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Professor Woods addresses this question in his book, 33 Questions You Aren’t Supposed to Ask about American History. Essentially, from what I remember, Congress did pass a resolution acknowledging the contribution the Iroquois Confederacy had on the US Constitution, but Dr. Woods says that the Iroquois nation had zero influence on anything that went into the Constitution. I believe all that is mentioned during that period is a letter written by Benjamin Franklin stating that if the Native Americans could form a Confederacy for their defense, then the Colonies could. This, however, was during the American War for Independence not during the formation and ratification of the Constitution.
Hope that helps,
Interesting questions and points, and I’ll address them as listed in your post:
1.) Prop 8 is constitutional because the States’ retain all power not prohibited to them by the 10th amendment. As for it’s being unconstitutional because the privileges and immunities clause protects life, liberty, and property is a bit off. From my understanding of the profoessors’ teachings, life meant not being killed, liberty meant not being enslaved or imprisoned, and property was, well, all forms of property. Considering marriage doesn’t fall into one of those three definitions, I think it is safe to say Prop 8 is very much constitutional and perfectly fine for a state to pass.
2.) While, yes, the Civil Rights Bill of 1866 did allow for people (former slaves) to enter into contracts, it did not limit the States from legislating on what were valid contracts. That isn’t explained very well, but let me give an example. Prostitution. In certain States prostitution is illegal, but one can argue that a woman or man can legally enter into a contract with another to be a prostitute. So, if a State can pass legislation on prostitution as being an illegal contract, then they are also able to pass one on marriage. However, I don’t personally think of marriage as a contract in the sense of a contract between peoples for exchanges of land, between employers and employees, etc.
3.) See number 2.
4.) Therefore I think Prop 8 is constitutional.
As for DOMA being constitutional, I think under the Constitution as ratified, all powers not given to the general government were retained by the States, so Congress has no authority to legislate in the area of marriage. I dont know all the details about DOMA, but I find it to be unconstitutional.
I read your post, and I find your thoughts on a Constitutional Convention interesting. I agree with Dr. Gutzman that the General government today does not function or look like the government of 1789. The out of control legislature passing laws not enumerated in the Constitution, presidential war powers and others, and don’t even get me started on the SCOTUS.
I have pondered this same question about a second convention, and while I don’t think the Constitution as ratified was any hinderance to liberty, I think the bigger question is: “Is a Constitution actually the best means of creating and limiting a government?” I don’t hold the the Constitution to be this holy document that shouldn’t be touched or altered, but I have to think about how the Union throughout American history has slowly moved more toward centralization. I bet even Hamilton would be scared of what our government looks like now. So, once again, is a Constitution really the best solution to rein in government and enhance peoples’ liberties? I find this question to be very interesting. I do agree that a second convention isn’t a bad thing at all, and I would love to be involved in a second Constitutional Convention, but I would also like to discuss perhaps an alternative to restricting government that is more effective that a Constitution.
I do not have an answer To this other than somehow educating the common citizen about liberty and history, but it seems so inadequate especially if the government gets its paws on the educational system like it already does in the States. This is something to ponder. Just my thoughts.
“Due process” from my understanding typically meant going through a trail process. So, for example, someone commits a crime, they go to court, the jury convicts them, and then the go to jail/prison. Now, I could be a bit off, but after watching most of the lectures and reading the professors’ books, that’s what “due process” entailed.
To further that point, if “due process” meant what your second paragraph asks: “Wouldnt the law passed by Congress (presumably elected by the people of the states which outlawed slavery (in the territories) be considered due process of law?” The problem that arises with that is with Congress potentially passing an unconstitutional law. The proponents of the Consitution continually reassured the States that laws that are unconstitutional are not law at all. So, just because Congress passes a law doesn’t mean “due process.”
While I don’t know enough about the arguments being made about slavery in the territories regarding the 5th amendment to answer your question with confidence, I do know that one of the key arguments was that outlawing slavery was unconstitutional because it prevents slave owners from moving into these new territories that were, as you mentioned above, common property of the United States. Take, for example, the end of the Mexican American War. A political battle erupted after that regarding slavery in the newly acquired territory with the argument by Southern States being along the lines of this, “We fought and died and bled for that land as much as the Northerners, so why are we not allowed equal access to the land?” While I’m paraphrasing, I happen to agree with this argument and believe the Southerners had a very strong case constitutionally against outlawing slavery in newly acquired territory.
I’m sure the professor will clear anything up and/or correct anything I might be a bit off on.
Hope this helps,
I believe you almost answer your own question. After watching the lecture by professor McClanahan, the Northern States attacked the institution of slavery because it did give Sounthern States some more power and representation in the general government which, in turn, helped Southern States block many attempts by Northerners to pass more mercantilist economic policies. Anti-internal improvment/national bank/protectionist (tariffs) ideals wasn’t what gave Southerners more representation power it was slavery; so why attack the former three when it was the latter?
I hope that helps and makes sense.
Side note: Why the Southerners didn’t simply free the slaves and help them get on their freedom feet (yes, I just made that up and yes, it is very cheesy) so their representation would be legitimate and possibly on their side politically I’ll never know. But, then again, I’ll never understand the slavery mindset anyway.
While I do not know if a Consitutional amendment for internal improvments was attempted, I will say I would assume an amendment was never attempted because many States wouldn’t have wanted an internal improvments amendment.
The reason being is because internal improvements, say a railroad in New York or a road in Louisiana would specifically benefit that particular State where the said improvement was made at the monetary expense (think tax money from the *national* treasury) of the other States. This is one of the prime reasons why internal improvments is shot down in the Philadelphia Convention. Beyond that, that’s all I know and can say for sure. The professors will have to help you from here if my answer is unsatisfactory. Pick up professor McClanahan’s book The Foinding Fathers Guide to the Constitution as it has some pages on the debates over internal improvments in both the PC and the ratifying conventions. I believe Dr. Gutzman’s PIG to the Constitution also discuss the topic as well.
I would keep on read Berger’s book as it will lay out the point that the 14th Amendment did not intend the Federal Bill of Rights to be enforced on the States (a.k.a. Incorporation)
The Ninth Amendment, in plain terms, states that the government cannot infringe on rights just because they aren’t specifically expressed in the Constitution. For example, Congress could not pass a law making it a crime to wear shoes. You could make an arguement claiming that you had that right under the Ninth Amendment (I use this example understanding fully that Congress does not have the power in general to write a law like this)
So, to answer you question more specifically, the States do not have to abide by the Ninth Amendment. States can pass legislation they see fit to govern their State, so long as it doesn’t violate anything in that particular State’s constitution. As for the ratification debates on the topic of the Ninth Amendment, I’m sure the professors can point you in the right directions on the specific documents or conversations that I don’t have easily accessible. I hope this helps.
I would say that the SCOTUS’s power gradually increased since its creation after the ratification of the Constituion. The were certain cases in which John Marshall overturned a state law, believe it was Chisolm vs. Georgia, so these types of cases were not strictly limited to the Warren Court, but I would say that the Warren Court played a large role in the increasing the power of the SCOTUS. To be truthful, it was not necessarily an increase in power but more so the Court failing to make decisions with any constitutional basis. Brown vs. Board is a good example. Dr. Gutzman has a lesson in the Constitutional History course devoted most of it time to the Warren Court, and he will be able to answer this question much better than I. If you are interested, I wrote some articles while I was working at the Nixon Presidential Library on the Supreme Court, and I mention some of the big Warren Cases. If I can find the link I will post it for you.
I am by no means a professor or “constitutional scholar”, but I feel, after having read most of the professors books, that the Bill of Rights was never intended to be applied to the States. In fact, there were those during the ratification who believed a Bill of Rights was unnecessary on two accounts. First, the enumerated list of powers in Article 1, Section 8 does not grant Congress the power to regulate or legislate on the things to be protected by the Bill of Rights i.e. Speech or Gun ownership. Second, most of the States had a Bill of Rights in their own State constitutions, so, therefore, a Bill of Rights in the Federal constitution was unnecessary.
As for the Bill of Rights being “incorporated”, usually argued because of the “due process” clause of the 14th Amendment, in my opinion, is complete bunk. I read Raoul Berger’s Goverment by Judiciary, a recommendation by the professors, and found nowhere that the Framers of that Amendment made it to incorporate anything other than the “due process” clause of the Fifth Amendment and the “priviledges and immunities” clause of Article 4, Section 2.
Hope this answer helps, and, of course, as always, the professors will correct me if I am mistaken.
Your assumption was correct, and thank you for the response! If only I could have taken classes at the universities you all teach at.
I would think that under the tenth amendment the states could all band together to vote out a certain state… either through an amendment or via convention. But, after hearing some of the lectures and reading most of the professors books, I would say that the central government would have no authority to do so. I could be wrong however, and I’m sure the professors will correct me if I am.
Thanks for the reply! This site is awesome.