No states rights in the Original Intent
Hamilton02 at aol.com
Hamilton02 at aol.com
Mon Dec 26 09:05:26 PST 2005
Such a reading of the history can only come from a reading divorced from the
theological understandings at the time of the framing. The Federalist
Papers are quite deceptive on the confidence of the framers in the people. The
Notes of the Debates make it very clear the framers did not trust the people
(the people, after all, had utterly failed to make the previous system under the
Articles work). The dominant theological worldview among the framers, and
in particular those trained at Princeton(then the College of NJ), like
Madison, was that no one holding power could be trusted. Thus, the federal
government needed to be limited, but the states deserved a federal government
because they needed to be limited as well. To argue that there is no "states
rights," a phrase I've never liked since this is about power, not rights, is to
argue that the federal government could be what the framers intended and
dominate the states in every arena. That is fundamentally at odds with this world
view and mood at the Convention. In the end, it is a separation of powers
question little different from the separation of powers between the branches.
Now, if one wants to argue that those latter power issues are beyond the
courts' jurisdiction, then one might argue re: the states and the federal
government. But it is incoherent to argue in favor of the courts deciding
separation of powers between the branches but not between the state and federal
In a message dated 12/24/2005 11:16:18 A.M. Eastern Standard Time,
CJohnson at law.utexas.edu writes:
The primary pitch of the Federalist is that the border between federal and
state will be set by competition for the loyalty of the people. Publius (both
Madison and Hamilton) do say that the state will ahve many advantages maybe
even too many advantages in the competition. But do notice, it is the
sovereign people who will decide whether the state or federal government will satisfy
their needs. Not a judicial issue at all.
The Constitution was of course trying to eviserate the power of the
states, the feudal barons, because the States had not paid their requistions, had
vetoed fedreal tax, had never supported Washington's army as the need
required. The Constitution ended the confederation form of governmetn and rebuilt
upon a base of the sovereign people bypassing the States. Johnson, Righteous
Anger at the Wicked States (2005).
As Oliver Ellsworth put it, the Constitution provided that the United
States, as to national issues, will become a single state.
Those people who are trying to extract a states' rights mission from the
Constitution are doing bad history. There is almost nothing pro State about
the Constitution or the movement of 1787-1788, other than of course the
right of a state to veto a contraction of its borders or territoritory.
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