[gutzmank]

Congress doesn’t have a general power to make law. Rather, it has the enumerated powers in the Constitution. In order to exercise most of those powers, it must make law. There would be no way to exercise most of them without making law. Article I, Section 1 doesn’t say Congress “shall have the power to make law”; rather, it says Congress will have the legislative powers granted by the Constitution.

[gutzmank]

Tom, if the CSA had survived, slavery would not have come under the widespread opprobrium that it did. Rather, one of the most powerful, influential, and prosperous countries in the world would have been a slave society (not merely, as in Berlin’s typology, a society with slaves).

It is very common for libertarians to point to the economic nonsense underlying various historic social and governmental systems, and then to conclude that those systems must have ended ere now. What such analyses overlook is that the same reasoning leads to the conclusion that all government would have ceased to exist ere now as well. Slavery was a powerful, entrenched, popular, profitable institution in the CSA in 1861, and there’s little reason to assume that it would have been abolished by now.

[gutzmank]

First, sovereignty isn’t in any level of government in the American system, but in the peoples of the separate states.

Second, the best books on the Articles are Jensen’s THE ARTICLES OF CONFEDERATION… and Dougherty’s COLLECTIVE ACTION UNDER THE ARTICLES OF CONFEDERATION (an overlooked blockbuster). For the question whether the Articles were really a flop, as the Federalists claimed, I recommend THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, VOL. VIII-X: VIRGINIA. There, you’ll see Patrick Henry, William Grayson, James Monroe, and George Mason argue that no, they hadn’t been at length and in detail.

I deal with this question in one chapter 3 of VIRGINIA’S AMERICAN REVOLUTION (Lexington Books, 2007).

[gutzmank]

Right.

[gutzmank]

Slavery was a very healthy institution, both economically and politically, in 1860. It is very unlikely that it would have ended anytime soon, if even by now, in case the Union had not decided first to make war on the CSA to prevent secession, and second to free the slaves. This to my mind is a separate issue from the constitutionality of secession.

[gutzmank]

The leading living American legal historian wrote a book on the process by which juries were deprived of their common-law right to pass on the law as well as the facts. Here’s my review of that outstanding work, which I recommend for laymen and experts alike:

http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/reid604.htm

[gutzmank]

For the divergence between American and British constitutional perspectives leading up to the Revolution, see the classic _Peripheries and Center_ by Jack Greene. Greene is the greatest colonial historian of the 20th century (and he’s still at it).

[gutzmank]

Overwhelming Parliamentary majorities favored putting down the “rebellion” in North America. Perhaps they didn’t want war, but they voted against surrender — which, from their constitutional perspective, was the only alternative to war.

[gutzmank]

Yes, BBinder, by 24-7, and the Federalists howled in Congress over the dilution of their power in Congress likely to result. They imagined a huge South covering the whole Louisiana Territory.

CSA1861, I’ve never thought about that. In any event, it isn’t done that way — perhaps because most of it couldn’t survive such a Senate process.

[gutzmank]

You’re welcome.

[gutzmank]

Paul, the letter you mention was sent to James Madison. Jefferson had been pondering the question whether we should inherit any government obligations, whether in the form of constitutions, statutes, public debt, or private debt. Having tentatively concluded that we shouldn’t, he wrote to Madison with this idea.

In response, Madison made several observations: 1) Obligations incurred by government in one generation may well yield benefits to the next. So, for example, if the government sells bonds to finance construction of a bridge, the succeeding generation may find itself facing the previous generation’s obligation, but it will also recoup most of the benefits associated with that obligation. To insist that every obligation have a 19-year sunset would make such government programs impossible. 2) Jefferson’s 19-year term was arrived at by him at the conclusion of calculations concerning the length of a generation. Madison pointed out that generations don’t work that way: there’s never a day when one 19-year generation ends and the next begin; children are born every day, and people die every day. Thus, there’s no way to say when the 19-year term ought to start or stop. 3) Writing a constitution is not a trivial matter. Where good constitutions already exist, to throw the constitutional system into turmoil every 19 years would be foolhardy.

Madison had more to say about the idea than this. The short of it, however, is that Jefferson did not mention the idea to him again. Jefferson was prone to coming up with such notions, which he usually ran past Madison. Madison typically explained to Jefferson why they were impractical.

Part of the reason that Jefferson disliked the idea of debt passing down from one generation to the next is that the land he had received from his father-in-law was encumbered with substantial debt; he wanted to concoct a way to keep the land without paying the debt. For a full treatment of this topic, see Herbert Sloan’s fine book _Principle and Interest_. (Note that the title is a pun.)

For Jefferson-Madison exchanges, including the one that interested you, see Lance Banning’s _Jefferson & Madison: Three Conversations from the Founding_.

[gutzmank]

In general, American exports in 1812-15 were southern products on northern vessels. Therefore, southerners did have skin in the game.

Madison’s war aims were an end to impressment and a favorable trade treaty with the British. The latter obviously would benefit southerners.

Don’t overlook the strong anti-British sentiment then current in the South. Napoleon had few friends there, but anti-British feeling associated with the American and French Revolutions had not died out.

[gutzmank]

In general, the other Republican leaders believed that since treaties to buy and sell land were then common, and since Article II didn’t specify some specific type of treaty that the president could make with the advice and consent of the Senate, the president could constitutionally make treaties to buy and sell territory. So far as I know, Jefferson was the only significant Republican who wasn’t persuaded by this argument.

By the way, John Taylor apparently apparently didn’t write A Defense of the Measures of the Administration of Thomas Jefferson. For more on that, see the Appendix to Shalhope’s Taylor biography.

[gutzmank]

Forrest McDonald has famously argued that the Federalists were right about that. By his reading, the Bill of Rights has been a mechanism for further self-aggrandizement by the Federal Government.

My own feeling is that anyone who could turn a ban on the Federal Government’s having anything to do with church-state relations into a federal veto of state laws having to do with church-state relations would have found some other way to do that in the absence of the Bill of Rights.

[gutzmank]

Jefferson’s Embargo was an attempt to head off calls for war that came in from all over the country in the wake of the Chesapeake-Leopard incident. Jefferson certainly didn’t inflate the abuses: he would rather have done nothing.

There was essentially no southern shipping. Yes, New England state flouted the Embargo (and later the War of 1812). Individual New Englanders did indeed decide that it was better for them to trade with the enemy in Canada illegally than to comply with the law, and state governors and legislatures in several states helped them with this. I provide the story in JAMES MADISON AND THE MAKING OF AMERICA, and for a more detailed version I recommend Henry Adams’s history of the US during the Madison administration.

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