Actually, no, what I am saying isn't like the signing statement at all.  By
means of his unprecedentedly broad use of signing statements (topic of a
chapter in my forthcoming book, by the way), President Bush claims
authority for himself beyond that contemplated by the Constitution.  (That
is, unless one reads the Constitution in a Hamiltonian way.)

On the other hand, the Federalists' explanation of their handiwork that I
have described is perfectly consistent with what had come before -- in the
recognition of states' sovereignty by calling them "states" and by explicit
retention of that sovereignty in the Articles of Confederation, for
example.  And unlike Bush, the Federalists were claiming that their
new-fangled government would have less, not more, power through their
explanation.

Never did the states concede their sovereignty between the ratification of
the Articles and 1788.  The Federalists insisted, over strong objections,
that it would remain even after ratification -- as indeed it did, since
there was nothing in the Constitution surrendering it.

Paul wants to build an argument for unlimited central government on the
idea that Federalist advocacy of the Constitution was at root a tissue of
lies, because they were going to do what they wanted with their new power
despite the limitations of the people's consent.  His point, it seems, is
that consent was really a sham, that the aristocrats -- Nicholas, Randolph,
Pinckney, Wilson -- were just gulling the masses in telling them it was a
limited government, a federal republic, and not a national government.
Paul sounds exactly like Patrick Henry and George Mason, "Ritt" Lee and
William Grayson, who warned their fellow Virginians that that was what the
Federalists were up to.  Perhaps he's right, but I don't think so; I think
that the dishonesty came later.

I guess we'll have to leave it there.
Kevin Gutzman

I love having someone else characterize me and say whose side I am on. I
would ask Kevin, since he seems so tied to text and originalism, to point
to the part of the US Constitution that says a state may unilaterally
withdraw after ratification.  If he can find that part then we are on the
same page; if not, then it seems to me that he is the one who wants to
avoid the text to come up with some extraneous, non-constitutional argument
of some politicians explaining that what they are doing is not what they
really are doing. It is very much like President Bush's latest innovation
in Constitutional law, the "signing statement."

But, I will with draw from this discussion now and get back to work.

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494
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