Which of 5 million?

[Paul Finkelman]

As a historian I think ratifiers intentions is nonsense; impossible to
determine and since ratifiers could not amend (but only propose
amendments) their 18th century "signing statements" mean nothing.  They
voted it up or down and they voted it up.  The ratifiers were those at
the conventions.

The voters were one step removed from this process and their intentions
were ignored in many places. NY had a overwhelming anti-federalist
convention that voted to ratify; the people who sent Melancton Smith to
that convention did not expect him to support the Constititution.

We can make some sense of what the convention intended, and as a
historian I find that useful but limited.

Finally, not to nit pick Cal Johnson, but where do you get 5 million? 
In 1790 the US had a white population of 3.1 million, a free black pop
of about 59,000 and a slave pop. of 598,000.  Hard to add up to 5
million  Free blacks voted in a some states, if we add the 59,000 to the
whites and round up we get 3.2 million free people; cut that in half
since women do not vote (except in New Jersey where almost none did) and
are are at 1.6 million; take 50% off for children (it is a young
population) and we get to 800,000; probably only half or few of them
vote becuase of voting restrictions and apathy (voter turnout is not
high at this time) and we get about 400,000 voters and my guess is that
this is very very high.

Now, 400,000 ratifiers would be impossible to count as well, but there
are not 5,000,000.  

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
>>> "Calvin Johnson" <CJohnson at law.utexas.edu> 02/23/07 7:29 AM >>>
You need to specify which of the 5 million ratifier understandings you
think is the right one.  The intepretations are all over the map and
they arent very disciplined about keeping to the text they are supposed
to be interpreting.  
 
 Perhpas Scalia, Madison and others like the pick and choose method,
ignoring the 4.999 million ratifier understandings they dont want.  In
any event, I dont think the article "the" ratifier understanding is
appropriate to the cases

________________________________

From: Kurt Lash [mailto:Kurt.Lash at lls.edu]
Sent: Thu 2/22/2007 10:44 PM
To: Calvin Johnson
Subject: Re: RE: anyone for good old-fashioned original intent of
framers?



Calvin wrote: "You can not say the Philadelphia convention
misunderstood the C becuas they are the C.  You can and must say that
various ratifiers or various state conventions misundertood the C. "

This doesn't seem quite right to me.  The members of the Philadelphia
convention kept their proceedings secret precisely because they did
not want their particular comments and expectations to be given undue
weight (their proceedings became public much later). 

When it came to the ratifiers understanding, however, Madison insisted
from the beginning that their understanding of the document should
control.  He pressed this point consistently throughout his life--and
indeed, it makes sense given the widely embraced principles of popular
soveriegnty whereby the people in ratification conventions "breath
life" into an otherwise lifeless document through the process of
ratification.

Thus, the ratification conventions cannot misunderstand the
constitution.  Whatever their understanding, it is this understanding
that is authoritative under the principles of popular sovereignty. 
One may rightly object that there where varying positions among the
different state conventions, but there was a great deal of overlapping
consensus on a great many matters.  Indeed, the broad outlines of even
deeply contentious points were accepted by all--particularly the idea
that the federal government would have limited enumerated power and
states would retain broad areas of regulatory authority.

Kurt Lash
Loyola Law School, Los Angeles
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Yup.=20
My Righteous Anger at the Wicked States concluded that ratifier or =
public understanding is incoherent concept.  There were 3 million =
population.  If we read their reaction, there were 5 million =
understandings of the C.  There was a lot of personal idiocyncrasy: =
enough about your problems let me talk about mine.  Lots of issues that
=
hit us as not the fair reading of the language but hit them as the most
=
important issue.  To Garrison the C was about slavery; to Jefferson =
about states rights; to Patrick Henry about the domination by the =
Eastern States; to Shaysites about the power of COngress to supervise =
the states decisions about election procedures.  None of those issus hit
=
me as central, or having anything to do with the intent, but it was what
=
they carred about.  There was no mechanism for agreeing on =
interpretation so all 5 million interpreations were equally valid.  We =
indeed know that no single interpretation governed any one state or was
=
consistent among the states.   =20
   Now Jefferson and Madison when he became a Jeffersonian liked to pick
=
and chose quotes and the juicest quotes are from the ratification not =
Philadelphia.  To cut off their ratificaiton quotes would have mad e the
=
C a more nationalist document. =20
   In fact the Constituioun was written in Philadelphia and the ink was
=
dry before the Constitution left Philadelphia.  Subsequent spin can not
=
amned the original writing, except by Article V.   The delegates argued
=
from May to September, they delegated the hard issues to one =
subcommittee after another and they all signed a single document.  The =
factors of same room debates, redelegation, and single document might =
have meant all agreed to a single interpretation of the compromise words
=
but it did rein in the divergence.  You can not say the Philadelphia =
convention misunderstood the C becuas they are the C.  You can and must
=
say that various ratifiers or various state conventions misundertood the
=
C.=20

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of MARK STEIN
Sent: Thu 2/22/2007 3:13 PM
To: conlawprof at lists.ucla.edu
Subject: anyone for good old-fashioned original intent of framers?



Are there any recent writings by originalists who follow framers' =
intent, advocating that approach in opposition to ratifier understanding
=
or public meaning?

Thanks,
Mark


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charset=3Dunicode">=0A=
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<BODY>=0A=
<DIV id=3DidOWAReplyText957 dir=3Dltr>=0A=
<DIV dir=3Dltr><FONT face=3DArial color=3D#000000 size=3D2>Yup. =
</FONT></DIV>=0A=
<DIV dir=3Dltr><FONT face=3DArial color=3D#000000 size=3D2>My Righteous
=
Anger at the Wicked States concluded that ratifier or public =
understanding is incoherent concept.  There were 3 million =
population.  If we read their reaction, there were 5 million =
understandings of the C.  There was a lot of personal idiocyncrasy: =
enough about your problems let me talk about mine.  Lots of issues =
that hit us as not the fair reading of the language but hit them as the
=
most important issue.  To Garrison the C was about slavery; to =
Jefferson about states rights; to Patrick Henry about the domination by
=
the Eastern States; to Shaysites about the power of COngress to =
supervise the states decisions about election procedures.  None of =
those issus hit me as central, or having anything to do with the intent,
=
but it was what they carred about.  There was no mechanism for =
agreeing on interpretation so all 5 million interpreations were equally
=
valid.  We indeed know that no single interpretation governed any =
one state or was consistent among the states.    =
</FONT></DIV>=0A=
<DIV dir=3Dltr><FONT face=3DArial size=3D2>   Now Jefferson =
and Madison when he became a Jeffersonian liked to pick and chose quotes
=
and the juicest quotes are from the ratification not Philadelphia.  =
To cut off their ratificaiton quotes would have mad e the C a more =
nationalist document.  </FONT></DIV>=0A=
<DIV dir=3Dltr><FONT face=3DArial size=3D2>   In fact the =
Constituioun was written in Philadelphia and the ink was dry before the
=
Constitution left Philadelphia.  Subsequent spin can not amned the =
original writing, except by Article V.   The delegates argued =
from May to September, they delegated the hard issues to one =
subcommittee after another and they all signed a single document.  =
The factors of same room debates, redelegation, and single document =
might have meant all agreed to a single interpretation of the compromise
=
words but it did rein in the divergence.  You can not say the =
Philadelphia convention misunderstood the C becuas they are the C.  =
You can and must say that various ratifiers or various state conventions
=
misundertood the C. </FONT></DIV></DIV>=0A=
<DIV dir=3Dltr><BR>=0A=
<HR tabIndex=3D-1>=0A=
<FONT face=3DTahoma size=3D2><B>From:</B> =
conlawprof-bounces at lists.ucla.edu on behalf of MARK =
STEIN<BR><B>Sent:</B> Thu 2/22/2007 3:13 PM<BR><B>To:</B> =
conlawprof at lists.ucla.edu<BR><B>Subject:</B> anyone for good =
old-fashioned original intent of framers?<BR></FONT><BR></DIV>=0A=
<DIV><BR>Are there any recent writings by originalists who follow =
framers' intent, advocating that approach in opposition to ratifier =
understanding or public =
meaning?<BR><BR>Thanks,<BR>Mark<BR></DIV></BODY></HTML>
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