Early American Voting Demographics (responding to Professor Rakoverespon...

[Paul Finkelman]

Take a look at Madison's introduction to the BoR in Congress; he says it
will not do any harm and it will please some people; but he still does
not think it necessary.

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
>>> "William Funk" <funk at lclark.edu> 08/24/07 5:58 PM >>>
I think it might be more accurate to state that including in the
ratification resolution an exhortation to the new Congress to propose
amendments for a bill of rights was a condition precedent to obtaining
the
necessary votes for ratification in Massachusetts, New Hampshire,
Virginia,
and New York.   

I think the objection to creating a condition in the ratification itself
was
a fear that it would raise a legal question whether the new constitution
could be in effect until such a bill of rights was adopted.  

Finally, I certainly defer to Paul's superior knowledge re: Madison and
the
Bill of Rights, but I have always had the sense that Madison's (and
other
federalists') statements that a bill of rights was unnecessary was more
a
debating point to win acceptance of the Constitution without a bill of
rights than an actual objection to having a bill of rights.  

Bill Funk

 

 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Kurt Lash
Sent: Friday, August 24, 2007 2:41 PM
To: Paul Finkelman
Cc: conlawprof at lists.ucla.edu
Subject: Re: Early American Voting Demographics (responding to Professor
Rakoverespon...

 

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
 
 
 


----- Original Message -----
From: Paul Finkelman <pfink at albanylaw.edu>
Date: Friday, August 24, 2007 2:15 pm
Subject: Re: Early American Voting Demographics (responding to Professor
Rakove respon...
To: Kurt.Lash at lls.edu, rakove at stanford.edu
Cc: RJLipkin at aol.com, conlawprof at lists.ucla.edu

> the ratifying states considered their adoption essential to
supporting the proposed constitution,?  At best you get some 
> compromises in the
> close states -- like Va. -- where the Federalists agree to allow the
> losers to propose amendments, but only after ratification.  The
> federalists opposed any tying of amendments to ratification and 
> that was
> clear in all of the conventions (except NC and RI which ratified after
> Amendments were proposed in Congress).  Madison considered 
> the BoR
> unnecessary and adding very little to the Constitution; the true
> antifederalists considered it a "tub to the whale" that did not answer
> their objects; indeed, in Va. the *antifederalists* like Patrick Henry
> opposed the BoR because they wanted different Amendments that 
> would have
> undermined the whole structure of the Constitution.  It is 
> worth reading
> Ken Bowling's important article in the Journal of the Early Republic
> from the 1980s, "A Tub to the Whale."  Also on this topic, 
> modestly, my
> own article: "James Madison and the Adoption of the Bill of 
> Rights:  A
> Reluctant Paternity,"  1990 SUP. CT. REV. 301-47 (1991).
> 
> Paul Finkelman
> 
> 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 5:06 PM >>>
> Given that the Bill of Rights were considered declaratory, and 
> that many
> of the ratifying states considered their adoption essential to
> supporting the proposed constitution, it seems then that the 
> period of
> "relevant debate re original understanding" ought to extend up 
> to the
> ratification of the Bill of Rights in 1791.
>  
> Kurt Lash
> Loyola Law School, Los Angeles