Happy July 4

[Calvin Johnson]

The people, operating through secret revolutionary committees,
assemblies and conventions, created both the Continental Congress, and
then, under directions by the Congress, the People formed the states.
The People are sovereign and the foundation of legitimacy for both
levels.  
    But the congressional directions were necessary and indispensible:
the banner that made the war possible was "United We Stand, Divided We
fall" and loyalty to the Congress, whatever it decided about radical
independence or more moderate accomodation with the Crown,  is what
divided rebels from the outcast Loyaltists, and identified one side as
Americans.  No loyalty to a State was ever required or expected.

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, June 30, 2005 4:07 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Happy July 4


    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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