Neo-Anti-Federalism

[calvin johnson]

 Paul--
        Yours  is a very interesting e-mail on an important subject, and you
are forcing me both to expand my defense and also accept amendments to my
propositons, which I do  consider  to be friendly or at least clarifying
amendments.
        For the Beardians, the contract clause and prohibitions on state
paper money in Art. I, section 10  are not a "few provisions" or   side
issues, but key to the whole Constitution.   The Beardians treat the
Constitution as a creditor document imposed upon the honest yeoman, and even
Gordon Wood views the C in the end as a document imposed by the few on the
many.  Thomas Jefferson after Shays (who he rooted for) viewed the C as a
"kite set up to scare the henhouse"  and  taht Jeffersonian perspective does
still dominate the historical profession's descriptions in one way or other.
You in dismissing section 10 mark yourself as non-Jeffersonian here, and I
think you are right to dismiss that  perspective.
        While I do not view section 10 as primary, I do view it as an
important secondary factor.  Madison, who set the agenda and provided the
philosophy for the Constitution, was mad at the states first for failign to
pay their requistions but also for violating the Treaty of Paris and
stiffing creditors.  Madison and his allies are net debtors, not creditors,
but they are trying to preserve their credit rating.   Madison is  sure that
Patrick Henry (and with him the states) was an evil man not just in stiffing
the War debts, by failing to pay requisitions, butalso in stiffing private
debtors.  The Treaty of Paris ending the War provided that British trade
creditors woudl be paid, notwithstanding the war, and Henry's Va.
leigislatures block foreign creditors, breaching the treaty.  For Madison
the states are evil for twin reasons, both stiffing public and private
debts, but it is all part of the same ball of wax, proving the evilness of
the states.
        The failure to pay requisitions was primary.  The C sets up a
tripartite government able to operate directly on people and drawing power
and legitimacy  driectly  from the sovereignty of the people because the
states had not paid their requisitons. The C replaces the coercion of civil
war agasint the states that would be needed to collect requisitions with the
gentle magistry of the law, collecting taxes directly from the people.
        Madison's philosphy, which caused the constitution or at least set
the first draft and set the agenda, was that  the extended republic was
inevitably the superior protector of individual rights and including
creditor rights.  Virginia Anglicans will inevitably abuse Baptists, RI
Baptists will inevitably abuse Quakers, and Pennsylvania Quakers will
inevitably abuse Presbyterians. Only on the national level, where there is a
diversity of interests is rational policy possible.  That philosophy causes
the Constitution.  Madison did not win on every thing he wanted, but his
vision is still the most important explanation of the C.   He may not have
got his very far, in your view, down the road of protecting individuals, but
it was core to his philsophy.  His extraordinary anger over the loss of the
negative, which would have allowed federal veto of the "frequent and
flagrant" abuses of individual right "in any case" shows how core it is to
the founding philosophy
        Slavery does not fit into Madison's grand scheme.  It is a
sectionally divisive issue, which should be compromised out, eg  by the
3/5th clause.  His enemies are using fears of the new  Federal government
ending slavery as a stupid  excuse to kill the wonderful Constitution,
unfairly in his view.  Slavery was an excuse to Madison, and nothing more
than that.   You may condemn Madions as insufficiently sensitive on the
slavery issue, but he is philosophically  blind to slavery, because it
interferes with his vision and it is his vision that cuases the
Constituiotn.
        You are certainly right that the Bill of Rights is an
Anti-Federalist document, albeit one vetted by Madison.  I do think of your
description of the Bill of Rights as the best in the business.  Madison did
not get his anti-state amendments, which were indeed consistent with his
grand view of the Constitution, but inconsistent with the purpose of the
bill of rights.

I have no great problem with Cal's ideological goal, that the Fed. Govt. should
>protect the people from the states; that is what I think we (still) have in
this
>period, since the, in my mind, proper use of the14th A. for selective
>incorporation; but I do not understand how anyone can look at the founding
period
>and get to Cal's conclusions; except for a few provisions of Art I, Sec.
10, it is
>hard to see where the Constitution empowers the national govt. to  protect
>individual liberty from the states; perhaps the most fundamental aspects of
>individual liberty in a democracy -- the definition of personal status
(slave or
>free for example) and the right to vote are *entirely* left to the states. Now,
>Art. IV does limit the states -- they cannot emancipate fugitive slaves, for
>example, but must deliever them up on demand of the owner -- and perhaps
Cal sees
>this as protecting individual liberties -- the property interest of the masters
>from the "evil" free states -- but even if we buy this, it does not get us very
>far along the road to showing how the Constitution protected individual
liberties
>from the states.
>
>Madison, we might recall, wanted the essence of the 1st and 5th Amendments to
>apply to the states as well as the national govt.  The Congress, dominated by
>Federalists, was not ready to go that far.  It is hard to see the BofR as an
>Anti-Federalist triumph, because in reality these are amendments the
Federalists
>found unobjectionable, but it is surely not a Federalist assault on the state.
>
>--
>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
>
>
>
>Calvin Johnson wrote:
>
>> I find the new federalism to be illegitimate.  The Constituion is an angry
>> anti-state document, written to create a new government supreme over the
>> states and invading their internal police.  Madison who thought out  the
>> philosophy that set the agenda thought that the states would frequently and
>> flagrantly abuse individual rights and needed to be reigned in.  The
>> Framers were irate at the immoral states for failing to pay the
>> requisitions and making it impossible to avoid defaults on the
>> Revolutionary War debts.  The crisis that caused was a fiscal crisis and
>> the C was written to allow the Federal government to operated directly ont
>> he people without going through the states.
>>         States are not rigthts bearing entities under the C. as written and
>> intended.  The federal government is the protector of individual rights
>> against the evil states.  Giving rights to states commonly means
>> necessarily abusing the rights of individual (eg the Senate).  The congress
>> under the Articles of COnfederation operated only by commandeering state
>> employees and under the C the Congress was to have every thing it had and
>> then some; it is nonsense to require separate federal gun police as if gun
>> law were some alien law instead of the supreme law of the land.   The 11th
>> Amendment is a home court for decision rule, and not a source of state
>> immunity and there is also no other legitimate source.   The Federal
>> government can operate by tax and spend under clause 1 to provide for the
>> general welfare and common defence and if the tax and spend drift into
>> regulation that was all right too under the original meaning  The general
>> jurisdiction of the COngress is found in clause 1, where it shoudl be,
>> which is to provide for the common defence and general welfare.  There is
>> no Constitonal value to be weighted on the other side, because the
>> Constituion document is an anti-state vector only.    The distinctions to
>> be made within some future expansion of neo-Anti-Federalism are
>> illegitimate and uninteresting.
>>         Does that answer the Q?
>>
>> At 10:45 AM 11/18/2000 -0600, you wrote:
>> >So you do challenge the notion that there is a requirement of a
>> >relationship between the spending and the condition? In any case, my
>> >original post was predicting the future based on other federalism-based
>> >developments. I would predict an increase in the required connection, and
>> >certainly not an abandonment of the notion that there needs to be
>> >one--especially if Congress uses conditioned spending as a way around other
>> >limitations on its power
>> >
>> >Ann
>> >
>