Real originalism v. Anachronists.

[Calvin Johnson]

Lawrence--

Apart from my foolish scholarly pride at having found TJ frist take in Boyd, a hard copy chron collection of TJ, the underlying argument is right:

         The C has no expressly delegated or any other enumeration  limitation because the Framers took it out in drafting on purpose.  Randolph in Va. Rat, is good witmess because Committee on Detail didit, and he says the limiation had been disastrous to the Union and they wanted the unemerated passport.   Wilson and then everyone else spun (aka liied beyond spinning) to say that expressly lmited was still there and the Anti-Federalitst objected.  There was no words of limitation in teh C, and the claim was gratis dictim(TJ) having no support int he written Constituion.  The AF are right on the merits.
   Relatedly, the Committee on Detail had a mandate just to dress for public the Resolutoins passed on teh full floor and the   governing resolution here was the Bedford resolution that "Congress was to have the full power to legislate in all cases for the general  interest. "  The Committee on Detail effected their mandate faithfully, however, taking the phrase from the A/C that Congress would charge expenses "for the common defense and general welfare" to the Treasury as their synonym for "legislate in all cases for the general interst."

         If the Federalist promised that the Congress would stay within enumerated bounds, they did not do so in the wirtten Constituion, which iis, after all, what we are interpreting.

10th Amendment is a sop, and Federalists refused to put expressly delegated back in, so as to leave implied powers.  Nothing in the debates set what power are implied but they exist.  Dont need much since the general jurisdiction of the section 8 is common defense and generla welfare.

________________________________
From: Lawrence Solum [lsolum at gmail.com]
Sent: Sunday, September 19, 2010 10:25 PM
To: Calvin Johnson
Subject: Re: Scope is for the General Welfare.

Calvin,

Try googling the passage.  It is available at multiple locations.

Larry

On Sun, Sep 19, 2010 at 10:03 PM, Calvin Johnson <CJohnson at law.utexas.edu<mailto:CJohnson at law.utexas.edu>> wrote:
I am still right, although I dropped and forgot the prior sentence.   Jefferson is listing objections and (1) is absence of BR and (2) absence of the expressly delegated limiation in the Articles of Confederation that would mean that the listed pwoer were exclusive.   They aretn.  The framers took out the expresssly delegated lmit because it had been disastrous to the Union. Even the [unenermerated] passport had been challenged.    These are two separate objections to the C, that Jefferson is picking up from his other AF correspondents.

The editorial headinote "Jefferson on the Ommission of A Bill of Rights"  is bad  editorializing for what the editor wants the passage to say.  Who wrote the headnote?
  What are you quoting from?  I did not iknow my passage had been picked up by any other secondary soruce.  I was rather proud of finding it.


________________________________
From: Lawrence Solum [lsolum at gmail.com<mailto:lsolum at gmail.com>]
Sent: Sunday, September 19, 2010 11:27 AM
To: Calvin Johnson

Subject: Re: Scope is for the General Welfare.

Calvin,

You wrote "No, its about enumerated powers.    Nothing in the discussion about Bill of Rights." with reference to this passage:

Jefferson, in his first reaction to the Constitution, thought the claim to an expressly delegated limit to Congresss  “might do for the [crowd before Independence Hall] to whom it was addressed, but is surely gratis dictim, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation, which declared that in express terms.

So I assume that you were quoting a different passage than the following:

I will now tell you what I do not like. First, the omission of a bill of rights, providing clearly and without the aid of sophism for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the laws of nations. To say, as Mr. Wilson does, that a bill of rights was not necessary because all is reserved in the case of the general government, which is not given, while in the particular ones, all is given which is not reserved, might do for the audience to which it was addressed, but it is surely a gratis dictum [a mere assertion], the reverse of which might just as well be said; and it is opposed by strong inferences from the body of the instrument as well as from the omission of the clause of our present Confederation, which had made the reservation in express terms.

Thomas Jefferson: On the Omission of a Bill of Rights from the Constitution

On Sun, Sep 19, 2010 at 10:54 AM, Calvin Johnson <CJohnson at law.utexas.edu<mailto:CJohnson at law.utexas.edu>> wrote:
> No, its about enumerated powers.    Nothing in the discussion about Bill of Rights.    There are more Anti-Federalists than I quoted saying there are no words of limitation in this constituion and none intended.  They win the argument.
>
Jefferson, in his first reaction to the Constitution, thought the claim to an expressly delegated limit to Congresss  “might do for the [crowd before Independence Hall] to whom it was addressed, but is surely gratis dictim, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation, which declared that in express terms.


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