It is a writtne Constition that we are interpreting.
mallapollack3 at gmail.com
Tue Sep 21 06:13:52 PDT 2010
Yes the Constitution is written, but writing changes meaning depending on
the needs of the reader. As the conversation has amply demonstrated, the
document had no determinate meaning when ratified == except at a very high
level of abstraction. I believe Lynch wrote a wonderful short book "The
Negotiated Constitution." The "original" meaning of the document was that
its ratifiers agreed to figure out compromise responses to then-unresolvable
disputes at later dates.
On Tue, Sep 21, 2010 at 7:38 AM, Calvin Johnson <CJohnson at law.utexas.edu>wrote:
> I guess it depends upon whether it is a written Constitution
> that we are interpreting. The Framers took out the expressly delegated
> limitation in the Articles because it had proved disastrous to the Union and
> they wanted the unemerated federal passport. The Committee of Detail which
> wrote the words faithly executed its mandate to dress for the public the
> Resolutions of the Convention as a whole. The binding Resolution as to
> section 8 was the Congress was to have the power to legislate in all cases
> for the common interest of the Union. The Committee of Detail picked up
> "common defense and general welfare" as the jurisdictional standard from the
> Articles of Confederation. The necessary and proper clause says that since
> Congress can tax and spend for the common defense and general welfare, it
> use any other tools within that scope.
> The Consititution was ratified by delegates representing
> two thirds of the country -- a landslide in modern terms. The moderate
> Anti-Fedralists who made the difference in the last critical states
> switched over because it was a done deal and because they wanted to be part
> of the Unioin. They huffed and puffed and wanted something more to their
> likeign but once it was clear that it was this Constitution or nothing, they
> chose Union. Look at Randoph. He left the Convention opposed because the
> C gave too much general power to the C.ongress Then he changed his mind and
> indeed writes one of the best pamphlets explainign why we needed to pay the
> War debts and one of the most persuaive pieces in tnhe debate. His motive
> he said was that he would rather give up his right arm than break up this
> Union. Disunion was a terrible accusation, it was waht awful people like
> Patrick Henry wanted. And the the critical moderate AntiFederalists in the
> end rejected disunion. The peicee that carried NY was John Jays address to
> the people of NY. "We have fought a long and bloody war against the
> strongest nation on earth, and prevailed by Unity." We are one people of
> the same language and basic habits and religion. United we stand, divided we
> fall. "We are a band of brothers." No one could resist that one.
> The Constitutoin was ratified notwithstanding the AntifFederalists had it
> right and said so loudly, publcally and correctly taht the Constituion had
> no words that said the listed examples of COngressional power
> were exclusion. The AFs were dead right that the Federalists were
> "spinning" as to lmitations, The country as a whole at some point in some
> way knew it. Pinckney told NC that htis Constituion gave only the powers
> expressly delegated to it, knowing I assume that that phrase was deleted on
> purpose and not replaced. If the Country believed Pinkney, tis just exactly
> the same reason they believed Nixon on Watergate: The alternative was to
> elect McGovern and they woudl rather believe Nixon (who was lyign) than vote
> for MCGovern. There ia lot of disconnect by people who wanted to believe.
> The analogy is too rough but right: Germany chose to believe
> Hilter because they wanted to believe. The Social Democrats who pointed out
> that Germany was defeated on the field in WWI were right. The generals told
> Berlin to sue for peace because they were going to lose on the front. There
> was no stab in the back by Jews or civilian politicians. But the will to
> believe was too strong: 80% chose to belive in German power and the stab in
> the back, without regard to the fact. So too the Constitution was going to
> be ratified, without regard to the AntiFederalist true arguments. THe need
> to pay the war debts was too desparate and the pull of the Union was too
> storng. George Washington and Benjamin Franklin endorsed it. Good enough.
> Note too that as soon as this revolutionary Constituion was
> ratified Anti-Federalism ceased to be legitimate. They held only 13% of
> pwoer in teh First Constituion, they were stigmatized fro being against
> Washington and this Union. IT ceased to be a viable banner that politicians
> could run under. This retro-active praise of the great Anti-Federalsit
> thinkers sure misses the boat about how they were interpreted at the time.
> In the end however, it is not a historical trend that governs but
> the writing. Historical trends can be undone, eg by Jeffeson's Revolution
> of 1800 taht turned fedrealism/ states upside down, and again by the New
> But is it not a written Constitution that we are interpreting?
> *From:* Kurt Lash [Kurt.Lash at lls.edu]
> *Sent:* Monday, September 20, 2010 11:05 PM
> *To:* Calvin Johnson
> *Cc:* Sanford Levinson; ConLawProf (conlawprof at lists.ucla.edu)
> *Subject:* Re: It is a writtne Constition that we are interpreting.
> I'm not sure if Calvin means to commit himself to an originalist
> understanding of the Constitution--he may simply be saying that if you
> follow originalism, you should accept that everyone who ratified the text
> was on notice that it bestowed general (unenumerated) power. This was the
> warning of the anti-federalists and Calvin believes that they were right.
> But the most defensible forms of originalism look for the understanding
> of the ratifiers. If the ratifiers accepted the meaning of the document as
> explained by Federalist proponents like Alexander Hamilton, John Marshall,
> James Madison, Charles Pinckney and Edmond Randolph, then that's the
> understanding that controls. All of these men insisted that the federal
> government had only limited enumerated powers and that the people in the
> states retained all non-delegated sovereign authority. Hamilton, for one,
> was quite clear on this point in the New York Convention.
> If the antifederalists had convinced the ratifying conventions that the
> Federalists were incorrect (or lying) then the Constitution would have never
> been ratified (other than Calvin, I am not aware of a single historian who
> disagrees with this). Nor were these Federalist promises of limited
> enumerated power inconsistent with the text. In fact, the Ninth Amendment
> expressly declares that there are additional limits to federal power beyond
> those expressly enumerated in the Constitution. In his speech against the
> bank of the United States, Madison cites both the Ninth and Tenth as
> declaring in writing what had already been the promised meaning of the
> original text. Even if one dismisses this speech as post hoc "spin," one
> still has the numerous declarations in the ratifying debates.
> In short, I think that Calvin is right to point to the text, but that
> text declares a limited delegation of federal power. So did the Federalists
> promoting the Constitution. And they won. For the remainder of his life,
> without exception, Madison continued to insist that this limited
> construction of federal power must be enforced by the courts in a manner
> consistent with the understanding of the ratifying conventions.
> Kurt T. Lash
> Alumni Distinguished Professor of Law
> Co-Director, Program in Constitutional Theory, History and Law
> University of Illinois College of Law
> PS: I examine this history in some detail in my book, The Lost History of
> the Ninth Amendment (Oxford Press 2009). See also, The Original Meaning of
> an Omission: The Tenth Amendment, Popular Sovereignty, and "Expressly"
> Delegated Power (
> ---- Original Message -----
> From: Calvin Johnson <CJohnson at law.utexas.edu>
> Date: Monday, September 20, 2010 3:45 pm
> Subject: RE: It is a writtne Constition that we are interpreting.
> To: Sanford Levinson <SLevinson at law.utexas.edu>, "ConLawProf (
> conlawprof at lists.ucla.edu)" <conlawprof at lists.ucla.edu>
> > No question. Madison turned from being the best ally of Hamilton
> and the Washington Administration to being best ally of Jefferson. He
> outnationalizes Hamilton in wantimg a veto on state legislation and a
> federal land tax in 1787-88, then turns against GW and Hamilton. By 1791 he
> has renounced Federalist 10, as Judas did, by saying that only in a
> homogeneous small republic like Virginia could republican virtues prevail.
> > Madison was not on the Committee of Detail or Style that wrote the
> Constitution. They were athe committee that polished Bedford Amendment that
> Congress could legislate for the general interest in every case. And took
> out the expressly delegated limitation. Madison often spun, indeed beyond
> the bounds allowed by spinning, but the writing is eternal and the ink was
> dry on Spet 18, 1787, maybe even late on 17th.
> > 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 with links to publications:
> > For reviews, and chapters of Johnson, *Righteous Anger at the Wicked
> States: The Meaning of the Founders Constitution* (Cambridge University
> Press 2005) see
> *> From:* Sanford Levinson
> *> Sent:* Monday, September 20, 2010 2:22 PM
> *> To:* Calvin Johnson; jon.roland at constitution.org; Robert Sheridan
> *> Cc:* ConLawProf
> *> Subject:* RE: It is a writtne Constition that we are interpreting.
> > The obvious problem with citing Madison on this point is his speech to
> the House on the unconstitutionality of the Bank of the United States (which
> functionally begins our casebook). It may well represent only a given data
> point in Madison's not altogether consistent journeys, but there it is.
> > sandy
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