Made up History

[Calvin Johnson]

But of course the worst course of all is the Barbie Dolls in the Archeological Dig in which fake history is said to bind us. The US Constitution for example in text and intent gives Congress the power to "enact legislation in any case for the general interests of the Union"    The 1787 Constitution is a grand victory by the Nationalists over their localists Anti-Federalists opponents and it is a viciously nationalist document.  The only states right in this Constitution is the right to veto Congressional carve outs of territory and even that was given just about the right amount of respect in the formation of West Virginia.  Because the regular state government in Richmond was preoccupied at the time, the carve out of West Virginia was approve4d by the provisional government of Virginia meeting in Wheeling.   Now Jefferson would have approved of all the current Supreme Court's hobbles on the federal government in favor of the states and in protection of slavery, but Jefferson was in Paris as this Constitution was adopted and you can his views into the Constitution only by renouncing Jon Roland's origiinalism to pull in views more in accord with modern Tea Party from the people who lost 1787.

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: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
For an inventory of Shelf Project proposals see  http://www.utexas.edu/law/faculty/calvinjohnson/shelf_project_inventory_subject_matter.pdf
For reviews, and chapters of 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/

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Jon Roland
Sent: Monday, March 05, 2012 9:42 AM
To: conlawprof at lists.ucla.edu
Subject: Re: Another way by which history legitimates judicial review

Like it or not, a commitment to a rule of law means a commitment to enactments as they were meant and understood by the lawgivers, not as they might be understood by later generations, or as mere suggestions to be discarded if they conflict with present policy preferences. Correct interpretation of past writings, including legal writings, is possible with due diligence, and the exercise of that diligence is a kind of expertise. However, such expertise is not supposed to be confined to specialists. The commitment to a written constitution of government is a commitment to making such expertise generally diffused throughout the population, because only the people can enforce constitutions, and they had better get it right. Our job is to help them get it right, and we have been derelict in that.

On 03/05/2012 07:42 AM, James Wilson wrote:
As far back as Lord Coke, lawyers and judges have used "expertise"
   to justify their power. Coke told a skeptical King that only lawyers
   could decide certain issues because of their "artificial reason,"
   gained by long study and experience. While that argument is easily
   applicable to areas like torts and contracts, it is less compelling
   when used to defend robust constitutional judicial review. Does it
   really take a great deal of legalistic expertise to resolve such
   contentious issues as affirmative action, abortion, gun control, or
   campaign finance?




-- Jon



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