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
518-445-3386
[log in to unmask]
>>> Kevin Gutzman <[log in to unmask]> 6/30/2008 12:02 PM >>>
I here forward Prof. Finkelman's reply to a post I inadvertently sent only
to him, which is included below as well.
The chief point of disagreement between Finkelman and Gutzman is that
Gutzman finds attractive the common 18th-century notion that the meaning
of a constitution, like that of a contract or treaty, depended on the
understanding of the parties at the time of ratification. I think that
this is the only hermeneutical approach under which constitutions could
serve their intended purpose: what one Virginian called binding officials
down from mischief. (No notable Virginian forthrightly disputed this
notion.)
For Finkelman, who apparently prefers a Hamiltonian/Brennanite approach,
the Constitution means what the Guardians (including Finkelman; that's why
it's fun to be a law professor) say it means. The impact of the Finkelman
approach is the subject of my next book, coming out July 8, _Who Killed
the Constitution? The Fate of American Liberty from World War I to George
W. Bush_.
KG
----- Forwarded by Kevin Gutzman/History/WCSU on 06/30/2008 11:56 AM -----
"Paul Finkelman" <[log in to unmask]>
06/30/2008 11:55 AM
To
<[log in to unmask]>
cc
Subject
Re: [VA-HIST] Ratification of the Constitution
it is not htat I do not care what they said; it is that it was
constitutionally and legally irrelevant.
You seem to have only sent this to me, so you can use "you" instead of
"Paul"
Paul Finkelman
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
518-445-3386
[log in to unmask]
>>> Kevin Gutzman <[log in to unmask]> 06/30/08 11:46 AM >>>
Secession is not disobedience to the Constitution if the Constitution was
understood as including a right to secede. Paul seemingly is unfamiliar
with the explanation of the Constitution offered by the Virginia
Federalists, and he doesn't care what they said about it. Secession was
illegal, period, because he says so. This reminds me of Eric Foner's
great unhappiness at the idea of Lithuania leaving the Soviet Union.
Paul apparently thinks that Jefferson erred in holding that the
Constitution should be understood to mean what its advocates said it meant
at the time they were advocating it. This makes an odd burlesque of all
of the Federalists' vows, insistences, promises, etc. Were they lying,
then, or just lawyering?
Kevin
Kevin R. C. Gutzman, J.D., Ph.D.
Associate Professor of History
Western Connecticut State University
See _Who Killed the Constitution? The Fate of American Liberty from World
War I to George W. Bush_ on Amazon.com!
"Paul Finkelman" <[log in to unmask]>
06/30/2008 11:28 AM
To
<[log in to unmask]>
cc
Subject
Re: [VA-HIST] Ratification of the Constitution
I have no idea what your point is; I did not say that Virginia could pull
out of NATO; of course VA. ia obligated to obey any treaty we have; just
as Va. was obligated to obey the US constitution and any laws passed under
it; which is why secession was illegal.
The US could withdraw from NATO by breaking the treaty; but ratification
of the Constitution was not like a treaty; VA gave up sovereignty by
ratifying and could only get it back (and thus leave the nation) through a
Constitutional Amendment or perhaps an act of Congress. Any other method
was clearly a revolution. The reference to Jefferson earlier was to set
out the legitimate reasons for revolution (a long train of abuses, etc.)
which clearly had not happened to VA or any other southern state.
Kevin claims that in 1776 there is not difference between state and
sovereign nation, BUT the key date here is 1787-88 when by ratifying the
Constitution the states agreed that IT and the laws under it were the
Supreme Law of the Land.
Any comments that the Va. convention made as to what it was doing, beyond
ratifying the Constitution,had no force under the Constitution.
Paul Finkelman
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
518-445-3386
[log in to unmask]
>>> Kevin Gutzman <[log in to unmask]> 06/30/08 11:14 AM >>>
Paul needs to reread the Supremacy Clause. All US treaties are the
supreme law of the land.
Virginians thought their state was sovereign. That's why the US
government was called a federal government. That's why the Declaration of
Independence called the former colonies "states," not "provinces." The
distinction that Paul is making between a "state" and a "sovereign nation"
was unknown in 1776.
Kevin
Kevin R. C. Gutzman, J.D., Ph.D.
Associate Professor of History
Western Connecticut State University
See _Who Killed the Constitution? The Fate of American Liberty from World
War I to George W. Bush_ on Amazon.com!
"Paul Finkelman" <[log in to unmask]>
06/30/2008 11:03 AM
To
<[log in to unmask]>, <[log in to unmask]>
cc
Subject
Re: [VA-HIST] Ratification of the Constitution
The NATO is an international compact of sovereign nations; the NATO
charter is not the Supreme Law of the Land.
Paul Finkelman
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
518-445-3386
[log in to unmask]
>>> Kevin Gutzman <[log in to unmask]> 06/30/08 10:41 AM >>>
It's not breaking a contract to exercise a contractual option to withdraw,
any more than it would be to pull out of the UN or the NATO. Do you think
that Spain and Germany would be entitled to burn your house down if the
USA decided to withdraw from the UN or NATO?
George Nicholas and Governor Edmund Randolph, the two spokesmen for the
five-man committee that drafted Virginia's instrument of ratification
(handily provided to us by Brent Tarter earlier), explained that VA was to
be one of thirteen parties to a compact and that it could withdraw at
will. This was the common understanding of the "federal republic" in
1788, as well. All of this is recounted in chapter 3 of my book.
Marshall and Madison were two of the other three members of that
committee, and they sat silently through that explanation. Again, see
chapter 3 of my book.
Washington's views on this issue were unknown at the time. He apparently
did believe that Virginia was sovereign, however, as he thought that it
could withdraw both from the British empire and from the Confederation. On
the issue of Virginians' conception of their society's place in the world,
see chapter 1 of _Virginia's American Revolution_ and my article,
"Jefferson's Draft Declaration of Independence, Richard Bland, and the
Revolutionary Legacy: Giving Credit Where Credit Is Due," The Journal of
the Historical Society 1 (2001), 137-154.
Kevin Gutzman
Kevin R. C. Gutzman, J.D., Ph.D.
Associate Professor of History
Western Connecticut State University
See _Who Killed the Constitution? The Fate of American Liberty from World
War I to George W. Bush_ on Amazon.com!
Paul Finkelman <[log in to unmask]>
Sent by: Discussion of research and writing about Virginia history
<[log in to unmask]>
06/30/2008 10:23 AM
Please respond to
Discussion of research and writing about Virginia history
<[log in to unmask]>
To
[log in to unmask]
cc
Subject
Re: [VA-HIST] Ratification of the Constitution
Kevin: Are you claiming that people like John Marshall and James Madison
and George Washington believed that VA. could pull out of the US govt.
whenever 50.1% of the legislature called for a convention and 50.1% of
the delegates of that convention said, "let's break our contract with the
rest of the US and leave"?
Paul Finkelman
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
518-445-3386
[log in to unmask]
>>> Kevin Gutzman <[log in to unmask]> 06/30/08 10:14 AM >>>
One little quibble with Brent Tarter: it isn't rebellion or treason to
act pursuant to the established constitution. Thus, if what Virginia did
in 1861 was consistent with its obligations under the Constitution, it
wasn't rebellion, any more than for the USA to withdraw from the UN or the
NATO would be treason or rebellion.
The leading Virginia Federalists of 1788 repeatedly told their compatriots
in the ratification convention that they could secede from the Union. See
chapter three of my _Virginia's American Revolution: From Dominion to
Republic, 1776-1840_ (Lanham, Maryland: Lexington Books, 2007) on this
topic.
Kevin Gutzman
Kevin R. C. Gutzman, J.D., Ph.D.
Associate Professor of History
Western Connecticut State University
See _Who Killed the Constitution? The Fate of American Liberty from World
War I to George W. Bush_ on Amazon.com!
"Tarter, Brent (LVA)" <[log in to unmask]>
Sent by: Discussion of research and writing about Virginia history
<[log in to unmask]>
06/30/2008 09:55 AM
Please respond to
Discussion of research and writing about Virginia history
<[log in to unmask]>
To
[log in to unmask]
cc
Subject
[VA-HIST] Ratification of the Constitution
I believe that Kevin Hardwick has overlooked an interesting and
pertinent fact about ratification of the Constitution.
When the Virginia Convention voted to ratify the Constitution in June
1788, the instrument of ratification began with this language:
"WE the Delegates of the people of Virginia, duly elected in pursuance
of a recommendation from the General Assembly, and now met in
Convention, having fully and freely investigated and discussed the
proceedings of the Federal Convention, and being prepared as well as the
most mature deliberation hath enabled us, to decide thereon, DO, in the
name and in behalf of the people of Virginia, declare and make known
that the powers granted under hte Constitution, being derived from the
people of the United States may be resumed by them whensoever the same
shall be perverted to their injury or oppression, and that every power
not granted thereby remains with them and at their will. . . ."
The Ordinance of Secession that the Virginia Convention of 1861 proposed
in April 1861 and that a majority of the people who voted in the
referendum ratified in May specifically cited that clause in the
Virginia instrument of ratification.
There is a clause in the Virginia Declaration of Rights of 1776 that
since 1830 has been part of the Virginia Constitution that reserves to
the people the right of revolution.
Does or did that make secession legal? It certainly did in the eyes of
the people who approved of it in 1861. Did the outcome of the war in
1865 effectively render secession impossible, illegal, or
unconstitutional? If you revolt and win, it's revolution; if you revolt
and lose, it's treason because the winners get to set the terms.
Brent Tarter
The Library of Virginia
[log in to unmask]
Please visit the Library of Virginia's Web site at
http://www.lva.virginia.gov
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