of course they can be amended and the other parties can agree or the treaty can end. That happens all the time; but the Constitution was not a treaty. 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 11:31 AM >>> 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]> Sent by: Discussion of research and writing about Virginia history <[log in to unmask]> 06/30/2008 11:05 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 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 [log in to unmask] >>> 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]> Sent by: Discussion of research and writing about Virginia history <[log in to unmask]> 06/30/2008 10:24 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 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 [log in to unmask] >>> 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]> Sent by: Discussion of research and writing about Virginia history <[log in to unmask]> 06/30/2008 10:15 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 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 [log in to unmask] >>> "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 [log in to unmask] Please visit the Library of Virginia's Web site at http://www.lva.virginia.gov ______________________________________ 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 ______________________________________ 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 ______________________________________ 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 ______________________________________ 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