[rgcounts]

I’ve yet to pour through this course, so if this is answered somewhere in one of the videos, please tell me. It’s my assumption that the Constitution should be interpreted in the way that the states did at their various ratifying conventions. My question is: what if different states interpreted different planks of the constitution different ways? Which is the correct interpretation?

I am not aware that this ever happened or that it was ever an issue, so please say if it was or not. Also, please point out if the semantics of my assumption were wrong.

[gutzmank]

No, the semantics of your assumption aren’t wrong. Yes, this was the way that people were told the Constitution would be read — for example, in the Virginia Ratification Convention, as I detail both in JAMES MADISON AND THE MAKING OF AMERICA and in VIRGINIA’S AMERICAN REVOLUTION. Yes, there were differing interpretations sold by Federalists in different states, viz., Massachusetts ratifiers were sold an antislavery take on the Constitution while South Carolina ratifiers were sold the opposite. In ordinary contract law, the absence of a “meeting of the minds” would render the contract invalid. No, no one has written on this subject, although I could certainly see myself doing so.

[derosa8]

But Kevin, isn’t ordinary contract law the basis for understanding the compact theory of the union?

[gutzmank]

Yes, as well as the law of treaties and probate law. It doesn’t seem to have come up in this context because no one has ever made the argument that there wasn’t a common understanding in the way I described above.

[derosa8]

Kevin, thanks for the reply. I wanted to respond, but I kept putting off rejoining libertyclassroom. Now, I am back on board.

Are you saying that the Nationalist has a knockdown argument against the compact theory of the union? I suppose the argument could run as follows:

(1) If there was no valid contract among the several states upon ratification, then the compact theory of the union is false.
(2) There was no valid contract among the several states upon ratification, because in the ratification campaign parts of the contract were interpreted in substantially different ways in different states.
(3) Therefore, the compact theory of the union is false.

Granted, this does not prove the “Big blob” Nationalist theory of the union, but it does seem to undermine arguments for nullification based on the compact theory. Perhaps you are not a compact theorist? Is there a a middle position I am not aware of?

I await your reply.

[gutzmank]

The absence of a “meeting of the minds” would make a contract or treaty invalid. In the Constitution’s case, that would mean it was invalid.

[derosa8]

So, what you seem to be saying that the Constitution was NEVER LEGITIMATELY RATIFIED? So, forget the compact theory of the union, because there is no legitimate union at all?

Should this impact how we think about nullification, secession, or those other issues? Also, do you think Brion McClanahan or Tom Woods would agree that there was never a legitimate ratification according to ordinary contract law?

[gutzmank]

My points are 1) that the compact theory is the only theory that was discussed during the ratification process; and 2) one could argue that there was no meeting of the minds, and so no valid ratification.

You seem to think that absent valid ratification, the Federal Government would be justified in exercising unlimited power. In reality, since the ratification created the Federal Government, if there was no valid ratification, there should be no Federal Government.

It’s an interesting issue.

[derosa8]

Kevin, thanks for the reply and clearing up the issue. For the record, I was just trying to step into the Nationalist’s shoes and make an argument against the compact theory.

You are right to make the point that an invalid compact does not imply a National government.

In fact, using what you have said above, a conservative could argue the if there is ANY legitimate union at all, then it is one that is one formed by a compact among the several states. But if there is not THAT TYPE of union, then the Feds don’t have any legitimate power since there is NO UNION AT ALL. Good stuff, thanks for the interaction.

[Brion McClanahan]

A compact theory does not exist. It is a compact fact. If you say theory, you are playing to the opposition.

[derosa8]

To say it is a “compact fact” assumes a valid contract and ratification, the very thing Kevin is saying may not have been the case under ordinary contract law. But I am with you that if there was ANY valid ratification, it was a compact among the several states.

[gutzmank]

Precisely.

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