Happy July 4

[Volokh, Eugene]

    Hmm -- the resolution sounds like Congress *urging* the colonies to
adopt new governments, not *creating* States.  If the States didn't
automatically arise from the Colonies once they declared their
independence, then at the very least they would be created -- as this
resolution contemplates -- by "the respective assemblies and
conventions," not by Congress.  Or am I misunderstanding this?

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin Johnson
Sent: Thursday, June 30, 2005 2:01 PM
To: conlawprof at lists.ucla.edu
Subject: Happy July 4


    As we go into the Fourth of July week, it is important for us to
preserve a certain amount of moderation in the celebration, not just on
the issue of alcohol and highway speed, but also because of the nature
of the holiday.  It is of course just too late this year to celebrate
John Adam's  preamble of May 15, 1776 or the underlying May 10, 1776
resolution, which in fact accomplished the break:

 

 "Whereas ... it appears absolutely irreconcileable to reason and good
Conscience, for the people of these colonies now to take the oaths and
affirmations necessary for the support of any government under the crown
of Great Britain, and it is necessary that the exercise of every kind of
authority under the said crown should be totally suppressed, and all the
powers of government exerted, under the authority of the people of the
colonies, for the preservation of internal peace, virtue, and good
order, as well as for the defence of their lives, liberties, and
properties, against the hostile invasions and cruel depredations of
their enemies; therefore,

 

 Resolved, That it be recommended to the respective assemblies and
conventions of the United Colonies, where no government sufficient to
the exigencies of their affairs have been hitherto established, to adopt
such government as shall, in the opinion of the representatives of the
people, best conduce to the happiness and safety of their constituents
in particular, and America in general."

 

 This, it should be noticed, is the Congress creating States as a
product of its will. 

            Robert B. Morris, Forging of the Union, treats this motion
and preamble as establishing that the states did not form the U.S. but
rather the Congress preceded and formed the states.  The states did not
originally delegate any power to the federal government, but rather the
federal government delegated power to the states.  When the Tenth
Amendment says that powers not delegated to the Congress, either
expresslyor by implication, shall be reserved to the people or to the
states,  it needs to be read, consistent with the history, that the
people are the repository of the undelegated power. 

 

            On these occasions, it is important to celebrate our true
past. 

 

Calvin H. Johnson 
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. Dean Keeton (26th)  St.
Austin, TX  78705
(512) 232-1306  (voice)
FAX: (512) 232-2399
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
 

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