Fwd: Re: The ahistorical federalism.

[Earl Maltz]

>To: "Calvin Johnson" <CJohnson at law.utexas.edu>, 
>conlawprof at lists.ucla.eduhout qu
>From: Earl Maltz <emaltz at camden.rutgers.edu>
>Subject: Re: The ahistorical federalism.
>
>Without question, a perceived need to strengthen the federal government 
>was the driving force behind the Constitutional Convention.  However, this 
>does not imply that federalism was not a critical factor in their 
>deliberations.  Indeed, the drafters explicitly made a number of decisions 
>dealing with (among other things) the idea and definition of enumerated 
>powers and the proposed Council of Revision that were designed to limit 
>the authority of the newly-strengthened federal government and preserve in 
>large measure the autonomy of the states.
>
>At 01:11 PM 6/6/2005 -0500, Calvin Johnson wrote:
>>         The argument that federalism was critical to the thinking of the
>>drafters of the Constitution is ahistorical.  The 1787 Constitution is a
>>rabidly nationalizing vector written to get the war debts paid, and to
>>put the wicked states into their place.  The Articles of Confederation
>>had given Congress only the powers expressly delegated and the Framers
>>found that limitation to be "destructive to the Union" and they took it
>>out.  If  people say the original meaning of the Constitution has some
>>states rights in it, I ask them "What Constitution are you talking
>>about?"    "The evils suffered and feared from weakness in Government,"
>>Madison had to tell Jefferson, "have turned the attention more toward
>>the means of strengthening the [government] than of narrowing [it]."
>>Johnson, Righteous Anger at the Wicked States: The Meaning of the
>>Founders Constitution (Cambridge 2005)
>>http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
>>
>>-----Original Message-----
>>From: conlawprof-bounces at lists.ucla.edu
>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
>>Sent: Monday, June 06, 2005 12:41 PM
>>To: lsolum at sandiego.edu; forwarding for fcross;
>>conlawprof at lists.ucla.edu
>>Cc: DavidEBernstein at aol.com; conlawprof at lists.ucla.edu;
>>MGRABER at gvpt.umd.edu
>>Subject: Re: The opinions in Ashcroft v. Raich
>>
>>I suppose it depends on the question "critical to whom."  If you are
>>talking about those who drafted both the original Constitution and the
>>Reconstruction amendments, considerations of federalism were absolutely
>>central to their thinking.  If you are talking about Justice Stevens
>>personally, he obviously could care less.
>>
>>At 10:32 AM 6/6/2005 -0700, Lawrence Solum wrote:
>> >Frank writes,
>> >
>> > >"It seems like we went a few
>> > > decades without even recognizing such limitations, and today, as the
>>
>> > >case  illustrates, they are far from critical.
>> >
>> >This doesn't seem like the proper criterion--especially in the
>> >constitutional context.  We "went a few decades" under Plessy, and more
>>
>> >than a few without significant enforcement of any of the provisions of
>> >the frist amendment, but presumably those provisions are exactly the
>> >one's that would be considered "critical" by Justice Stevens.
>> >
>> >Larry
>> >
>> >On 6/6/05, Frank Cross <crossf at mail.utexas.edu> wrote:
>> > >
>> > > "Apparently, however, the Constitution's limitations on federal
>> > > power--critical by any measure to the American system of
>> > > government--are not a "special concern," or even especially
>>important."
>> > >
>> > > I wonder about this.  I suppose I can see how some emphasize the
>> > > limitations on federal power, but I hardly think they are critical
>> > > by any measure to the American system of government.  It seems like
>> > > we went a few decades without even recognizing such limitations, and
>>
>> > > today, as the case illustrates, they are far from critical.
>> > >
>> > >
>> > > _______________________________________________
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>> >
>> >
>> >--
>> >Lawrence Solum
>> >http://home.sandiego.edu/~lsolum/
>> >
>> >Until June 1, 2005:
>> >University of San Diego School of Law
>> >lsolum at sandiego.edu
>> >(619) 260-8876
>> >
>> >After June 1, 2005
>> >John E. Cribbet Professor of Law
>> >University of Illinois College of Law
>> >lsolum at gmail.com
>> >_______________________________________________
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>>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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>>
>>Please note that messages sent to this large list cannot be viewed as
>>private.  Anyone can subscribe to the list and read messages that are
>>posted; people can read the Web archives; and list members can (rightly
>>or wrongly) forward the messages to others.