No states rights in the Original Intent

[Hamilton02 at aol.com]

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 
governments.
 
 
Marci
 
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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