Paul needs to recur to his nearest treatise on international law if he
thinks that treaties cannot be amended by the Senate in the course of
ratification. Really, I think he's pulling our collective leg.
The explanation the Virginia Federalists offered was not an amendment,
however, but the common sense of the thing, as I explore in chapter 3 of
_The Politically Incorrect Guide to the Constitution_.
As to who is a good lawyer, Paul, please consider this quotation from
George Nicholas (later Kentucky's first attorney general), from page 86 of
_Virginia's American Revolution_:
"If thirteen individuals are about to make a contract, and one agrees to
it, but at the same time declares that he understands its meaning,
signification and intent to be, what the words of the compact plainly and
obviously denote; that it is not to be construed so as to impose any
supplementary condition upon him, and that he is to be exonerated from it,
whensoever any such imposition shall be attempted -- I ask whether in this
case, these conditions on which he assented to it, would not be binding on
the other twelve? In like manner these conditions will be binding on
Congress. They can exercise no power that is not expressly granted them."
Nicholas was a very able lawyer, which one supposes to be one of the
reasons why, according to the nineteenth century's leading historian of
Virginia's ratification debate, James Madison often allowed him to serve
as Madison's spokesman. The statement above is a clear statement of the
doctrine of "meeting of the minds," an essential element in the formation
of any contract and -- according to the several treatises I consulted --
of any treaty.
Prof. Finkelman's reading seems to be that it doesn't matter what the
Virginia Federalists told their fellow Virginians the Constitution would
mean, because its meaning would depend on much later developments in the
minds of, e.g., Abraham Lincoln and William Brennan. I concede that that
is a common theory in legal academia -- to some extent, even, one to which
one must adhere in order to obtain employment in a prestige law school or
history department. Still, stated thus baldly, it does not seem as
attractive as Thomas Jefferson's alternative notion that the Constitution
should be interpreted according to the explanation of it offered by its
friends during the ratification process. (See _Virginia's American
Revolution..._, chapter 4, which is a slightly amended version of an
article that appeared in the Journal of Southern History in 2000.)
Jefferson too, it seems, believed that government by consent of the
government entailed interpreting the Constitution as meaning precisely
what the people had consented it should mean.
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]>
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Re: [VA-HIST] Ratification of the Constitution
Firing guns at US forts is an act of war or an act of Revolution, and
Kevin, you are a good enough lawyer to know that when you make an
amendment to an agreement that all parties have to initial it. They did
not. Lots of ratification conventions had all sorts of stuff added to
their ratifications. None of it was binding on anyone, unless all of the
parties agreed.
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
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>>> Kevin Gutzman <[log in to unmask]> 06/30/08 10:45 AM >>>
To exercise a constitutional option to withdraw is not revolution.
Virginia Federalists insisted that Patrick Henry's repeated warnings that
the new federal government would claim inherent power to do whatever it
wanted were unfounded because the federal government had only the powers
it was "expressly delegated" (Governor Randolph's phrase) and, since
Virginia was to be one of thirteen parties to a compact, its understanding
would govern. If its understanding was not congruent to that of other
states, there was no "meeting of the minds" (a concept that is as
essential to the law of treaties, according to the several treatises I
consulted on this matter) as to the law of contracts -- and Virginia could
secede on that basis.
But, as I said before, there WAS a meeting of the minds on this question,
as is demonstrated by the fact that Federalists in New York and Rhode
Island made the same assurances as did Randolph and Nicholas (for a
committee including Madison and Marshall).
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]>
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I use Jefferson's theory of the right of revolution as set out in the
Declaration of Independence.
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
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>>> Kevin Gutzman <[log in to unmask]> 06/30/08 10:19 AM >>>
Paul Finkelman's theory would have more weight if the Federalists had not
expressly told their fellow Virginians during the ratification process
that they could withdraw from the Union if it came to that. (Federalists
in Rhode Island and New York made similar assurances.)
Paul's definition of "constitution" is of more recent vintage than the one
in use in the Virginia ratification process. Again, see chapter 3 of my
book.
Jefferson had no role in the ratification process, so who cares what he
thought about it? We might as well ask what Paul thinks about it --
except that he's less famous than Jefferson.
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]>
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There is an alternative theory that is not based on who wins the war.
1: It is never possible to unilaterally break a contract or agreement.
This is especially true with a Constitution. If Va. wanted out Va. need
to get a Constitutional Amendment or at least an act of Congress to end
the relationship. If one party wants out of a marriage there is an
obligation to go get a divorce; not simply take whatever property he/she
can grab and walk out the door and say Ihave divorced you by my own fiat.
2: Jefferson sets out a theory of when a Revolution is justified. One
aspect of that is when people have no representation. Clearly that was
not the case in 1861 for Va. or any other would-be Confederate state. They
had representatives in Congress, people from those states sat in the
Courts, were in the military as officers; were government employees. They
could vote in national elections. More Virginians had been president than
people from any other state. Thus, it is had to imagine what "long train
of abuses" had been imposed on Virginia or any other southern state.
Certainly, it cannot be that revolution was justified because in the past
decade a dozen or so fugitive slaves had been rescued by northern mobs? As
recently as Oct. 1859 the U.S. government had in fact sent troops to Va.
to suppress a rebellion at Harpers Ferry. Had the US Gov. EVER violated
its obligations to protect the rights of Virginians or had it done so
itself?
3: To put it another way, Brent, can you come up with a few examples of
how the rights of the people of Va. had been "perverted to their injury
or oppression" by the United States government?
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
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>>> "Tarter, Brent (LVA)" <[log in to unmask]> 06/30/08 9:55 AM
>>>
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
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Please visit the Library of Virginia's Web site at
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