democratic and anti-democratic

[Malla Pollack]

Sorry I was unclear. The position I considered undercut by the civil war is
that the US is a group of states, not that humans should keep oaths. 
The material I have read agrees that some states did slightly broaden the
franchise for the ratification -- mostly by not enforcing property limits
against persons who served in the Revolutionary War, but that is hard to
quantify.  I have not yet read Amar's new book (though I have ordered it
from the library) so I cannot comment further.  I have disagreed with some
of Amar's conclusions, but never found him wrong on facts. 

Despite the broadening of the franchise, many people were either legally or
in practice not included (hard to vote if you have to travel too far in
colonial conditions). 
 

Malla Pollack
Professor, American Justice School of Law
Visiting Univ. of Idaho, College of Law
mpollack at uidaho.edu
208-885-2017
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Monday, October 31, 2005 11:52 AM
To: conlawprof at lists.ucla.edu
Subject: RE: democratic and anti-democratic

I don't understand how my position somehow lost the Civil War. My position
is that oaths to support the Constitution should be honored; the losing side
(e.g., Robert E. Lee) disagreed. And the side that denied the binding effect
of the Constitution lost the Civil War; I'm arguing for its binding effect,
and its legitimacy. And I don't think it's helpful to try to identify list
members as heirs of the Confederacy, or of Bull Connor. 

I'd much rather hear what Malla thinks about Akhil Amar's claim that
suffrage was broadened substantially in many states for purposes of election
of members of the ratifying convention (as compared to who could vote to
elect state legislators). I think Malla has substantial relevant expertise
on that issue.

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: Malla Pollack [mailto:mpollack at uidaho.edu] 
Sent: Monday, October 31, 2005 11:22 AM
To: 'Earl Maltz'; Scarberry, Mark
Cc: conlawprof at lists.ucla.edu
Subject: RE: democratic and anti-democratic

I had thought that Mark's position lost the Civil War-- whatever its
theoretical coherence.  IMHO, the US Government rests on the current
public's feeling of fealty to the Constitution -- and the government which
claims to be its embodiment.  That position continues the sovereign power of
we the people. It also requires that the Constitution be read as modern
English. As I have said before, this is (too) thoroughly explained in my
forthcoming article available at ssrn.com


Malla Pollack
Professor, American Justice School of Law
Visiting Univ. of Idaho, College of Law
mpollack at uidaho.edu
208-885-2017
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
Sent: Sunday, October 30, 2005 5:29 PM
To: Scarberry, Mark
Cc: conlawprof at lists.ucla.edu
Subject: RE: democratic and anti-democratic

In a very real sense, whether the ratification of the Constitution was 
"democratic" or not is basically irrelevant.  The federal government 
derives its authority from the decision of each of the original constituent 
state governments, acting through constitutional conventions vested with 
authority by the state legislatures, to surrender a portion of their 
governmental power to the new federal government, and to bind themselves to 
abide by the limitations imposed by the new Constitution.

At 05:05 PM 10/30/2005 -0800, you wrote:
>I don't want to get involved in the argument between Sean and Malla over
>whether her view is "presentistic." But all American judges (and most of us
>who are American lawyers) have taken an oath to uphold the Constitution. If
>judges believed that the Constitution was illegitimate and did not intend
to
>be faithful to it, then they should not have taken the oath. If enough
>outstanding candidates refused to do so, perhaps there would be a movement
>to have a more new, more democratic Founding. But every member of the
>Supreme Court has taken the oath, and with it comes the obligation to
>faithfully interpret the Constitution we have. That Constitution gives
>different roles to the different branches, and it gives the core
legislative
>power to those branches whose members are elected directly by the people:
>namely the House and the Senate (post 17th Amendment). Though the President
>shares in the legislative power (negatively by way of the veto), the
Supreme
>Court has no part of it.
>
>It may be that if the Court had power to do what it wished, the results
>might be more democratic in some sense than the results obtained from a
>gerrymandered House and a two-Senators-per-state Senate. But that is not
>what was consented to at the Founding. Hamilton, in one of his less sage
>moments, proposed at the Convention that the President should serve for
>life. His proposal was properly rejected. Implicit in that was the
rejection
>of the idea that we should be ruled by nine philosopher kings (or queens?)
>holding lifetime positions.
>
>One may question, as Malla has, whether ratification of the Constitution
was
>a democratic process. Note, though, that Akil Amar, in his very new book,
>The Constitution: A Biography, shows that the limitations on suffrage that
>applied to elections for state legislatures were in many cases
substantially
>relaxed in the voting for members of the state ratification conventions.
See
>pages 7 and 17-18. The first chapter of the book (which is as far as I've
>gotten) stresses the many ways in which the Constitution of 1787 was
>democratic. Though recognizing the Constitution's serious defects (such as
>the 3/5 clause), he argues that
>
>"America's Founding gave the world more democracy than the planet had thus
>far witnessed. Yet many modern Americans, from lawyers to laity, have
missed
>this basic fact." Id. at 14.
>
>Mark Scarberry
>Pepperdine
>_______________________________________________
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