I said I would bow out and I will, but I want to make two points.

First, I would like Kevin to show me one place in this discussion where I suggested that the Constitution of 1787 created an "unlimited" central government.  Since he has (I assume) read my book Slavery and the Founders, he knows that I have long argued that the Central Government had no power to end slavery where it existed, and since slavery was the key issue of the era, that point alone should suffice to illustrate that I am not arguing the constitution of 1787 or even the constitution of today created such a regime.  Again, take a look at my articles on states rights in the antebellum period and the use of separate and independent state grounds for civil liberties in the modern period.  Arguing that there is not right to secession does not lead to the conclusion the central government had unlimited powers.

To argue secession was illegal does not imply an "unlimited federal government."  The two are not the same at all.  My point is that there is nothing to justify secession in 1860.  The South had effectively won every presidential election by two since 1788.  (the two adams administrations); the had controlled the Supreme Court for all but a handful of years; and had also controlled the House and Senate more often than not.  Lincoln won and suddenly the cry babies wanted to take their football and go home because they had lost an election. If Losing the election is not grounds for revolution.  Since the Constitution does not have a clause allowing a unilateral withdrawal, there is not way to leave short of statute or amendment.  The South might have gone to the Congress in Dec. 1860 and asked for a statute allowing the states to leave. Buchanan would surely have signed such a law and Taney would have upheld it.  

Even if someone you can construe the Va. signing statement (that IS what it is) to allow for withdrawl, there had to be a reason other than "we don't like the result of the election."  Calling for troops to suppress the unwarranted firing on a federal fort was emphatically not an attack on Va. The offer of President Lincoln to put a Virginian in charge of the army (to replace the Virginian -- Scott -- who was already in charge of the Army) underscores that even by the standards of the Va. signing statement, Va had  no legal or legitimate reason to pull out. 




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 3:58 PM >>>
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
______________________________________
To subscribe, change options, or unsubscribe please see the instructions at
http://listlva.lib.va.us/archives/va-hist.html

______________________________________
To subscribe, change options, or unsubscribe please see the instructions at
http://listlva.lib.va.us/archives/va-hist.html