[gutzmank]

The chief distortion in the federal system now is that there is essentially no check on the Federal Government’s tendency to arrogate the states’ reserved authority. This is not the fault of the Constitution’s authors and ratifiers, but of the people who adopted the 17th Amendment in 1913.

Besides that, it was thought that requiring officials to take an oath to uphold the Constitution would restrain them. In those days, oaths’ religious significance was taken far, far more seriously. For more on the religious scruples of the Founding Fathers, I highly recommend Mark David Hall’s recent biography of Roger Sherman, which I reviewed very positively for an upcoming issue of The American Conservative.

No, people did not foresee the advent of a two-party system. They responded to it with the 12th Amendment, but of course merely averting another Electoral College tie for president in the wake of the election of 1800 did not solve the entire issue: the impeachment power, for example, is essentially useless as a means of Congress policing the other branches’ adherence to the Constitution now that we have parties.

I have proposed an Article V Convention to amend the Constitution as a means of restoring the federal principle. One mechanism to serve the purpose of the old means of electing senators would be empowering a majority of state legislatures to counteract federal courts’ constitutional decisions–not in the case at hand, but as a matter of precedent. Another would be an imitation of the Council of Censors established by the Pennsylvania Constitution of 1776, this time again made up of state legislators.

The underlying problem, of course, is the extension of the suffrage, which drastically reduced the educational level of the electorate. I cannot imagine any way of counteracting that development.

[gutzmank]

The book is readily available, the authors are famous, and legal education focuses chiefly on case law. To my mind, this accounts for the outsized fame the book has come to have among legal professionals and journalists. Its repute among historians is far more limited.

[gutzmank]

More likely they’ll just do what’s being done in Cyprus: take the money.

[gutzmank]

You’re welcome.

I hope you are profiting from the new Constitutional History course.

[gutzmank]

Readers interested in this general topic might consider Ibn Warraq’s WHY I AM NOT A MUSLIM. Although shot through with secularist bias, the book is an apostate’s honest appraisal of Islam.

That subjugation is central to Islam is the subject of Bat Ye’or’s THE DECLINE OF EASTERN CHRISTIANITY UNDER ISLAM: FROM JIHAD TO DHIMMITUDE, SEVENTH-TWENTIETH CENTURY. The overwhelming majority of Americans seem not to know either that the Middle East was once almost entirely Christian or that the Arabs forced conversion of the Christian population over a long period of time. Can’t it happen here? This is the program that bin Laden had in mind in the documents set out above.

Also of interest is Anwar Hekmat’s WOMEN AND THE KORAN: THE STATUS OF WOMEN IN ISLAM. This book explores one of the most noxious features of Moslem civilization, showing how integral it is to Islam.

Finally, those who wish to see what awaits Western civilization under Islam (which, if demography is destiny, will come to dominate much of Europe in the next century) should peruse the beautiful, disturbing FROM THE HOLY MOUNTAIN: A JOURNEY AMONG THE CHRISTIANS OF THE MIDDLE EAST by William Dalrymple. Here the famous travel writer sets out from the spiritual center of Eastern Orthodoxy, Mt. Athos, through the entire Middle East. What he sees is heart-breaking.

[gutzmank]

I think the problem has been resolved with the substitution of new lectures on The Washington Administration and The Jefferson and Madison Administrations.

[gutzmank]

What’s the point of tormenting people with “the professor’s” completely uninformed jottings? In order to earn a law degree from most law schools, one must take 6 hours of constitutional law. Those two courses consist of limited reading of opinions of dead judges, most of whom were appointed because of political connections. “The professor” is typical of his ilk in having essentially no knowledge of the Constitution beyond what a few judges said, and in thinking that this makes him some kind of expert. You’d be better off just reading the Constitution than listening to this fellow.

[gutzmank]

Besides Prof. McClanahan’s logical assertion, one might also contend that states retain the right to secede because they retained all powers they had not either delegated to the Federal Government or been denied by the Constitution. Numerous Federalists said during the ratification campaign that this was to be the test for state power under the Constitution.

Alternatively, and I think more significantly, one could argue that states retained the right to secede because Federalists said they would during the ratification campaign. I call your attention specifically to George Nicholas’s explanation of the significance of ratification in the Virginia Ratification Convention, which I describe in detail in JAMES MADISON AND THE MAKING OF AMERICA, as well as in VIRGINIA’S AMERICAN REVOLUTION.

[gutzmank]

“Domestic insurrections” was code for “slave insurrections,” and that charge referred to Governor Lord Dunmore’s proclamation in Virginia calling on slaves of rebel masters to come join the British army. Most people don’t realize that the Declaration of Independence justifies the break with King George partly by reference to his offer of freedom to some of Virginia’s slaves.

For the charge concerning Indians, Pauline Maier in AMERICAN SCRIPTURE calls attention to the use of Indians against patriots in Canada. Maier attempts to explain what each of the charges meant — and finds that some of the charges cannot be explained.

[gutzmank]

Two ideas: 1) Raoul Berger’s GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENTS; and 2) Woods and Gutzman, WHO KILLED THE CONSTITUTION? The former is the best book on the meaning of the 14th Amendment, while the latter has a chapter on Brown v. Board of Education.

[gutzmank]

Not likely. Capitalization was rather irregular in the 18th century.

[gutzmank]

I highly recommend that you consult Raoul Berger’s GOVERNMENT BY JUDICIARY for elucidation of this subject. He devotes extensive attention to it. If you want more than that, see Labbe’ and Lurie’s book on Slaughter-House, which I reviewed here:

http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/Labbe-Lurie104.htm.

[gutzmank]

Here we see the validity of the Supreme Court majority’s concerns in Slaughter-House about the vagueness of the 14th Amendment. All legislation classifies, and thus treats people differently. If we understand the Equal Protection Clause as divorced from the concerns that yielded it, we elevate the Supreme Court to the position of Grand Censor of American Legislation. Since 1954, that has been the direction in which federal courts have headed.

As I understand it, the argument is tantamount to saying that allowing women to marry men while disallowing men to do so is iniquitously to deny those men equal protection. The problem is that we have no way of saying where this principle should cease to be applied, and so all we can do is gaze on in wonder as The Nine work their will.

It must be facetious to ask what this means regarding federalism. Truly.

[gutzmank]

In general, Wikipedia cannot be trusted, on this or any other subject.

For Jeffersonian views regarding foreign policy, I recommend McCoy’s THE ELUSIVE REPUBLIC, Kaplan’s THOMAS JEFFERSON: WESTWARD THE COURSE OF EMPIRE, Tucker and Hendrickson’s EMPIRE OF LIBERTY, and my own JAMES MADISON AND THE MAKING OF AMERICA.

[gutzmank]

You’re welcome.

[Author]

Posts