Massive penalty on slavery

Fri Feb 12 13:19:47 PST 2010

"massive bonus" is a misdescription if the fall back position is that slaves are counted at half for tax and 100% for representation.  Slaves were massively penalized from that base line.  Adams would never have made it to the House under weighting by straight population (plus Senate votes). {Are not the souls of each person of equal weight?}     You have put your conclusions into your base line, and wont find your rabbit, if you had not put into the hat in the baseline in the first place.  

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 
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
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/

-----Original Message-----
From: Sanford Levinson 
Sent: Friday, February 12, 2010 3:11 PM
To: Calvin Johnson; Christopher Green; conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: RE: Slavery

But isn't the point of this "oath" discussion is what one is promising to do when confronted with something that's really very, very bad (even though, by stipulation, "it could have been worse")?  Calvin may be absolutely correct in his historical reconstruction, but the point is that the Constitution contained a massive bonus for slave states that skewed representation in the House and, therefore, election of US presidents because of the mechanism of the dreadful electoral college.  That's the Constitution the NCC is asking persons to sign, not the Constitution of 1868 or 1870 or 1920.  I wouldn't sign even the 2010 Constitution because of what I think are its patent defects, but even I concede that the "slavery bonus" is no longer part of our positive constitutional order, thanks to a war that killed 600,000 people (and thanks, therefore, to Southern secessionists who were too stupid to realize that Lincoln did not in fact pose a genuine threat to their power).

sandy

-----Original Message-----
From: Calvin Johnson 
Sent: Friday, February 12, 2010 3:02 PM
To: Sanford Levinson; Christopher Green; conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: Slavery

The 3/5ths clause started conceptually as a tax clause attempting to measure the contribution of population to wealth, and apportioning tax to wealth. The South argued that wage rates were half in South of what they were in the North, indicating in equilibrium the contribution of slaves.  As a tax provision, 3/5ths was pro-North, compared to what the South wanted of half.
    The 3/5ths clasue became a representation measure, because Madison needed the votes of those who thought that wealth should control, to beat the Articles rule that all states would have equal weight.  Madison hated the rule, ultimately continued in the Senate, that gives the name State to 1000 people and they have the power of 10,000    (now htat would be give the name Wyoming to 1000 people and they have the power of 69.000 Californians)  There was a significant fraction who thought that government was instituted to protect property, and those who owned the country should run it.  Even as a vote measure, the 3.5ths is a wealth measure.    The default rule if not 3/5ths, however, would be that 100% of slaves determined votes.  Women and children did not vote, but increased the wealth of the state by the rough measure of population.  So 3/5ths is a pro Northern rule reducing the weight of the slaves.

	The dominant attitude of the Federalists in favor of the Constitution was that getting the war debts paid trumped everything.  These were desperate times, and the nation was vulnerable to three empires without a gun or a sloop to defend itself.  They pushed slavery under the rug, eg. with Sherman (Conn) saying "Let us leave matters where they stand and get about our business"   

	The C would have settled more anti-slavery on its stuffing under the rug compromises, if RI and NY had not boycotted and NH had been more regular about attendance.  Their  absence turned an 7 to 6 nonslave majority (counting Delaware on the South, when it is half between in votes and slave population) into a usually 6-4 slave majority on all the important votes. Still the compromises were always compromises to stuff the hot wire issue and get about our business. 

	The Southern slaveholders could not figure out whether the C was for or against their interests.  In Virginia, the biggest and smallest slaveholders thought it was against their interests. But in Maryland, the biggest and smallest slaveholders were more pro-ratification.  The patterns show confusion.  

Again the question is compared to what.  By the morality of eternal virtue, the C is sadly lacking.  But by the standards of the time, it sure could have been worse. 

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 
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
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/

-----Original Message-----
From: Sanford Levinson 
Sent: Friday, February 12, 2010 2:44 PM
To: Calvin Johnson; Christopher Green; conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: RE: An anecdote about oaths

So what about the 3/5 compromise?  Does Calvin's version of the Constitution not contain that either?  Was the Constitution not a "covenant with death and an agreement with hell," even given its Johnsonian/Dworkinian reading as "the best that it can be"?  Frederick Douglass did in fact argue that the original Constitution in no way reinforced slavery, and I regularly ask my students if his is a tenable (or plausible) reading of the pre-1865 Constitution.

sandy

-----Original Message-----
From: Calvin Johnson 
Sent: Friday, February 12, 2010 2:40 PM
To: Sanford Levinson; Christopher Green; conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: RE: An anecdote about oaths

I went to the Philadelphia National Constitution Center long after I knew your position, and walked proudly to desk and signed it.  By then I knew what pigs the Anti-Federalists were, and how petty and selfish their positions were.  Anti-Federalism in New York meant preservation of the NY harbor customs house taxes for purely NY purposes, denying the Sacred Union the benefit of survival so as to tax the consumption of NY's neighbors.  Anti-Federalist in Virginia was preservation of Slavery from interference from the Eastern states.  Anti-Federalism in Massachusetts was who knows what, least of all the Anti-Federalists themselves.  
   Like Democracy, you have to ask, compared to what?  

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 
Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf 
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/

-----Original Message-----
From: Sanford Levinson 
Sent: Friday, February 12, 2010 2:29 PM
To: Calvin Johnson; Christopher Green; conlawprof at lists.ucla.edu
Cc: Lino Graglia
Subject: RE: An anecdote about oaths

I had a student a number of years ago who took Constitutional Law with me and was persuaded by my argument that the Constitution in some sense can be reduced to Article V and then the question is whether there are any limits to amendment via Article V.  E.g., could we reinstitute slavery or establish a theocracy so long as 2/3 or each house of Congress proposed and 3/4 of the states ratified such changes?  If that is the case, why would anyone ever swear binding fealty to such a Constitution?  (Jack Balkin and I discuss this in the context of Kurt Godel's reluctance to become a US citizen, which required "attachment to the principles of the Constitution," at the conclusion of our essay on "Constitutional Crises.")  

So, when it came time to sit for the Texas Bar examination, the first thing the Bar required was filling out a form in which the applicant promises to be faithful to the Constitution.  My student asked them what their theory of the Constitution was, since his answer depended on their answer.  Some Constitutions deserve fealty, others do not.  As one might expect, they were not amused by this response and ultimately refused him the right to sit for the examination.  One might suspect that he really didn't want to be a practicing lawyer anyway, but assume he did.  Should I have advised him to sign the damned piece of paper with the mental reservation that "the Constitution means exactly what I say it is, which includes provisos that would assure that it could never become an implement of evil," even though the Bar almost certainly would assume that he is, for example, promising fidelity to what is ordinarily termed "constitutional law"?  

I am, of course, also interested in what it means to "sign the Constitution" at places like the National Constitutional Center in Philadelphia, which does indeed invite visitors to do so after touring their exhibit and walking through "Founders Hall."  I refused to do so, since I think we have a defective Constitution.  Was I wrong, or should I have simply said, in effect, that I'm signing the "Constitution of my dreams," as amended through Article V or, since I am an Ackermanian/American, well outside of Article V?  

Perhaps the real point is that no one really takes oaths all that seriously, since all sorts of Wittgensteinian "mental cramps" are generated if one really tries to figure out what an oath genuinely "means."  

sandy