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 ______________________________________ 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