Early American Voting Demographics (responding to Professor Rakove respon...

[Paul Finkelman]

Not to be too technical, but when NY finally voted the Constitution had
already been ratified and the antifederalists who were in the majority
there were trying to save face (or cover some other part of their
anatomy) with that language.  It was th best gloss they could put on the
fact that they had suffered a huge loss and that ten states (one more
than necessary) had already ratified.  I think their statement has about
as much value as one of Pres. Bush's signing statements.


Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> Kurt Lash <Kurt.Lash at lls.edu> 08/24/07 5:41 PM >>>
Paul Finkelman  wrote "Madison considered the BoR unnecessary and adding
very little to the Constitution . . ."

Yes, meaning that the Bill was generally considered declaratory of the
Constitution's (proper) original meaning.  Thus, the relevance of the
debates regarding the Bill of Rights.

Paul also wrote, "None of the states ratified the Constitution did so on
condition that
there be a bill of rights."  True, but that's not what I wrote.  Adding
a Bill of rights was considered by many as essential to supporting the
proposed constitution.  I believe that Edmund Randolph in Va., for
example, was quite clear about this.

But I do not think it's altogether clear, even as a formal matter, that
no state ratified "conditionally."  New York, for example, submitted
along with its notice of ratification a declaration detailing the
convention's assumed "proper meaning" of the Constitution, along with
proposed amendments ("Under these impressions, and declaring that the
rights aforesaid cannot be abridged or violated, and that the
explanations aforesaid are consistent with the said Constitution, and in
confidence that the amendments which shall have been proposed to the
said Constitution will receive an early and mature consideration,--We,
the said delegates, in the name and in the behalf of the people of the
state of New York, do, by these presents, assent to and ratify the said
Constitution.").

If that's not contingent ratification, it's darned close.

Kurt Lash
Loyola Law School, Los Angeles


>>> Kurt Lash <Kurt.Lash at lls.edu> 08/24/07 5:41 PM >>>