Which of 5 million?

Paul Finkelman pfink at albanylaw.edu
Fri Feb 23 07:08:54 PST 2007


ther might have been 5,000,000 contradictory understandings shared by
the 400,000 or so folks who voted

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> 02/23/07 8:53 AM >>>
"You need to specify which of the 5 million ratifier understandings 
you think is the right one. . . ."

I believe Keith Whittington refers to this as the "summing problem" in 
his book Constitutional Interpretation.  In brief, if there really 
were 5 million contraditory understandings on a given issue, then I do 
not think one can reasonably claim any "original understanding" 
existed.  More, I have no doubt there were issues upon which no 
significant agreement or understanding emerged.  

On the other hand, I think the historical evidence suggests there was 
a sufficient degree of overlapping consensus regarding key 
constitutional texts and issues to make originalism a meaningful 
enterprise.  On this point, I agree with Madison.

Kurt Lash

----- Original Message -----
From: Calvin Johnson <CJohnson at law.utexas.edu>
Date: Friday, February 23, 2007 4:29 am
Subject: Which of 5 million?

> 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
> Content-class: urn:content-classes:message
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> 
> 
> ------_=_NextPart_001_01C756F5.6CA51B2E
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>        charset="iso-8859-1"
> Content-Transfer-Encoding: quoted-printable
> 
> 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
> 
> 
> ------_=_NextPart_001_01C756F5.6CA51B2E
> Content-Type: text/html;
>        charset="iso-8859-1"
> Content-Transfer-Encoding: quoted-printable
> 
> <HTML dir=3Dltr><HEAD>=0A=
> <META http-equiv=3DContent-Type content=3D"text/html; 
> charset=3Dunicode">=0A=<META content=3D"MSHTML 6.00.2900.3059" 
> name=3DGENERATOR></HEAD>=0A=<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>
> ------_=_NextPart_001_01C756F5.6CA51B2E--
> 
> 
> 

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