What States' Rights?
whoooo26505 at yahoo.com
Thu Mar 12 17:13:51 PDT 2009
... this sounds convoluted. There are two issues here: (a) was the government given a general-welfare power; and (b) was it given implied powers via the necessary and proper clause (and the changing of the Articles language)? Quite obviously, (a) is false, (b) is true.
The argument against (a) is seriously confused. It's like saying that a team that sends in a running play didn't actually call the play, because a group within the coaching network originally meant to coach soccer. But when they did what they did anyway, out came the sequence of events with other actors that sent the play in, which means it wasn't called. I mean, it makes absolutely no sense whatsoever.
The Virginia Plan had language conducive to a general welfare power. It was defeated. Hamilton's plan would have essentially carved the states into districts. It was defeated. The argument against the need for a Bill of Rights assumed a limited creation. There was precedent for sovereignty-sharing relations, or at least a rough idea of it (Scotland and England). The plain text of the document indicates that a general-welfare power is not conferred to Congress. The 10th Amendment seals that deal, at least as a matter of what Simon says.
There's nothing to argue.
Dr. Sean Wilson, Esq.
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860
From: Calvin Johnson <CJohnson at law.utexas.edu>
To: conlawprof at lists.ucla.edu
Sent: Thursday, March 12, 2009 7:17:36 PM
Subject: What States' Rights?
States Rights? What States’ Rights?: Implying Limitations on the Federal Government from the Overall Design, 57 Buffalo L. Rev. 225 (2009) http://www.utexas.edu/law/faculty/calvinjohnson/states-rights-what-states-rights.pdf defends my book, Righteous Anger at the Wicked States: The Meaning of the Founders’ Constitution (Cambridge), which is just coming out in paper back. I write this message to stir up the waters
States Rights? first argues that it is inappropriate for the Supreme Court to imply limitations on the federal government from its overall design. The historical Constitution was a weapon directed against the states. The most pressing need was to give the federal government a source of tax revenue to restore the ability to borrow, but the Framers went beyond the immediate fiscal need because of their anger at the states and took away the sovereignty (supremacy) of the states. A better understanding of the history was be unfriendly to Anti-Federalism, even today’s variety.
The most important limitation on the federal government is the enumerated power doctrine, which says the powers listed in Art. I, section 8 are exhaustive. That is probably not the intended meaning of the text because the framers took out the words in the Articles of Confederation that Congress would have only the powers “expressly delegated” to it, because the limitation had proved “destructive to the Union” and because the Framers wanted the unenumerated federal power over passports. The Federalists defended the omission against attack to the end. The most important written limitation on the federal government in favor of the states is the requirement has Congress may not contract state borders without state permission and that rule has been honored mostly in the breaching of it.
Professor Keith Whittington argues that the states were founded first and that the federal government has powers only by delegation from the states. The better case, however, is that the Congress was formed first and created independent states or at least that the states and Congress moved toward independence in tandem. The Constitution itself claims it gets its authority directly from the People. The power had to come from the People to be binding upon the states. No state in its corporate capacity was asked to ratify the Constitution.
Professor Whittington argues that we must interpret the Constitution by looking to its pivotal voter, not to its most extreme nationalist proponents. The Constitution was ratified, however, by delegates representing two thirds of the voters and, once ratified, opposition collapsed. The pivotal voter is deeply within the nationalist coalition and includes no Anti-Federalists, nor Anti-Federalist arguments.
“State’s Rights” is also commonly antithetical to individual rights. States are not rights bearing entities. The term “state’s rights” is a misleading and should be dropped.
States Rights? argues, secondly, as a matter of history that righteous anger at the wickedness of the states was a necessary cause of the Constitution. The Framers refused to ask the states for unanimous confirmation of the Constitution, as required by the Articles of Confederation and their instructions from Congress and the states, because they did not think they get unanimity and were too angry to care. Had they not been so angry, they might well have accommodated New York’s last offer to allow the federal government to have the impost or import taxes, but with New York paper used in payment. Had they not been so angry they would have preserved state sovereignty and the confederation mode.
Professor Whittington argues that “direct tax” is more important than “anger” as an explanation for the Constitution. It is difficult to take the “direct tax” issue seriously, however, because the majority opposed direct taxes, even while ratifying the Constitution as a whole, because direct taxes were ineffectually used over the next seventy five years, because Congress could have been given the direct tax even under the Confederation mode and because as the Federalists and Anti-Federalists competed for votes, their positions were not very different from each other.
Finally, States Rights? doubts that history of the Constitution should be binding on us. The Founders were trying to get specific programs adopted and solve specific problems of 1787. All their important programs were adopted or abandoned by mid-1790s. We can make analogies today, but all the energy of their intent was exhausted in the early years. We can use the Founders for inspiration when they are right, but they themselves were not writing to solve controversies over two hundred years in the future. What is most important, however, is that bad history – indeed mythology – should not be made binding on us, given the near-impossibility of amending our Constitution.
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. Dean Keeton (26th) St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
For reviews, chapters, discounts and news on Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders Constitution(Cambridge University Press 2005) see http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
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