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You can infer the ground of opposition without doing substantial research into the matter. Just read the amendment. It says that southern states’ war debts must never be paid, a huge number of southerners must be permanently disfranchised, Congress will have a new supervisory power over state laws, etc. You don’t need to read Donald, Foner, Perman, et al., to figure it out.

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The date 1775 for Somersett’s Case is incorrect: it was 1772.

An argument that protecting slavery was one motivation for the Revolution in Virginia receives substantial support from Woody Holton’s FORCED FOUNDERS. Tying it so closely to Somersett seems dubious to me. In fact, the entire enterprise does, in light of the long-standing dispute between Virginia and the mother country by 1775 (or 1772).

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Eric L. McKitrick argues in ANDREW JOHNSON AND RECONSTRUCTION that the impeachment of Andrew Johnson was an attempt to subordinate the presidency to the Congress.

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The point about Article II of the Articles of Confederation is regurgitated by virtually every law professor who addresses the question of the Constitution’s nature — national or federal — because legal education is case-law education, and John Marshall’s opinion in MCCULLOCH V. MARYLAND (1819) is a “classic case.” In that opinion, Marshall made that claim: that the word “expressly” was omitted from the 10th Amendment, and so the 10th Amendment doesn’t actually have any meaning.

Marshall knew perfectly well that the Federalists had said exactly the opposite of this in the ratification debates, particularly in Virginia, where Marshall was a prominent participant. Over and over, leading Federalist orators told the Richmond Ratification Convention that the unamended Constitution meant that Congress would only have the powers *expressly* delegated. Two of the three chief spokesmen for ratification, Governor Edmund Randolph (one of the five most prominent Philadelphia Convention Framers) and George Nicholas, said so repeatedly.

If the unamended Constitution gave Congress only the powers expressly delegated, omission of the word “expressly” from the 10th Amendment could not change that fact.

I have written about this subject in several places, including JAMES MADISON AND THE MAKING OF AMERICA, VIRGINIA’S AMERICAN REVOLUTION, A COMPANION TO JAMES MADISON AND JAMES MONROE, and “Edmund Randolph and Virginia Constitutionalism,” THE REVIEW OF POLITICS (2000).

Beyond that, I also provide detailed accounts of the reasons for scrapping the Articles and adopting the Constitution in both JAMES MADISON AND THE MAKING OF AMERICA (available in paperback day after tomorrow) and THE POLITICALLY INCORRECT GUIDE TO THE CONSTITUTION. The short of it is that nationalists wanted a central government capable of funding its essential functions, but so did virtually everyone else in the American political elite; Patrick Henry, for example, long favored amending the Articles to give Congress a taxing power, though of course he did not want to see an entirely new central government created.

Federalist propaganda about the failure of the Articles of Confederation was consistent. Whether it was candid, who knows?

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Originally, both houses of Congress allowed unlimited debate. The House eliminated this privilege early in the 19th century, but the Senate kept it until early in the 20th.

When the Senate got rid of unlimited debate, it did so by a rule allowing 2/3 of senators to impose a time limit. This rule remained in place until the current 60% rule was adopted in the wake of the 1960s Civil Rights Acts.

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A long list of Founding Fathers said that the Constitution was to be read according to the original understanding — the reading that the people gave it when they agreed to live under it. They said this in different ways, my favorite being James Madison’s statement that the meaning of the Constitution was to be found in the ratification conventions.

If we are to have a government by the consent of the governed, the government must be the one to which the people consented. If it is impossible to have such a government, the solution is not to say, “So the judges can do whatever they want,” but to say, “So the British were right: the legislature is sovereign.” Most people who say that constitutional meaning cannot be identified intend by saying that to pave the way for free-wheeling policy-making by judges, which seems to me to be a grand non sequitur — besides a sort of coup de regime.

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What these discussions tend to elide is the effect of immigration on culture.

Thomas Jefferson wrote that immigration from Spain and Portugal must be carefully limited. Spaniards and Portuguese, he said, came from societies in which both government and religion were top-down, and so they were not prepared for republicanism. While a limited number of such people could be assimilated, he concluded, if too many were allowed to immigrate, it was America that would be changed, not the immigrants.

I think that as usual, Jefferson was on to something. Exhibit A: today’s California.

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The 2nd Amendment’s purpose is to leave the power to defend itself — as a group and as individuals — in the citizenry of each state. The overriding motivation here was to ensure that the states could resist any federal encroachment. Also mentioned in the ratification debates in some of the states was the possibility of “servile insurrection”/”domestic insurrection,” i.e., slave rebellion. This should not be surprising, since the Declaration of Independence justifies separation from the British Empire partly on the ground that George III had been exciting domestic insurrections.

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That is definitely a book to avoid.

The Supreme Court follows neither original understanding (that is, the people’s will) nor current preferences. Across a range of issues, what they do is instantiate the will of the Harvard Law/Yale Law mandarinate upon us via “constitutional law” rulings.

Take forced busing. The public never supported it, yet it was imposed upon the people of many areas of the country for three decades. Consider the ruling that the Due Process Clause of the Fourteenth Amendment established a right to burn a flag enforceable by federal courts against state governments. There never was a time when anything near a majority favored such a fatuous declaration, yet it can’t be undone. Think about the 1962 decision that the Due Process Clause of the Fourteenth Amendment banned states from requiring that students in public schools say an anodyne prayer each morning. 49 governors protested, and 70% of Americans still oppose it, yet it cannot be repealed. Think of the Supreme Court’s declaration a couple of years ago that the Due Process Clause of the Fourteenth Amendment means that you have a right to rape a child in America without receiving the death penalty. Like the others, this absurdity is unfounded in either original understanding or current public opinion.

I could go on and on and on. The bottom line is that where formerly they simply called for federal courts to write their opinions into law, liberals in the legal establishments today justify this idea with the assertion that whatever they do, federal judges are pretty close to average Americans’ opinions. It couldn’t be further from the truth. For the whole sordid story, please consider my THE POLITICALLY INCORRECT GUIDE TO THE CONSTITUTION.

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Their point was that since an enumeration could not possibly be complete, the implication would be that Congress was free to violate some of what had always been understood to be our rights.

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Most people now don’t see Ford’s pardon of Nixon as corrupt. The Iran-Contra pardons were by Bush, Sr., not by Reagan.

The short of the reason is that it was an old executive function in England, it seemed that someone ought to have it, and it is an executive power.

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For secession in 1860-61, I recommend four books: Freehling & Simpson’s SECESSION DEBATED: GEORGIA’S SHOWDOWN IN 1860, a short collection of primary documents which makes clear why Georgia seceded; the same editors’ SHOWDOWN IN VIRGINIA: THE 1861 CONVENTION AND THE FATE OF THE UNION, which shows why Virginia — after at first voting before Lincoln’s inauguration not to secede — finally voted to secede after seeing his presidency’s early weeks; Dew’s APOSTLES OF DISUNION: SOUTHERN SECESSION COMMISSIONERS AND THE CAUSES OF THE CIVIL WAR, which briefly gives you the general answer for the Deep South; and Crofts’ RELUCTANT CONFEDERATES, which explains why the Middle South seceded.

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During the ratification debate, George Mason called himself a Republican and decried the nationalists for calling themselves “Federalists.” Elbridge Gerry later said that there really had been two parties during the ratification debate “rats and anti-rats.”

The first party under the US Constitution was the Republican Party — if we want to call it a party. At least, political scientists by the early 1990s had identified a couple of dozen members of the House who consistently voted with James Madison across a wide range of issues. This group congealed into a party. Seeing how they were organizing themselves, Alexander Hamilton organized his Federalist Party in support of the Washington Administration.

Historians of the 1790s most commonly call the Madison-Jefferson party the Republican Party, even though it might more accurately be called a proto-party. More confusing for students is that the party Hamilton organized took the same name as proponents of ratification had used only a few years before.

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Pardon my syntax.

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Locke’s Fundamental Constitutions is usually seen by historians as having been written on spec, not as a candid expression of his views concerning the type of society that would be ideal. We must recall that like James Madison, Locke often wrote not as closeted philosopher, but as Anthony Ashley Cooper’s hired gun. Since Cooper was among the Carolina proprietors, Locke’s draft constitution for that colony envisioned great power for the proprietors; since Cooper was among the Whigs who ejected James II from the throne, Locke’s Second Treatise justified removing tyrannical princes.

I think that Rothbard is right in his assessment that Locke was more libertarian at heart. Yet, “who pays the piper calls the tune.”

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