I am not sure where all this fits in the Va-hist. thread. I certainly
don't want to turn this into a conlaw list serve (I am on enough of
those already)
But, I will say something about the federalists of 1787 and the
antifederalists. The Anti-feds were the big losers. They did not want
the Constitution at all; they wanted a second convention to rewrite and
undo what the first did. Many of them, like Henry in Va., used the Bill
of Rights as a tool to defeat the Constitution (which is why Madison
called them "dishonest"). In COngress thr only opposition to the BoR was
from the few antifederalists in the House and Senate. WHen the Bill of
Rights came to the state Henry opposed it and Va. was the last state ot
ratify the BofR. That is because the core anti-feds, like Henry, Lee,
Mason and Clinton in NY all knew that if the BoR was ratified they would
NEVER get a second convention to undo the Constitution. They were right
on that score; once the BoR was in place the antis simply disappeared;
Henry became a federalist (he like to be on the winning side); while
people like ELbridge Gerry form Mass. and James Monroe from Va. became
Jeffersonian REpublicans.
So, bottom line; the A-Fs lost and the Federalists won.
Paul Finkelman
Walter Waddell wrote:
> I hope that I don't "muddle" or "ruffle" this "thread" further. My view is our
> U.S. Supreme Court decisions on a case by case basis -- are independent (in
> theory) of any collective or individual view by any one of us -- "we" -- the
> people. We can hash over the correctness, applicability, and, the "intent" as
> superficially or as expansive and deep as we please, but, those decisions stand
> and are and have been historically respected until such time as a new "twist" is
> formally brought before the Court and another decision is made. The genius or
> luck of our Founders was fashioning a system that seems to bring relative peace
> and order (the Civil War notwithstanding), not necessarily complete truth and
> justice, to an ever increasing people of immense diversity of character,
> beliefs, backgrounds, environment, aspirations, and all the other adjectives
> that describe the human condition.
>
> In theory and hopefully in practice, demonstrating on the steps of the U.S.
> Supreme Court or any other court of the land does nothing to promote or diminish
> the cause for the particular case before that court -- that perception goes a
> long way to hold our darker side in check (in my opinion).
>
> To our Founders credit, they fashioned the system to allow even those
> demonstrators for or against to "parade" before the Supreme Court, where (again
> in my opinion), of all places, they shouldn't be allowed since, in theory, our
> judges should be absolutely free to decide each case on the facts and the law
> only (this is my personal view and can be and is being attacked with reasonable
> arguments as being too narrow in light of the ever changing and increasing human
> aspirations and expectations).
>
> In the end, if you don't like their final decision -- you get your
> representatives to write a better law to your point of view that stands the test
> of "constitutionality". The recent Kelso vs. RI is an example. In my opinion,
> generally regarded as a "bad" decision (again my opinion), both states delegates
> and federal representatives are flooding the agenda with legislation to
> "overturn" the effects of that decision.
>
> On the matter of the First Amendment, "Similarly, in the school prayer cases the
> Court ruled that prayer in
> public schools constituted an establishment of religion by the state, in
> violation of the 1st and 14th Amendment." -- We are seeing the same "struggle"
> "lawfully" going forth.
>
> Just for discussion and not for the truth or accuracy thereof, if you fail to
> insert the words "state mandated", "school organized", or "teacher endorsed", or
> similar modifier in that sentence, you leave the question open to a "case
> attack" should a public school teacher prevent or discipline a child from
> folding hands, closing the eyes, and displaying a "perceived" look of engaging
> in silent prayer before a test.
>
> Previously I "optioned" that the Virginia vote to leave the Union was never
> settled by law. I am also of the opinion that Virginia never officially enabled
> a "first strike" act of violence against the Union. I don't know that either of
> these statements are fact. I raise these issues, theoretically, for the purpose
> of examining the 9th and 10th Amendments to ask this: of what value where they
> when originally adopted? Where and how have them be "employed" previously in our
> history? Are they the "nuclear option" so to speak? And as a matter of
> practicality, are they of any worth to our experience and "experiment" today,
> and, more importantly, tomorrow? In general, I believe I am making the case that
> if you were able to bring forth our Founders to stand in evaluation of their
> work -- the Federalist would say that they won and the Anti-Federalist would
> admit that they lost. I ask of you is that a fair and accurate statement?
>
> Americans don't like "ties" -- it's win or lose. The NFL "overtime" rule
> supports my assertion.
>
>
>
> --
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--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma 74104-2499
918-631-3706 (office)
918-631-2194 (fax)
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