VIP Preferences/Thomas's Use of Declaration Preamble

[Paul Finkelman]

OK, then what do we make of the same Founders who created governments in states
where up to 1/2 of the people were slaves and had no consent. It is worht
noting that in Mass., NH, and Vt. the revolutionar era leaders ended slavery in
their constitutions  But, the other states did not.  What does that say about
they constitution-makers in Va., SC, etc.  Were they incredible hypocrites,
*or* did they think that Republican governments could in fact cut out large
portions of the population.  [I am assuming here, for sake of argument, that
the founders believed women were "virtually represented" through their
husbands, fathers, brothers, although even here this some uncertainty.  NY for
example allowed single women property owners to vote in certain kinds of
tax-related elections, on the theory that taxation was illegitimate without
representation.]

John's position as I read it below is that the founders in most of the states
set up "despotic" governments, and that they maintained them until they were
overthrown by Grant, Sherman, and other Liberators.  I can certainly endorse
that radical view of American history. Similarly, the proposed code of law for
Va. that Jefferson drafted, with its harsh slave code is another example of
despotism.   I think after months of internet conversations, John Eastman and I
are now on the same page on this one.  The next step is to campaign for removal
of those despots from our coinage, stamps, public monuments etc?  Shall we
start with the $2.00 bill?

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu



"John C. Eastman" wrote:

> As Marty Lederman rightly recognized, I misunderstood his reference to
> "Preamble" to be a reference to the Constitution's preamble, not the core
> lead paragraphs of the Declaration.
> But, if we are to look just to the Declaration, the idea that the only
> "just" governments are those based on consent, and that a government that
> refused to recognize the self-evident equality of all human beings (such as
> one that countenances slavery) is not based on consent, therefore not
> "just."  Such a government is despotic, not republican.  A republican form
> of government may well mean more than that, of course, but it surely means
> at least this.
> John Eastman
>
> Paul Finkelman wrote:
>
> > I am curious what John Eastman thinks the Dec. of Ind. preamble says
> > about the meaning of "republican form of government."  It talks about
> > some Lockean theories of government (instituted by the consent of the
> > governed, etc.) but this is not necessarily republican form of
> > government.  And if it is, it does not offer any more insight, except
> > "concent."  But of course, it  the Dec. of Ind. is  flawed as a "liberty
> > document" in that the primary author (Jefferson) clearly had no interest
> > in asking the 150 or so slaves he owned for their consent to be governed
> > by him; and virtually none of the other signers considered this a
> > problem.  Complicating this is the last of the "bill of particulars"
> > (4th paragraph from the end of the document), in which Jefferson
> > complains that the king "has excited domestic insurrections amongst us"
> > -- which of course is a reference to Lord Dunmore's Proclamation,
> > offering liberty to Virginia slaves willing to serve the King in
> > suppressing the rebellion.  So, if John will accepted a direct question:
> > what part of the Dec. of Ind. explains the meaning of the guarantee
> > clause of the Constitution.
> >
> > --
> > Paul Finkelman
> > Chapman Distinguished Professor
> > University of Tulsa College of Law
> > 3120 East 4th Place
> > Tulsa, Oklahoma  74104-2499
> >
> > 918-631-3706 (office)
> > 918-631-2194 (fax)
> >
> > paul-finkelman at utulsa.edu
> >
> > "John C. Eastman" wrote:
> >
> > > Perhaps I have a defective copy of the Adarand opinion (that is tongue
> > > in cheek -- a feeble attempt at humor)  but Thomas's citation in
> > > Adarand is not to the Preamble at all, but to the Declaration of
> > > Independence.  If Marty is asserting that the Declaration is also a
> > > Preamble to the Constitution, then three cheers.  If resort to the
> > > Declaration helps us distinguish between the principles of the
> > > Constitution and its unfortunate compromises, even better.  (Where
> > > else would one look to define "Republican" form of government;
> > > "proper" in the Necessary and Proper Clause; the privileges of
> > > citizenship protected by the Art. IV Privileges and Immunities clause,
> > > see Corfield v. Coryell; the 9th Amendment's unnamed rights retained
> > > by the people; or even the Equal Protection Clause of the 14th
> > > Amendment (not to mention the eviscerated Privileges or Immunities
> > > Clause), which after all was proposed to bring our constitutional
> > > order more in line with our regime principles).  You may reject this
> > > principled foundation for our constitutional system, but as a matter
> > > of fact it was and is the foundation.  And it intellectually sound.
> > > Before deriding it with "laughter," therefore, understand it on its
> > > own terms and then rebut it, if you can.
> > > -- John Eastman
> > > Chapman University School of Law