Which of 5 million?

Robert Sheridan bobsheridan at earthlink.net
Fri Feb 23 19:10:31 PST 2007


On Feb 23, 2007, at 5:33 PM, Calvin Johnson wrote:

"...Stop the praise in the abstract and adjust your theories to your  
sample."

Hmmm...this could put us out of business...

BobS.
sfls

> The Consitution got more votes than it needed.  Two thirds of the  
> delegates, weighted by population behind them, ultimately voted to  
> support the Constitution.  The median was a lot more nationalist  
> and radical than the document.
>       Single most important reason fro ratification was "George  
> Washington is for it and he is a good man."
>     There was no reason to care about any details in the  
> ratification.  You couldnt change anything.  Current constitution  
> was utter failure and the national government was destitute,  
> imbecilic, impotent, unable to do its duty.  This coast line nation  
> was vulnerable to three rapacious empires and it had not a dollar  
> to pay for a sloop or gun to defend itself.   Of course if it was  
> this or nothing no one but a madman would go for nothing.
>      Both sides were utterly insincere in the debates - the  
> Federalists down playing the revolution and the Anti-Fedrelists  
> turning it into a work of Satan and world end-- because they could  
> not affect any letter and the vote was all or nothing.
>    Read the debates before you love them.  Read page 365 of all 26  
> volumes of Dcoumentary History of the Ratification of the  
> Constitution, a fair sample.  Stop the praise in the abstract and  
> adjust your theories to your sample.
>
>    The delegates who ratified or opposed remind me of the guy who  
> bought the Porsche without ever opening the hood or reading  
> anything about specs.  The buyer is sovereign and the decision to  
> buy is binding.  But if you want to know anything about the Porsche  
> consult the engineer who designed it.  So too, consult Philadelphia  
> on the C
>
> Five million is about right on the opions.  John Quincy Adams who  
> was Anti-Federalists, I think voted against it because it did not  
> have any separation of powers or mixed government as John Adams had  
> taught us it hsould.   But he has a couple hundred interpretations  
> all by himself and if we extrapolate from him, my 5 million  
> estimate is too low.
>
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Kurt Lash
> Sent: Fri 2/23/2007 7:53 AM
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Which of 5 million?
>
> "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
> > Content-Type: multipart/alternative;
> >        boundary="----_=_NextPart_001_01C756F5.6CA51B2E"
> >
> >
> > ------_=_NextPart_001_01C756F5.6CA51B2E
> > Content-Type: text/plain;
> >        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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