In arguing constitutional law issues, we look to historical circumstances in order to try to understand the meaning of the text of the Constitution. The problem is that you and I can both look at the same historical circumstances and read different meanings into them. Whose version is correct? Yours, mine, or someone elses?
Ultimately it's up to us to decide what the Constitution means, at least where the text isn't perfectly unambiguous. That the president must be at least 35 years of age is unambiguous.
The meaning of liberty, what process is due, equality, and "necessary and proper" are inherently, and intentionally, I would say, ambiguous, to permit adaptation to unforeseen circumstances down the road.
We doubt that the Framers envisioned the Internet, but they were well aware that privacy would always be a concern in the more or less civilized society as to which they were trying to lay the foundation.
Thus the following from an exchange among law professors:
Calvin H. Johnson, a distinguished professor of law at the University of Texas, and the writer of an acclaimed legal history of the Founding, wrote:
"... I know the history, I just do not know which way to look at it."
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My reaction:
If this isn't the best statement of the Originalist problem then I don't know what is.
In reference to the full comment by Prof. Johnson, reproduced with kind permission:
The Federal power to lay direct (meaning internal or dry land taxes, non-tariffs) was the single biggest controversy of the Ratification debates.
The Anti-Federalists proposed amendments denying Congress the power over direct taxes and won in a majority of the states.
James Monroe said that we could make this Constitution safe by one amendment: taking the power over direct tax away from the Federal Government.
George Washington wrote to Jefferson in March 1788 saying that he had no objection to any of the Anti-Federalist amendments, except as to the one constraining direct taxes, which he took to be the most important to the opposition.
Virginia Federalists let all the Anti-Federalist amendments go forward, but they challenged the recommendation for restraints on direct tax, but lost on their challenge.
The Federalists in the debate kept minimizing the need for direct tax: only in war would it be needed probably. But Hamilton wants it: the Federal government will have 80% of the responsibilities and should not be constrained to 5% of the revenue. If Hamilton had not assumed the state taxes, once he became Secretary of the Treasury, then the 5% impost would have covered the desperate need that motivated the Constitution: to pay off the debts of the Revolutionary War.
The impetus for the Constitution was New York's veto of the 1783 proposal for a 5% tariff, so the immediate focus was definitely on tariffs alone. Tariffs were the only clear non-direct tax in the terminology of the time. Excises are sometimes called direct taxes and sometimes not.
Where does that leave us?
Depends upon how you think about it.
Direct taxes were either a moot issue, not really all that much importance to the South even though slaves had to be included in it, or the core of the Constitution, including the North-South deal.
I know the history, I just do not know which way to look at it. [Emphasis added.]
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Prof. Johnson had made a reference [reproduced below] to some wholesale constitutional changes ("rewriting history") made by Jefferson during his two terms of office which mystified me. In response to my query, the following:
Bob Sheridan asks for some back up on Jefferson's amending the C.
1. The Articles of Confederation had provided that Congress had only the powers expressly delegated to it.
The Framers found that limitation, to quote Gov. Randolph, to be destructive to the Union.
The Constitution copies the A/Cs [the Articles of Confederation] on Congressional power, but the Framers took out the "expressly delegated" limit.
Even the passport had been challenged, Randolph said, and the Framers wanted the federal passport although it [was] not enumerated nor related to any of the 17 instruments in clause 18.
The passport is related perfectly well to the general power to provide for the common defense and general welfare, and is legitimate but it is not expressly provided.
The Framers and [the] first Congress beat back a number [of] attempt[s] to add an "expressly" requirement so that the enumeration would be exhaustive.
All of them failed, quite overwhelmingly on the votes. Nonetheless, In United States v. Hudson and Goodwin,11 U.S. 32 (1812) the Supreme Court speaking through [a] Jeffersonian majority said that the "powers of the general Government are made up of concessions from the several states - what is not expressly given to the former, the latter expressly reserve.
"72 Hudson and Goodwin's statement of enumerated powers is hard partisan Jeffersonian ideology. As Jefferson had written the year earlier, "[t]he tenet that Congress has only the power to provide for enumerated powers, and not for the general welfare, is almost the only landmark which now divides the federalists from the republicans.
"73 With the political victory of the Jeffersonians and the demise of the Federalist party, Hudson and Goodwin's statement became established constitutional doctrine. But it is not very good history, given the removal of "expressly delegated"
2. From before the Constitution through to his inauguration, Jefferson consistently wanted the federal government to stay out of domestic affairs and to confine its power to foreign affairs.
Letter from Jefferson to Madison (Dec. 16, 1786), in 9 JM 210, 211 (saying that the proper division between the general and state governments is that national government would have power over foreign concerns and the states would have power over the domestic ones);
Letter from Jefferson to Gideon Granger (Aug. 13, 1800) in WRITINGS OF TJ 1079 (saying that the true theory is that states are independent as to everything within themselves and general government is reduced to foreign concerns only).
Jefferson was on some issues even more anti-national than the Articles of Confederation had been. In 1798, during the false war with France and as military expenses were mounting, he proposed an Amendment to the Constitution whereby the national government would be prohibited from borrowing, even for war, and would have to rely on the states to "bid their credit in borrowing quotas." The Articles had technically allowed the Congress to borrow on its own credit, although it could raise funds for repayment only requisitions upon the states.
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of LawWebsite: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
For reviews, chapters, discounts and news on Johnson, Righteous Anger at the Wicked States: The Meaning of the Founders Constitution (Cambridge University Press 2005) see
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/-----Original Message-----
From: Bob Sheridan
Sent: Wednesday, January 11, 2006 11:11 AM
To: Calvin JohnsonSubject: Re: Originalism And Nationalism.
Calvin Johnson wrote:
"...That is, until Jefferson won in 1800 when he rewrote the history so that States were supreme again, and the federal government were narrowly constrained."
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I wonder whether Prof. Johnson would kindly provide an example of what he has in mind of Jefferson's rewriting of the history so that States were supreme again. I'm trying to think of an example, but, unfortunately, am coming up blank...
rs
sflsOn the big issues, the conclusion is easier: The Constitution was a nationalist vector written by radical nationalists to end state sovereignty and eviscerate the states. The Constituiton was opposed bitterly to the end by a group called Anti-Federalists who wanted to retain the power of the states. By the ratification of the Constitution the states' rights people lost.
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Here's a link to Prof. Johnson's book Righteous Anger at the Wicked States: The Meaning of The Founders' Constitution (Cambridge U. Press) along with a brief note from the publisher:
Righteous Anger of the Wicked States is a history of why the U.S. Constitution was adopted. The most pressing need was to allow the federal government to tax to pay off the debts of the common defense. The Constitution went far beyond the immediate fiscal needs, however, to create a supreme, three-part national government The book argues that the Founders' anger at the states for their recurring breaches of duty to the united cause explains both critical steps and the driving impetus for the revolution.
"A fine achievement, and a sophisticated book," says Jefferson Powell of Duke Law School.
For reviews of the book, see below:
- H. Jefferson Powell, Professor of Law, Duke University, School of Law:
"It may seem hard to imagine that anything new could be said about the relative weights of federalism and nationalism in the formation of the Constitution. Calvin Johnson has defeated that expectation by writing an intellectually honest, incredibly erudite description of the Constitution as an intensely nationalist instrument, crafted almost from first to last for the express and understood purpose of a supreme and extremely powerful central government. Especially important is Johnson's identification of Madison as in truth the architect of this nationalist Constitution and Madison's subsequent endorsement of states rights as a turn away from constitutional original meaning. Johnson has put the historical ball back in the anti-nationalist court … A fine achievement and a sophisticated book"
- Walter Dean Burnham, Frank C. Erwin, Jr. Centennial Chair, Department
of Government, University of Texas:
"Calvin Johnson provides a most persuasive analysis of why the Founders sought to create a national government with ample power to govern the country. Using state-of-art data retrieval technology to gain a finely textured view of the Founders grappling with the exigencies of creating a viable government, the author makes particularly clear just how strong the nationalist focus of the Federalists was, and how little the particular views of of the Anti-federalists rose to the occasion. This book is highly recommended to all concerned with what the past has to say to the present and future of our constitutional order."
- Joyce Appleby, Professor Emerita, UCLA Department of History:
"Calvin Johnson has carefully retraced the story of the writing, ratification and implementation of the U.S. Constitution to put forth a fresh and arresting explanation for the drive to replace the Articles of Confederation."
- Gary S. Lawson, Professor of Law, Boston University:
"Righteous Anger at the Wicked States powerfully illuminates the under-appreciated fiscal and nationalist origins of the Constitution. Everyone who is interested in the Founding Era can learn something valuable from it."
- Mark A. Graber, University of Maryland:
"Righteous Anger at the Wicked States restores the Federalist perspective on the drafting and ratification of the Constitution. Like Hamilton and the Madison of 1787, Professor Johnson recognizes that leading framers were committed to a strong state and tolerated federalism only to the degree that states would not interfere with vital national purposes. This is an important corrective to a literature on the founding that has recently too often viewed events from a decidedly anti-Federalist frame."