Re: Teaching the Articles of Confederation [Was 'Re: Just for laughs']
Ilya writes: At 01:58 PM 8/8/2003, you wrote: Well, as I tell my Con Law I students on the first day of class, the only possible conclusion is that [1] the Constitution is illegal, [2] the Articles of Confederation are still in force, and [3] I don't really need to teach the rest of the course:). Of course, 2 and 3 really don't follow from 1, anymore than the initial illegality of a given use of property necessarily stands for the proposition that it can never become legalized through adverse possession. So the con law students should reflect on how it is that the illegality of the Constitution was cured, perhaps, as Madison suggested in Federalist 40, by popular approbation. sandy
Re: Teaching the Articles of Confederation [Was 'Re: Just for laughs']
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
Re: Teaching the Articles of Confederation [Was 'Re: Just for laughs']
I don't dispute #1 or #2 on Earl's list, but I do take issue with #3. The ratification conventions were expressly NOT held under the authority of the state governments, but by separate ratifying conventions unknown to any of the existing state governmental structures. The reason for this was explicitly to make an appeal directly to the people rather than to the existing state governments. #4 -- the ratification process was not established by the existing state governments, but by the people of the state (acting, to be sure, through representatives chosen for the purpose, representatives who in many cases were the same individuals currently sitting in the state legislatures). #5 -- true, but he actually refers to the new system as a hybrid. 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
Re: Teaching the Articles of Confederation [Was 'Re: Just for laughs']
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
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
Re: Teaching the Articles of Confederation [Was 'Re: Just for laughs']
At 01:38 PM 8/8/2003 -0700, you wrote: I don't dispute #1 or #2 on Earl's list, but I do take issue with #3. The ratification conventions were expressly NOT held under the authority of the state governments, but by separate ratifying conventions unknown to any of the existing state governmental structures. The reason for this was explicitly to make an appeal directly to the people rather than to the existing state governments. #4 -- the ratification process was not established by the existing state governments, but by the people of the state (acting, to be sure, through representatives chosen for the purpose, representatives who in many cases were the same individuals currently sitting in the state legislatures). With respect to both 3 and 4, my understanding is that the state legislatures passed laws that both called the conventions and established eligibility requirements for both membership in the conventions and who could vote for members. Further, nothing happened in any state until the state legislature acted. To me, that makes the legislature the authority that establishes the ratification process in the state. #5 -- true, but he actually refers to the new system as a hybrid. True, but we're not talking about the nature of the system that was created, but rather the source of authority for its creation. My impression of Wilson is that he was a radical Democrat/nationalist, and that his views are not entitled to any particular priority 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
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
