Originalism!! And Nationalism.
Bob Sheridan
bobsheridan at earthlink.net
Wed Jan 11 09:11:07 PST 2006
Calvin Johnson wrote:
"...That is, until Jefferson won in 1800 when he rewrote the history so
that States were supreme again, and the federal government were narrowly
constrained."
***
I wonder whether Prof. Johnson would kindly provide an example of what
he has in mind of Jefferson's rewriting of the history so that States
were supreme again. I'm trying to think of an example, but,
unfortunately, am coming up blank; not for the first time around here...
Thanks in advance.
rs
sfls
>On the big issues, the conclusion is easier: The Constitution was a
>nationalist vector written by radical nationalists to end state
>sovereignty and eviserate the states. The Constituiton was opposed
>bitterly to the end by a group called Anti-Fedralists who wanted to
>retain the power of the states. By the ratification of the Constitution
>the states' rights people lost. For reviews, chapters, discounts and
>news on Johnson, Righteous Anger at the Wicked States: The Meaning of
>the Founders Constitution (Cambridge University Press 2005) see
>http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
>
> That is, until Jefferson won in 1800 when he rewrote the history
>so that States were supreme again, and the federal government were
>narrowly constrained.
>
>
>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
>From: Bob Sheridan [mailto:bobsheridan at earthlink.net]
>Sent: Wednesday, January 11, 2006 10:26 AM
>To: Calvin Johnson
>Cc: Earl Maltz; conlawprof at lists.ucla.edu
>Subject: Re: Direct tax was the biggest issue of the Ratification
>debates, but probalby avoidable.
>
>
>
>Calvin Johnson wrote:
>
>"... I know the history, I just do not know which way to look at it."
>
>***
>
>If this isn't the best statement of the Originalist problem then I don't
>know what is.
>
>rs
>sfls
>
>
>
>> The Federal power to lay direct (meaning internal or dry land
>>taxes, nontariffs) was the single biggest controversy of the
>>Ratification debates. The Antifederalists proposed amendments denying
>>
>>
>
>
>
>>Congress the power over direct taxes and won in a majority of the
>>states. James Monroe said that we could make this Consittuion safe by
>>
>>
>
>
>
>>one amendment: taking the power over direct tax away from the Fedreal
>>Government. George Washington wrote to Jefferson in March 1788 saying
>>
>>
>
>
>
>>that he had no objection to any of the Anti-Fedrealist amendmetns,
>>except as to the one constraining direct taxes, which he took to be
>>the most important to the oppostion. Virginia Federalists let all the
>>
>>
>
>
>
>>AntiFederalist amendments go forward, but they challenged the
>>recommendation for restaints on direct tax, but lost on their
>>
>>
>challenge.
>
>
>> The Federalists in the debate kept minimizing the need for direct
>>tax: only in war would it be needed probably. But Hamilton wants
>>it: the Federal govenrment will have 80% of the responsibilities and
>>should not be constrained to 5% of the revenue. If Hamilton had not
>>assumed the state taxes, once he became Secretary of the Treasury,
>>then the 5% impost would have covered the desperate need that
>>motivated the Constituion: to pay off the debts of the Revolutionary
>>War. The impetus for the Constitution was Nwe Yorks veto of the
>>1783 proposal for a 5% tariff, so the immediate focus was definitely
>>on tarriffs alone. Tarriffs were the only clear non direct tax in the
>>
>>
>
>
>
>>terminology of the time. Excises are sometimes called direct taxes
>>and sometimes not.
>> Where does that leave us? Depends upon how you think about
>>it. Direct taxes were either a moot issue, not really all that much
>>importance to the South even though slaves had to be included in it,
>>or the core of the Constituion, including the North-South deal. I
>>know the history, I just do not know which way to look at it.
>>
>>----------------------------------------------------------------------
>>--
>>*From:* conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
>>*Sent:* Wed 1/11/2006 6:55 AM
>>*To:* conlawprof at lists.ucla.edu
>>*Subject:* Fwd: Re: Three-Fifths of a Question
>>
>>
>>
>>
>>>Date: Wed, 11 Jan 2006 07:52:34 -0500
>>>To: Paul Finkelman <paul-finkelman at utulsa.edu>
>>>From: Earl Maltz <emaltz at camden.rutgers.edu>
>>>Subject: Re: Three-Fifths of a Question
>>>
>>>My recollection is that he does not offer a detailed analysis of the
>>>issue, but simply gives his impression.
>>>
>>>At 09:51 PM 1/10/2006 -0600, you wrote:
>>>
>>>
>>>>what is the evidence McDonald offers for the idea that the framers
>>>>expected direct taxes (head taxes) from the federal government? Or
>>>>that S.C. was not ready to have full taxation because SC wanted full
>>>>
>>>>
>>representation.
>>
>>
>>>>Earl Maltz wrote:
>>>>
>>>>
>>>>
>>>>>I would only note that some scholars, such as Forrest McDonald,
>>>>>have a different view.
>>>>>
>>>>>At 03:33 PM 1/10/2006 -0600, Paul Finkelman wrote:
>>>>>
>>>>>
>>>>>
>>>>>>No one at the convention imagined there would ever be direct
>>>>>>taxes; as I point out in the first chapter of Slavery and the
>>>>>>Founders, the decision counting slaves for 3/5ths for
>>>>>>representation was made
>>>>>>
>>>>>>
>>by the
>>
>>
>>>>>>convention well before the taxation issue came up; they were tied
>>>>>>together later on. South Carolina delegates argued for full
>>>>>>representation for slaves and full taxation, becuase they
>>>>>>understood that it was unlikely that there would be direction
>>>>>>taxation. As Gouverneur Morris noted,
>>>>>>
>>>>>>it was "idle to suppose that the General Government can stretch
>>>>>>its hand directly into the pockets of the people scattered over so
>>>>>>
>>>>>>
>
>
>
>>>>>>vast a Country." Thus the South would get extra representation in
>>>>>>
>>>>>>
>
>
>
>>>>>>Congress for its slaves and have to pay nothing in return.
>>>>>>Because of this, Morris declared he "would sooner submit himself
>>>>>>to a tax for
>>>>>>
>>>>>>
>>paying for
>>
>>
>>>>>>all the Negroes in the United States than saddle posterity with
>>>>>>such a Constitution."
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>>-----Original Message-----
>>>>>>>From:
>>>>>>><mailto:conlawprof-bounces at lists.ucla.edu>conlawprof-bounces at list
>>>>>>>s.ucla .ed u [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf
>>>>>>>
>>>>>>>
>
>
>
>>>>>>>Of <mailto:DavidEBernstein at aol.com>DavidEBernstein at aol.com
>>>>>>>Sent: Tuesday, January 10, 2006 1:02 PM
>>>>>>>To: <mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu
>>>>>>>Subject: Three-Fifths of a Question
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>Why were the southern states so eager to have slaves counted for
>>>>>>>population purposes? Obviously, they wanted more representation
>>>>>>>in the House and electoral college, but the Constitution also
>>>>>>>provided that "direct Taxes shall be apportioned" among the
>>>>>>>several States by population. Why weren't the southern delegates
>>>>>>>
>>>>>>>
>
>
>
>>>>>>>concerned that their states would get socked with
>>>>>>>disproportionate taxation? Did they expect limited direct taxes?
>>>>>>>Or is this a case where the interests of the political class
>>>>>>>(more political power) diverged from the public's interest (less
>>>>>>>
>>>>>>>
>taxes)?
>
>
>>>>>>>
>>>>>>>David E. Bernstein
>>>>>>>Visiting Professor
>>>>>>>University of Michigan School of Law Professor George Mason
>>>>>>>University School of Law <http://mason.gmu.edu/~dbernste
>>>>>>>
>>>>>>>
>><http://mason.gmu.edu/%7Edbernste>>http://mason.gmu.edu/~dbernste
>><http://mason.gmu.edu/%7Edbernste>
>>
>>
>>>>>>>
>>>>>>>
>>>>>>>_______________________________________________
>>>>>>>To post, send message to
>>>>>>><mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu
>>>>>>>To subscribe, unsubscribe, change options, or get password, see
>>>>>>><http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof>http:/
>>>>>>>/lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>>>>>>
>>>>>>>
>>>>>>>Please note that messages sent to this large list cannot be
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>>>>>>>list members can (rightly or wrongly) forward the messages to
>>>>>>>
>>>>>>>
>others.
>
>
>>>>>>
>>>>>>
>>>>>>--
>>>>>>Paul Finkelman
>>>>>>Chapman Distinguished Professor of Law University of Tulsa College
>>>>>>
>>>>>>
>
>
>
>>>>>>of Law 3120 East 4th Place Tulsa, OK 74105
>>>>>>
>>>>>>918-631-3706 (voice)
>>>>>>918-631-2194 (fax)
>>>>>>
>>>>>><mailto:Paul-Finkelman at utulsa.edu>Paul-Finkelman at utulsa.edu
>>>>>>
>>>>>>_______________________________________________
>>>>>>To post, send message to Conlawprof at lists.ucla.edu To subscribe,
>>>>>>unsubscribe, change options, or get password, see
>>>>>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>>>>>
>>>>>>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.
>>>>>>
>>>>>>
>>>>--
>>>>Paul Finkelman
>>>>Chapman Distinguished Professor of Law University of Tulsa College
>>>>of Law 3120 East 4th Place Tulsa, OK 74105
>>>>
>>>>918-631-3706 (voice)
>>>>918-631-2194 (fax)
>>>>
>>>>Paul-Finkelman at utulsa.edu
>>>>
>>>>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu To subscribe,
>>unsubscribe, change options, or get password, see
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>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.
>>
>>-----------------------------------------------------------------------
>>-
>>
>>_______________________________________________
>>To post, send message to Conlawprof at lists.ucla.edu To subscribe,
>>unsubscribe, change options, or get password, see
>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>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.
>
>
>
>
>
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