I'd gladly receive replies off-list. Thanks. Bobby Lipkin Widener University School of Law Delaware -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Re: Did the U.S. Lose the War of 1812?
More or less a draw; we burned Toronto (not much of a city yet); they burned Washington (not much of a city yet). We won a few battles the great lakes. Main result is that Brits. stopped impressing our sailors and Britain concluded we were "here to stay" and could not be destroyed; real losers were probably Spain (we shortly thereafter took all of Florida) and the Indians in the Southeast; with war over Andy Jackson could concentrate on his *real* passion, forcing Indians off their land; Indian removal begins during the war and continues for next 25 years or so. Wars against Creeks and Seminoles lead to much destruction of Indians and Brits are not there to either help Indians or at least talks some sense and humanity into the US. Also, we end up with an unsingable national anthem, and the president's mansion becomes the "White House" after it takes tons of white paint to cover soot left on house by burning of Washington. and partial burning of Pres's house. Paul Finkelman Robert Justin Lipkin wrote: I read recently that the U.S. lost the War of 1812 despite France's efforts to assist us in resisting England's belligerence. Are these contentions true? (They do not conform to my recollection of Junior High School history.) Since these questions are not entirely germane to the purposes of this List and since the answers may be known to everyone but me, I'd gladly receive replies off-list. Thanks. Bobby Lipkin Widener University School of Law Delaware -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Re: Non-Governmental Emancipation of Slaves Say what?
As I said, "as far as I know" he did not manumit his slaves; I stand corrected then on that issue; if in fact he did free them in his will. It is good to know and actually fits with my chapter on slavery and the Federalists, where I have argued that Federalists were more like to free slaves than Jeffersonians. I just did not recall Marshall's position. I find Marshall's jurisprudence on slavery to be sadly lacking, however. There are a number of cases that get to the court from the District of Columbia. Marshall is no friend of freedom in those cases. See for example Mima Queen and Child v. Hepburn. Justice Duvall's dissent is a much better approach, but it is one that would have undermined slavery. That was a road Marshall would not take. Similarly, see his rather cramped opinion in Scott v. Negro Ben. Paul Finkelman -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Keith E. Whittington wrote: This seems somewhat unfair to Marshall. According to Jean Smith's biography, Marshall, who was not a planter (and thus had little direct stake in the slave economy), owned only a few domestic servants during his lifetime and provided for the manumission of his primary slave in his will (Smith is unclear whether Marshall owned any other slaves at the time of his death). In his private law practice, Marshall also appears to have represented slaves in a handful of pro bono appellate cases, including at least one testing and extending Virginia's manumission statute. kew -Original Message- From: Discussion list for con lawprofessors [mailto:[EMAIL PROTECTED]]On Behalf Of Paul Finkelman Sent: Wednesday, September 10, 2003 11:17 AM To:[EMAIL PROTECTED] Subject: Re: "Non-GovernmentalEmancipation of Slaves" Say what? This is a nice way ofsaying that masters should free their slaves without government intenrference.Many Virginians did this in the revoutionary period -- Washington freeall his in his will; Robert "Councillor" Carter freed over 500 one Sundayafternoon after returning from Church; George Wythe freed his in his will;Robert Coles (later Gov. of Illinois) took his slaves to Illinois where hefreed them. The Va. free black population grew from about 2,000 in 1780to about 30,000 by 1810, mostlly through voluntary emancipation. As faras I know, Marshall DID NOT take his own advice, nor of course did hisnemesis, the Master of Monticello. I have written a bit about this inthe last two chapters of my book, SLAVERY AND THE FOUNDERS: RACE AND LIBERTYIN THE AGE OF JEFFERSON (M.E. Sharpe, 2nd Edition, 2001). We can onlywonder what the history of the nation would have been like if Jefferson,Madison, Monroe, and others had followed up on their ideological claims aboutall people being "endowed" with such inalienable rights as "liberty." -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] RobertJustin Lipkin wrote: I recently read that John Marshall advocated the non-governmental emancipation of slaves at least in his home state of Virginia. What does this mean? Was such a strategy ever taken seriously? If so, how would it work, simply by moral suasion? Economic or other 'coercive' influences? Did this strategy exist in any other state? Was it ever a serious movement? Who were its most prominent spokespersons? Any information concerning this issue would be appreciated. Thanks. Bobby Lipkin Widener University School of Law Delaware
Re: Non-Governmental Emancipation of Slaves Say what?
I do not believe the Colonization society ever purchased slaves to be emancipate in Africa. Rather, it allowed some msters to manumit slaves and send them to Africa and it tried to convince free blacks in the US to leave their homeland and move to Liberia. It was generally hated by most blacks and white opponents of slavery and was generally seen as a movement that was anti-black, rather than antislavery. The fact that lifelong slaveowners were involved (Clay, Washington,) illustrates the problem. Despite this some well meaning individuals were colonizationists, seeing it as the only solution to America's racial problem. Paul Finkelman -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Keith E. Whittington wrote: Marshall was a supporter of colonization, including raising money from the federal government and other sources to purchase the freedom of slaves and facilitate their immigration to Africa. He was one of the organizers of the American Society for Colonizing the Free People of Color in 1816 (Bushrod Washington was its first president, and it included such luminaries as Henry Clay, Andrew Jackson, and Daniel Webster) and later formed the Virginia Society for Colonization. Liberia was the destination point in Africa. Keith Whittington -Original Message- From: Discussion list for con lawprofessors [mailto:[EMAIL PROTECTED]]On Behalf Of RobertJustin Lipkin Sent: Wednesday, September 10, 2003 10:55AM To: [EMAIL PROTECTED] Subject:"Non-Governmental Emancipation of Slaves" Say what? I recently read that JohnMarshall advocated the non-governmental emancipation of slaves at leastin his home state of Virginia. What does this mean? Was such a strategy evertaken seriously? If so, how would it work, simply by moral suasion? Economic or other 'coercive' influences? Did this strategy exist in any other state? Was it ever a serious movement? Who were its most prominentspokespersons? Any information concerning this issue would beappreciated. Thanks. Bobby Lipkin Widener University School ofLaw Delaware
Re: Non-Governmental Emancipation of Slaves Say what?
Bobby: I think what you say below is not correct. After all, a number of states passed laws during and immediately after the Revolution to end slavery WITHOUT deportation. Similalry, in 1782 Virgiania allowed masters to manumit slaves without forcing the ex-slaves out of the state (Va. later changed its mind on this issue a number of times. In the period 1780-1817 there were four possible responses to slavery. 1: outright abolition. End it. Mass, Vt. and the new states, Maine, Ohio, and Indiana took this position. 2: gradual abolition. The children of slaves would be born free and the institution would literally "die out" as the old slaves died out. Pa, Conn., RI, NY and NJ passed such laws, although all of them eventually ended slavery outright later on. Judge St. George Tucker of Va. proposed such a program for Virginia in an elaborate pamphlet that he published and circulated at his own expense. He also included this in his 5 volume, Tucker's Blackstone. No other leader of Va. endorsed this plan, even though it would have taken almost a century to end slavery under it; but such a plan would have been a great start. While in the state legislature during the Revolution Jefferson, as chair of the committee to revise the laws, sat on a bill for such a program and refused to allow it to come to the floor for debate. He later claimed to support it in his NOTES ON THE STATE OF VA. but this is a self-serving explanation that was completely dishonest even at the time he wrote the NOTES. (for more on that, see SLAVERY AND THE FOUNDERS). 3. allow private manumssion. Va adopted such a law in 1782 (after TJ left state government) and hundreds of masters voluntarily manumited their slaves. Under this law manumitted slaves were allowed to stay in the state. 4. prohibit all in-state manumissions. Va. later took this position as did most of the deep South except La. and SC. Under such laws either manumssion was absolutely prohibited or it was allowed, but the manumitted slaves had to leave the state after a certain period of time (say a year). Under these laws masters could still take their slaves to free states, or send them to Africa, but could not manumit them within their state. The colonization society (begun in 1817) was mainly designed to remove blacks from the US. A few masters also used the society to free their slaves, and over the next 43 years a few thousand (at most) slaves were freed on condition the Colonization Society took them to Africa. Most free blacks in the US opposed colonization as a racist attempt to force them from the country of their birth. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Robert Justin Lipkin wrote: Can one justifiably infer from this discussion that the distinction between governmental and non-governmental emancipation of slaves is not a distinction between the government passing laws (or proposing amendments) abolishing slavery as opposed to non-governmental suasion toward the same end? Rather, it is a distinction between the government deporting slaves, on the one hand, and private parties doing so on the other. Is this correct? Bobby Lipkin Widener University School of Law Delaware
Re: Non-Governmental Emancipation of Slaves Say what?
Most of the colonies prohibited manumission, so the default, non-action, was to not allow private manumssion. My 3rd responses -- allowing private manumission -- was probably what Marshall thouight should happen. To your final question, the answer is probably no! No, he did not advocate anything beyond private acts of good will. Louise's comment is correct that thousands of masters in the South, between 1872 and 1861 free their own slaves, but these were drops in the bucket and had no affect on the institution and little on the growth of the slave population or the spread of slavery. Paul -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Robert Justin Lipkin wrote: I find Paul's explanation, as well as Keith's (and I'm sure I'm leaving out others--for which I'm sorry) to be very helpful. However, one problem (for me) lingers. If John Marshall believed slavery should be abolished but not by governmental action, what did he mean by this and how did he think it would operate? Paul's four repossess to slavery all seem to require government action of one kind or another. Abolition, outright or gradual, allowing private manumission, or prohibiting all in-state manumissions, all require law. If so, Marshall could not, if he was committed to non-governmental emancipation, embrace any of these. Moreover, what non-governmental emancipation is even conceivable? More importantly, at least for my present purposes, did Marshall (or others) advocate some intelligible form of non-governmental action for freeing slaves, other than the good will of slave owners? Bobby Lipkin Widener University School of Law Delaware
Re: takings/procedure question
Could the state bind citizens? Would a citizen have a right to bring an action under your theory? Does this include giving teh company a right of eminent domain to take from other people? What would their interests be? What if it the state has a law like one in California that allows citizens under some situations to act as an private attorney general to sue a company for unjust enrichment or for other claims? Paul Finkelman -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Marc Poirier wrote: Question: Suppose a state (one of the United States, that is) were wooing a company to locate a big new facility in the state. In addition to other usual kinds of concessions, the company required the state to agree by contract to the following proposition: should any disputes involving the Takings Clause of the United States Constitution arise between the company and the state, with regard to actions taken by the state or its political subdivisions that affect the facility, the dispute will be submitted to binding arbitration, conducted under standard principles of commercial arbitration, with no subsequent judicial review on the merits. Would such an arbitration clause be enforceable? The context in which I ask is an article I am writing on provisions regarding indirect expropriation in NAFTA and other free trade agreements, especially after the Trade Act of 2002.. They do submit transnational takings claims to arbitration. I'm not sure whether this is dead on to the topics of this list serve, although it's no more off-center than where some threads have gone. Besides, I'm not on the civil procedure list serve. Thanks for any thoughts you may have. If you think an off-list reply is best feel free. If you think it's of interest to the group Warmly, Marc R. Poirier Professor of Law Seton Hall University School of Law One Newark Center Newark, NJ 07102 973-642-8478
Re: takings/procedure question
It of course is an old issue; ost 19th century railroad charters gave companies a right to take, and mill dam cases allowed contructive takings. Paul Fikelman Mairi Morrison wrote: what is a tran-national taking? Under what power source does this occur? I'd be interested in hearing more about your problem. interesting question posed by Paul re. giving right of company to "take" from citizens, trend exists in takings juris of taking for "public use," ostensiby which really gives over land to a private co. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Re: jefferson and slavery
Jefferson's condemnations of slavery as a violation of human rights, written in private letters and never said in public, or in the Notes, which he did not itend to make public, stand in stark contrast to his buying and selling of human beings, his opposition to the Missouri Compromise, he refusal to bring the gradual emancipation bill to the floor in the Va. legislature. During the Revol. when Va. was being invaded by the British he did not propose arming (and freeing) slaves to fight for his liberty and theirs, but he did condemn the british for freeing slaves if they would fight against the americans. He surely understood slavery was, at some level, morally wrong. I am sure he understood that having children with Sally Hemings and holding those children in slavery was morally wrong. I am sure he understood, at some level, that keep Sally Hemings as slave and as his mistress was morally wrong. I am sure many people who do morally wrong things know that they are acting immorally. Whatever moral qualms he might have had, however, did not make him an opponent of slavery or someone who ever used his vast political power as gov., legislator, sec. of state, vp. and president, to actually do anything about it. I will not continu this debate with Prof. Somin after this e-mail, as have published enough on it for Prof. Somin to read. But , it is worth recalling that while president, Jefferson did everything in his power to undermine the government of Haiti and even offered to aid the French if they would reconquer the Island and reenslave its population. To this day I believe that the fate of Haiti is in part a result of the attempts by Jefferson to 'destroy the black republic' as his son-in-law proposed on the floor of Congress. Somin argues that I place too much value on a single individual. In this instance it is quite clear that had the US been willing to 1) recognize Haiti; 2) trade with Haiti; and 3) help Haiti develop a democratic republic --- all things the Haitians were asking us to do -- history would have been different. Instead, we undermined Haiti, broke off our diplomatic negotiations with Haiti, offered to help Napoleon reconquer Haiti, and well our embargo against Europe, put an embargo on Haiti that ruined its economy (we were the No., 1 tradiing partner with Haiti at the time), in order help destroy Haiti. This is the "antislavery" Jefferson in action. Paul Finkelman Ilya Somin wrote: A few points below: On Sat, 2 Aug 2003, Paul Finkelman wrote: No.1 woudl have banned slavery in 1800 just as Prof. Somin says, Is this a way to prevent the institution from spreading? Would anyone on the list propose social legislation that would not take effect for 16years, with no promise of an enforcement mechanism even then? Let's get real. -I agree that banning it in 16 years is not as good as doing so immediately. However, a rational slaveowner would not be very likely to want to bring slaves into an area where slavery would be abolished within a few years. There is no evidecne for no. 2 at all; this is a myth that Prof. Somin and other want to believe. On the contrary, he *prevented* such a bill from being introudced in the legislature as chair of the committee to revise the laws and then falsely claimed in Notes on teh Stte of Va. (in 1784) that such a bill was in the workds. -On this one, I will have to yield to Prof. Finkelman's far more expert knowledge of the subject. On. 3 one would think that a man who risked his life, fortune and sacred honor to fight the strongest nation on earth would have done more about slavery than merely moan about "God" (which is hardly much of a moan coming from a deist who never attended church), if he really thought it wrong. -This is just one of many Jefferson quotes criticizing slavery on moral grounds. Others can be found summarized in the UVA link I presented below. I don't think mentioning God somehow reduces the seriousness of Jefferson's point. The fact is that Jefferson stated that slavery was unjust and contrary to natural right on many occasions. Again, I invite Prof. Somin to read the evidence in Onuf's Jeffersonian Legacies and my Slavery and the Founders. If TJ had really opposed slavery, I suspect our history would have been different. But, alas, he did and never acted like he did in his public life or his private life. -I think that this overestimates the influence of any 1 person on an issue as large as slavery. To the extent that Jefferson did not do as much as he could have to oppose slavery, of course he deserves criticism for it. However, considerations of political feasibility surely played an important role in his actions. None of the southern slave states abolished slavery prior to the Civil War, and I don't think that this can be explained by chance factors or by insufficient commitment on the part of individual ant
Re: CJ Moore's Argument
It may have been in his briefs, or just in oral argument. When I was on the stand as an expert they asked me some questions along that line, as well as asked me don't you agree that the purpose of the Bill of Rights was to protect the states from the federal government. I had a lot of fun answering that question, it is not every day you get to give a 10-15 minute history lecture to the Chief Justice of a state, as well as to the federal judge trying the case. Paul Finkelman Quoting Stephen Siegel [EMAIL PROTECTED]: I would like to see Alabama Chief Justice Roy Moore's full argument, made in his brief is Glassroth v. Moore, 2003 WL 21499258, that he is not bound by the federal courts' interpretation of the US constitution. Is the brief on-line anywhere? Is there a hard copy available that could be photocopied or loaned? Many thanks, Stephen Siegel DePaul University College of Law
Re: Agenda and persecution of Mormons
I believe Israel exempted Yemenite Jews from its monogomy rules when they came in the 1950s. Islam *allows* polygamy, while the Mormons required it, which makes a big difference in how one views the free exercise issues. Paul Finkelman Quoting Sanford Levinson [EMAIL PROTECTED]: A colleague of mine came by my office today to ask about the Jewish position on monogramy. I told him that there is/was a dramatic difference between Sephardi and Ashkenazic Jewry, that monogamy was decreed sometime in the 11th century (I believe) by (I believe) an Eastern European rabbi, whereas polygamy remained into the 20th century in a number of Sephardi communities. Indeed, I had a friend in Israel who had two mothers-in-law, because his (now former) wife had emigrated from Yemen, and her father had two wives. I'm quite certain that Israel requires monogamy among Jews--I have no idea what the situation is with regard to Israeli Moslems--but polygamy was grandfathered, as it were, for Jewish immigrants who were involved in plural marriages. I hypothesized to my colleague that an obvious explanation for the difference between the two communities is that Jews in Europe felt pressures to conform to the mores of the dominant Christian community, which was monogamous, whereas there was obviously no such pressure in Moslem-dominated Sephardi areas. Similarly, I have little doubt that the Church of LDS would have maintained polygamy had the surrounding culture been more tolerant. sandy
Re: Agenda and persecution of Mormons
Is "membership" in an organization -- ie: subscribing to the belief in polygamy -- a "conduct" or a "belief." It seems to me it is a belief, since the defendant here had never had more than one wife. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Marci Hamilton wrote: Actually, it was for membership in a polygamous organization. The Court has been distinguishing belief and conduct in both the speech and free exercise cases for a very long time. It is a distinction that has intuitive, common sense appeal, so I would defend it, though it is not always a perfectly bright line in every case, a fault that does not doom a doctrinal distinction in my view. Marci
Re: Agenda and persecution of Mormons
In response to Nelson Lund's posting (below): Nelson, you asked the following question: My question was and is: exactly what did the change consist of, and was it more than an accommodation, possibly temporary, to American law? This was in response to my earlier posting that the Church changed its doctrine after a revelation from God to the President of the Church. Now, my response, which you say has nothing to do with the factual question you asked, in fact has everything to do with the factual question. IF you believe in that God spoke to the head of the Church, then there can be no other answer. It is not a response to political pressure; it can only be that God spoke, and the Church responded. That is a fully sufficient explanation to your question. If you do not believe that God speaks directly to people, then we can perhaps agree that it is political question, and we can see the abandonment of polygamy as a necessary precondition to the Church getting its property back and to Utah statehood. My other point was simply this: If one believes in such things as the virgin birth, or the resurrection, or the burning bush talking, then presumably one can accept that God spoke to the head of the Church. If so, then I would think there can be no further investigation of motivation or historical causation. God caused the change and that is that. I do not consider myself competent to interpret the causation value of God talking to the head of the church (or the virgin birth, or the resurrection, or the burning bush talking) and therefore, as a historian and a law professor, I must look to other interpretations of why the Church changed its mind. However, I know there are people on this list who do believe in God talking to the head of the church (or the virgin birth, or the resurrection, or the burning bush talking) and for them, I should think that Mormon Church doctrine is a fully sufficient explanation for the change in the church's views on polygamy. I hope it is now clear why I said what I said in the earlier post. I am sorry for any misunderstanding to for my failure to sufficiently explain my analysis. - Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) Nelson Lund wrote: I don't have the slightest idea what the post below has to do with the perfectly simple factual question that I asked. I had imagined that when the church changed its position on polygamy, it would have issued some kind of written document explaining the change to its members. Because there are so many historians on the list, I was hoping that one of them might know what the exact contents of that document were. Rather than risk any further misinterpretations of my simple factual question, I hereby withdraw it. Nelson Lund Paul Finkelman wrote: Well, your question presumes that you do not believe that the president of the Church of LDS received a revelation from God telling him to change church law. I am not competent to comment on whether that was true or not, any more than I can comment on whether Jesus rose from the dead, was born of virgin birth. But, if you accept either of the latter, or at least accept the possibility of either of the later, than you, as a matter of comity, ought to accept the former. So, in that sense, your question is answered by God. On the other had, if you do not accept the possibility of virgin birth and rising from the dead, then you might not accept the idea that God told the president of the LDS to change the rules of polygamy, and then we are back to the political question. The U.S. Government had been conducting a war of sorts against the Mormons, with the Supreme Court often leading the way. Congress had authorized, and the Court upheld (see Late Corporation of the Church of LDS) the confiscation of almost all Church property; thousands of Mormons were in jails and persecution was rampant. Under those circumstance, the Church changed its doctrine. See generally Edwin Frimage and Richard Collin Mangrum, Zion in the Courts. It is important to note that polygamy was a requirement for Mormon men who could afford to support more than one wife, if there wre single women in the community. Thus the war on the Mormons was persecution for religous doctinre and belief. Davis v. Beason (1890) upheld a proseution for belief, not action. It shows how far the U.S. govt. and the Court can go in persecuting religious minorities. Paul Finkelman Nelson Lund wrote: Of course the church changed its position. My question was and is: exactly what did the change consist of, and was it more than an accommodation, possibly temporary, to American law? Paul Finkelman wrote: The Church of LDS in fact officially changed its position, claiming revelation from God. The literature on this is pretty strong. You could start with RELIGION AND AMERICAN LAW: AN ENCYCLOPEDIA
Re: oops
Perhaps it could be called an e-error Tom Grey wrote: There should be some term for the glitch of privately explaining why you aren't posting something to a list - and then mistakenly posting that to the list. Tom Grey Stanford Law School [EMAIL PROTECTED] -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Re: Texas Pledge of Allegiance
isn't there a difference between political and religious "allegience." In a monotheistic world one presumes you cannot pledge to two gods at the same time; similarly, the question is, can you pledge to two forms of governments at the same time. I suppose it is possible to pledge to many different entities. I pledge allegience to the Syracause Organmen in basketball and will support no other college team. I pledge allegeience to the San Antonio Spurs and will support no other professional basketball team. I pledge allegience to the New York Yankees and will support no other professional baseball team. I pledge all. to the God of Abraham and Moses and will have no other God. I pledge all. to the United States, and will support no other flag or political entity. None of these are inconsistent. But, you cannot "pledge to the the God of Abraham and Moses" and then say I also pledge allegience to Jupiter and Neptune and Thor. I cannot "pledge" to the Yankees and the also "pledge" to the Red Sox. I cannot "pledge" to the United States and also to the France. So, the question is, can I pledge to the US and to the state (nee Republic) of Texas? Paul Finkelman -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Nelson Lund wrote: Does the logic of this objection to the Texas pledge mean that people who pledge allegiance to the United States are "nullifying" their allegiance to God? Nelson Lund Paul Finkelman wrote: I received the follow question from an English professor in one of the Texas state colleges. I wonder what people on this list think of the law law and her question: "The state legislature passed a law this session that mandates schoolchildren pledge an allegiance to the Texas flag as well as the US flag each morning. It goes: "Honor the Texas flag; I pledge allegiance to thee, Texas, one and indivisible." My question is this: if I pledge allegiance to Texas, am I not then nullifying my pledge to the US? Do I not, by pledging allegiance to one state, NOT pledge any allegiance to the other 49? This seems unconsitutional to me, but then what do I know? " -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Re: Texas Pledge of Allegiance
well, they might or might not be citizens of texas; even children attending school in texas are not necessarily citizens of texas although they are being required to pledge to texas. state citizenship itself seems to be unclear. For example, last time I knew, Texas did not allow people to get "instate" tuition for the Univ. of Texas unless they moved there before applying for school. So, you could go to Univ. of Texas as a first year undergrad. and stay on for law school; live in the state 7 or more years, vote, own a house, have children there, pay taxes, and not be considered a "citizen" or at least a "state resident" for purposes of "in-state" tuition. This is hardly a "silly" issue. Moreover, the pledge seems to me to raise issues of what exactly state citizenship means. Here is the issue, I suppose: if you pledge "allegience" to your state, and your state is in conflict with the national government on some political or economic issue, are you duty bound to support the state -- say to vote for the presidential candidate that will support the state on this issue? paul finkelman Nelson Lund wrote: It is perfectly obvious that one can have all kinds of allegiances that do not conflict with one another. The quoted pledge of allegiance to Texas does not specify what kind of allegiance is being pledged, and it seems silly to infer that whatever kind of allegiance is implied must be incompatible with allegiance to the United States. The Texas pledge doesn't say anything that would carry this implication, and the silliness of inferring such a thing seems particularly silly when one considers that American citizens who reside in Texas are also citizens of Texas. Nelson Lund Paul Finkelman wrote: isn't there a difference between political and religious "allegience." In a monotheistic world one presumes you cannot pledge to two gods at the same time; similarly, the question is, can you pledge to two forms of governments at the same time. I suppose it is possible to pledge to many different entities. I pledge allegience to the Syracause Organmen in basketball and will support no other college team. I pledge allegeience to the San Antonio Spurs and will support no other professional basketball team. I pledge allegience to the New York Yankees and will support no other professional baseball team. I pledge all. to the God of Abraham and Moses and will have no other God. I pledge all. to the United States, and will support no other flag or political entity. None of these are inconsistent. But, you cannot "pledge to the the God of Abraham and Moses" and then say I also pledge allegience to Jupiter and Neptune and Thor. I cannot "pledge" to the Yankees and the also "pledge" to the Red Sox. I cannot "pledge" to the United States and also to the France. So, the question is, can I pledge to the US and to the state (nee Republic) of Texas? Paul Finkelman -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] Nelson Lund wrote: Does the logic of this objection to the Texas pledge mean that people who pledge allegiance to the United States are "nullifying" their allegiance to God? Nelson Lund Paul Finkelman wrote: I received the follow question from an English professor in one of the Texas state colleges. I wonder what people on this list think of the law law and her question: "The state legislature passed a law this session that mandates schoolchildren pledge an allegiance to the Texas flag as well as the US flag each morning. It goes: "Honor the Texas flag; I pledge allegiance to thee, Texas, one and indivisible." My question is this: if I pledge allegiance to Texas, am I not then nullifying my pledge to the US? Do I not, by pledging allegiance to one state, NOT pledge any allegiance to the other 49? This seems unconsitutional to me, but then what do I know? " -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
