[gutzmank]

As I explain in the context of the Virginia Ratification Convention, this was not the understanding on which the states ratified the Constitution. Federalists told the convention that secession would remain an option. George Nicholas laid this out in detail.

[gutzmank]

My favorite book on Puritan-Indian relations is Vaughan’s New England Frontier. It will surprise you. As in regard to many such events, it’s not perfectly clear whom to blame for King Phillip’s War.

Avoid Lepore’s In the Name of War.

[gutzmank]

I don’t know of any substantial evidence of that. There’s certainly no record of it in the four volumes of Farrand’s Records of the Federal Convention, nor have I come across it in the ratification materials–and I know the Virginia documents quite well.

[gutzmank]

Jefferson first said he couldn’t decide whether the Constitution was more good or bad, but ultimately he decided he supported ratification, followed by amendment. In that sense, he was a Federalist.

Madison generally was more careful and less adventurous. He had essentially one interest, which was government–particularly constitutionalism. Jefferson, on the other hand, was a highly variegated genius, and prone to fire off an opinion seemingly without thinking to a conclusion. In that sense, Jefferson seems more “French,” Madison more “English.”

[gutzmank]

Annette Gordon-Reed has concluded that the two of them had some kind of emotional tie. You could check her book on the Hemings family for that issue. I’m convinced they had a sexual relationship, but I don’t think we can actually know what kind of relationship it was.

[gutzmank]

The leading expert on colonial New England is Perry Miller. A good introductory tome is Errand into the Wilderness. If that’s more than you want to bite off at once, you could try Edmund Morgan’s biography of John Winthrop. In regard to New England religion, try David Hall’s Worlds of Wonder, Days of Judgment. Colonial New England environmental history is fascinatingly discussed in William Cronon’s Changes in the Land. The subject of Godbeer’s Sexual Revolution in Early America is obvious. In general, I don’t know a good book on the Salem Witchcraft Scare, which anyhow wasn’t very important.

I’m afraid I haven’t read Taylor’s book.

[gutzmank]

If by “unconstitutional acts of Congress” you mean “statutes,” a president cannot do this. A president can veto a bill, but if Congress passes it over his veto, he can go to court about it or refuse to defend it when some state or citizen goes to court about it; rarely — only in extreme cases — is he justified in ignoring it on the ground that it’s unconstitutional.

[gutzmank]

I find this interesting, but it’s a matter of first impression for me. I’m sorry that I can’t help beyond recommending that you look at records of congressional debates.

[gutzmank]

Any court in considering how to apply a given statute must of course consider constitutional objections to it, whether they are raised by a party or the court comes to have questions unaided. As Presidents Jefferson, Jackson, and Lincoln all expressly noted–Jefferson in connection with the Sedition Acts (which federal courts had happily and energetically enforced, before Jefferson pardoned all of the convicts and refunded them their money), Jackson in his Bank Bill Veto Message (in which he contradicted McCulloch v. Maryland), and Lincoln in connection with Dred Scott, presidents must of course decide for themselves what the Constitution means, and they will from time to time treat it as having a different meaning from what a federal court, even the Supreme Court, has said. States too.

The Supreme Court’s precedents are to be followed by other federal courts, which the Constitution calls “inferior [to the Supreme Court] courts.” Sometimes they undertake to correct the Supreme Court, which the Court typically doesn’t receive well. States too. All of these officials are sworn to uphold the US Constitution, not to uphold opinions of the US Supreme Court–as Jackson said in the aforementioned veto message.

[gutzmank]

A state standing army was not the same as a militia, which was the body of the populace trained to arms and to be called out when needed.

Article I, Section 10, Clause 1 is about international agreements.

De nada.

[gutzmank]

Both in the Virginia and in the New York Ratification Convention, Federalists and Antifederalists alike thought that the federal courts would exercise the power of judicial review. The only alternative would be for them to enforce laws they considered unconstitutional, which would seem to make it nonsensical for them to swear to uphold the Constitution.

Napolitano, a friend of Scalia, is echoing Scalia’s ridiculous “textualist” argument that the judges “made … up” the power of judicial review. Being a “textualist” means ignoring the ratification conventions, which is ridiculous for a self-styled “originalist” to do.

Judicial review doesn’t necessarily make the judges “ultimate arbiters” of anything. The other branches, the voters, et al., also have to decide what the Constitution means when they exercise their various powers. Jefferson’s point was that judges only decide the cases before them, which is the alternative to judicial supremacy.

[gutzmank]

This certainly is contrary to the position taken by Federalists in the Virginia Ratification Convention. Madison shaded his old position in the context of the Nullification Crisis because he feared secession and knew that contrary to what the Carolinians were saying, protective tariffs were entirely consistent with the original understanding of the Constitution. I explain these matters in James Madison and the Making of America, and I develop them in fuller detail in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,'” Journal of the Early Republic 15 (1995), 569-89.

[gutzmank]

With the Proclamation of 1763, George III banned settlement west of the Appalachian peaks. The British government’s goal was to stave off further conflict with the Indians, the expense of which to Britain wasn’t worth the benefits to Britain. This measure was highly unpopular in America, where wealthy colonists (Washington, Mason, Morris, Franklin, Hancock, et al.) commonly held huge land claims in the West and less wealthy whites might well want to relocate.

Settlers predictably had fractious relations with both Indians and the British/colonial governments.

[gutzmank]

1. Yes, during the first six presidencies.
2. Yes.
3. The chief document marking the shift was Andrew Jackson’s Bank Bill Veto Message of 1832. It’s full of political and sociological arguments, besides the constitutional one.
4. For this issue specifically, Ketcham, Presidents Above Party.

[gutzmank]

Yes; it’s a subset of substantive due process; and yes.

You can find a thorough examination of this general problem here:

http://kevingutzman.com/books/PoliticallyIncorrectConstitution.html

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