The Historicism of the Covenant with Death and the Second
chjohnson at MAIL.LAW.UTEXAS.EDU
Tue Oct 10 19:16:39 PDT 2000
> If Paul
>is willing to countenance the possibility that Taney was, in substantial
>aspects, right, and liberal anti-Garrisonian supporters of the Constitution
>substantially wrong, then why not countenance the possibility that people
>like Steve Halbrook and others are, in substantial aspects, right with
>regard to the original meaning assigned the Second Amendment by those few
>people who took note of it. (And, concomitantly, that Taney may have been
>on to something when, in Dred Scott, he declares that the right to bear
>arms is one of those basic rights of the citizen.)
There is a continuous thread, a tradition, that interprets the
Constitution as a Covenant with Death. The opponents of the Constitution,
called Anti-Federalists, had to interpret the document as "extinguishing
the lights of Heaven" because they were trying to pull together a coilition
to defeat it. Garrison decided that the fugitive slave clause was not
defeatable by mere interpretation and he and the later abolitists needed to
pull together the coilition that was willing to go into the war to end
slavery. Beard decided that the Fuller Court was right on its
interpretation of economic rights (a dubious proposition), and he thus
decided that the fault lay in the document itself. Beard was a progressive
critic of the Supreme Court trying to delegitimate the court by
delegitimating its governing document. I think Beard was wrong in his
history and tactical strategy, at least once we move into the new Deal, but
I think I understand him.
Sandy, if I understand him, operates within the Covenant with Death
tradition. But I am not sure what coilition that interpretation is
supposed to serve now. I dont understand its politics or motive.
And I also do not think that the Covenant with Death interpretation is
necessary for the 2d Amendment. The whole Bill of Rights does have to be
understood as a sop, a "tub thrown to a whale." Madison thought that the
rights talk was BS, an excuse to kill the new government and retain the
power of the existing state office holders. The more Patrick Henry
talked, the less respect Madison had for the liberties of slavehodling
Virginians. From the list of proposed amendments Madison rejected all
the serious ones, the restrictions on tax, and the supermajority
requirements that might have crippled this new government. He was willing
to adopt the amendments that did no harm, to bring in North Carolina, but
North Carolina was not worth much, and not much was given to it to get it.
Madison expressly rejected those amendment that were dangerous.
It seems quite reasonable to interpret Madison's right to arms as
historical trivia. Madison's right to bear arms was a right from which
Quakers were exempted. The militias was by analogy the Protestant armies
balanced against King James' Catholic standing armies in the Glorious
Revolution rhetoric that the 1780s seemed to use to make their points.
Rifles were tightly controlled in arsenals and even when not, they were
not noticeable superior to the bow or arrow, bayonet or tomahawk. The
founders would have been appalled to find the power of an AK 47 in the
hands of every vicious outlaw on the streets or in the hills.
Why not adopt the interpretation of the Constitution that protects the
civilization? Why insist upon bringing Kosovo, Ethiopia or Congo onto our
wind swept shores? What is the motive for interpreting the Constitution as
a Covenant With Death? I dont understand it. Why?
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. 26th St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
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