The role of Policy Preferences.
CJohnson at law.utexas.edu
Thu Dec 30 14:51:40 PST 2010
Jon Roland accuses me of imposing my personal policy preferences on the 1787 history and I write in rebutal.
I have not yet expressed my policy preferences, but I can:
Some of the policy preferences I find in the 1787 Constitution are good even inspirational and some are not. Some decisions should be done on decentralized basis because the diversity of preferences can best be met by letting each locality go their own way. Some decisions face a collective acton problem because the solitary states as independent actors sabotage the common good, and we need the best decision whihc can be made only at the national level.
The Founders thought they were facing a sabotage of the common good for reasons taht are now considered and I consider to be quite awful economics. The Founders were mercantalists, by reason of their participation in the intellectual arguments of their times. They thought the postivie purpose of an active government was to suppress imports ("regulate commerce") to preserve specie for domestic use. Anti-Federalists said that the importing merchants were the bane of the economy and the Federalist (GW) said that imports were "inevervating, efeminizing luxuries." One of the difficulties with the Articles of Confderation was that when Mass. imposed a stiff import tax, RI would undercut the rate to attract shipping to Providence. One could get a stiff tax on imports only by nationalizing the state import taxes. State import taxes could be smuggled around, but on the federal level, to quote Hamilton, there was only one side to defend, the Atlantic. We needed to nationalize the state taxes to suppress imports, which is what the term "regulation of commerce" is primiarily about. (I cant find any usuage of regulation of commerce in 1787 or ratification to refer to free trade or laissez faire., Can you?)
The Founders also faced a collective action problem in that everyone enjoyed the fruits of the War for Independence but no one was willing to pay for ti. The states defaulted in their requisitions. National defense is the paradigm of a public good that is available to everyone for free once avaiable, and no small contribuiton by one Patriot will help much. So no one voluntarily pays for it, and there is no sale or market possible. The Nation needed to end the sovereignty of the states to pay the war debts to prepare for the coming war and common defense.
I agree with the second point as a matter of policy preference and think the first one is nonsense on ice. I dont feel especially bound by mercantialism, although the founders were, but I do think the appeals to Patriotism to solve our common problems is both inspirational and necessary. Hisotyr is sometimes nonsense and sometimes inspirational.
But all that personal preference does not matter. What does nto matter is that if you are doing history get it right. ; If you are claiming the whole country must follow your conclusions because they are 1787 written hisotry do not lie about the history. The 1787 Constituion is a very strongly nationalistic document written to end the supremacy (sovereignty) of the States and make the federal government supreme. . The 9th and 10th Amendments are meaningless sops symbolic nonsense extended to get RI and NC to ratify. And not much was going to be given to RI.
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Jon Roland [jon.roland at constitution.org]
Sent: Thursday, December 30, 2010 3:03 PM
To: conlawprof at lists.ucla.edu
Subject: Re: FW: Originalism and Made Up History
Ahh, but who is making up what? I find in your words only arguments from policy preferences, not from history.
If the Court truly has restored the principle of limited federal power to modern constitutionalism, then it has a mechanism with which to begin charting the sea of rights that, according to the rights/powers view of the Ninth Amendment, surrounds islands of federal power.
>From Nicholas J. Johnson, Plenary Power and Constitutional Outcasts<http://www.constitution.org/10ll/schol/johnson_n1.htm>, 1996.
Constitution Society http://constitution.org
2900 W Anderson Ln C-200-322 Austin, TX 78757
512/299-5001 jon.roland at constitution.org<mailto:jon.roland at constitution.org>
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof