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24 September 2017

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Jack

Sir

"Jefferson himself believed that all three branches of the federal government should determine the constitutionality of their actions and in the Kentucky Resolution, which he authored, he maintained the same power for the states."

How do you believe this would have been achieved in terms of practice? I agree that leaving the adjudication of what is constitutional to the Supreme Court makes them superior to the other two branches, which was not intended in the Constitution.

FederalistForever

The Kentucky Resolution was authored by Jefferson, who did not participate at all in the Constitutional Convention of 1787 (as he was in Paris at the time). The Virginia Resolution was authored by Madison, who was present throughout the 1787 Constitutional Convention and was one of its leading participants. Thus, as between these two, we should defer to Madison on what the Constitution means.

Only the Jefferson-authored Kentucky Resolution contains the extremely dangerous and unwise idea that a State can “nullify” a law it determines is unconstitutional. Madison’s Virginia Resolution, by contrast, contains no such provision. Rather, the Madison-authored Virginia Resolution only goes so far as to give to States a right of “interposition” (a concept Hamilton discusses in Federalist #33).

In the late 1820s and early 1830s, Calhoun took up Jefferson’s ill-conceived nullification idea and ran with it. He tried to enlist Madison in his effort. Madison would have no part of Calhoun’s nullification scheme. From his retirement in Montpelier, Madison denounced Calhoun and referred to “nullification” as a “heresy” that would bring “disastrous consequences.” How right he was (and is!).

http://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-02-02-02-3065

http://www.heritage.org/the-constitution/report/interposition-and-the-heresy-nullification-james-madison-and-the-exercise#_ftn48

One other thing: John Marshall’s opinion in Marbury v Madison is supported by Hamilton’s discussion of the judicial power in Federalist #78.

(Love this website, but as I am a fan of the Federalists, I could not resist making these comments!)

Tel

You guys might be interested in this one.

http://tomwoods.com/ep-1003-alexander-hamilton-and-the-awful-judges-who-carried-on-his-legacy/

Lars

Article III, Sections 1 & 2. Besides, a lot of this was settled by 1865.

DianaLC

Thought-provoking post.

Sometimes I find that reading analysis of the "founders'" thinking on matters that are now of current debate is in a way like trying to interpret the behaviors of Biblical figures.

I'm still pondering today the story about Moses and the bronze serpent. Now I have to ponder the thought that Honest Abe did not approve of states' rights. My first thought was that of course he did not think states had a right to approve of slavery within their individual boundaries. I know that his thinking was influenced by the expanding country--the territories and their individual decisions about allowing or disallowing slavery. But as for other states' rights questions, I'll have to do some research about Abe's thinking.

And he would most likely also disapprove of California's threat to leave the union.


In the end, I still admire The Constitution as it is written. It is a document that has somehow held this country together for some time now.

Just as the Bible has, it holds up with every new method of interpretation. I do understand that the Bible was constructed very early and that the Catholic and Protestant Bibles are different. I do know about the arguments over which texts were excluded and which were included and whether they should or should have not been still go on. But in the end, my King James version still inspires me. Just as the Constitution as it is written still inspires me.

In the end, we have to remember that the Articles of Confederation simply did not work--too many individual states' rights--while the Constitution has held up for a good long time. To me, the only people upset about it are those socialists and communists who prefer Mark, Engels and Nietzsche over the founders. (I will only consider that all those people of my youth who carried around Mao's little red book were too high on drugs or too brain damaged from drugs to be considered "thinkers.")

Eadwacer

Off the top of my head, I'd say that we would be a much different country:
1. All the actions by state governments over the years that have been overturned by the SCOTUS would not have been.
2. We would probably still have slavery (because the federal government couldn't outlaw it), and therefore probably would not have had a Civil War.
3. To the extent that they were not blocked by the states, federal laws and departmental regulations would likely be a lot more oppressive, because they couldn't be ruled on by the SCOTUS
4. SCOTUS would, I think, have a lot less to do, and might even become irrelevant.
5. Overall, the situation would look a lot more like that under the Articles of Confederation.

ToivoS

Reading US history seriously for the first time in recent decades I have come to respect Virginia more and more. It seems it was Madison (supported by Jefferson) with the backing of the Virginia clergy that pushed hard for the separation of churches from the state. That was one very good idea. Those precursors to the southern evangelicals have left us with a healthy polity.

turcopolier

toivo s

A closer look atthe Virginia clergy of that time would reeal IMO that they were almost all Episcopal and Presbyterian. pl

turcopolier

Lars

The sections of the Constitution that you cited do not have anything to do with judicial review. As for your comment about 1865 the defeat of the South would have meant something if Reconstruction had not ended and occupation troops withdrawn. In the event with the exception of the elimination of slavery very little was changed politically once a general amnesty took place. Much the same people ran and owned everything as before and the US Senate was quickly populated with former Confederates. pl

Fred

Eadwacer,

"We would probably still have slavery."

probably not. Industrialization would still have proceeded to provide economic incentives to eliminate slavery entirely and the other Western nations would have been pressured to take some actions against the CSA due to slavery for their own domestic political reasons.

turcopolier

fred

And the increasing mechanization of agriculture throughout the second half of the 19th century would have made slave labor relatively costly compared to machines. pl

Generalfeldmarschall von Hindenburg

I have to wonder if Jefferson and Adams and even Hamilton would have been more careful in their decisions had they seen the massive centralizing tendencies underway post- Civil War. The idea of state's rights has become a hot topic because so many of them loathe the current president. (Shoe, meet other foot) But I doubt California is going to get away with much. If they do, it says more about the rot in the centre than any willingness to give states any leeway on any kind of policies whatever.

DianaLC

The Southern Presbyterians were among Mark Twain's least favorite people. One of his stories that doesn't always get the attention it deserves is "The Mysterious Stranger." It's a must read if one wants to really understand the reason Twain's character Huck chose damnation over turning Jim in.

ked

I wouldn't jump to the assertion that mechanization / industrialization would assure the withering away of slavery. Many historians note that the Cotton Gin extended the rule of King Cotton, that in turn made slave labor a "neccessity". Like economic determinism, technological idealism is suspect for determining social & cultural progress (or simply, change, if you prefer an unloaded term). The power of our peculiar institution was profound - so deeply woven in our Southern culture that the best & brightest, long recognizing its poison, could do nothing more than continue drinking. I think it quite possible that an Americanized slavery could've morphed over the decades to survive even onto the present. Different, yes, yet recognizable (& codified by law) to our Founders, be they Massachusett or South Carolinian.

turcopolier

ked

Nonsensical bullshit based on the notion that Southerners were and are evil. pl

ked

Col, as a Southernor (with generational roots) I've gotta tell you, you've got me wrong, you've got my point wrong, & I (at risk of bring banned) feel you may be over-reacting to my point. We can have no certain idea of when, how or even if slavery would've ended. It's all speculation, informed or not, and ultimately it matters not. You've spent a life with focus on the military arts and history. I've focused on technology and history (& business development in technical fields, many w/ initial applications in combat sys & security). There's no technological determinism just as there's no economic determinism - nothing is determined after birth & before death. I offered my perspective as a thought experiment, an alternative to the mainstream model that slavery would've passed naturally. Maybe it would've... maybe not so naturally - maybe a violent end was the most probable transition.
In any case, I must insist I don't accept that I consider my Southern forefathers evil, or those of my friends in the South (where I live) - some of whom were substantial slave-owners.

Babak Makkinejad

Abraham Lincoln and the Federal Congress could have idemnified the slaves at twice the market rate; financed through issuing green backs.
It would have been much cheaper than war, and perchance, the plantation owners could have accepted that offer.

turcopolier

ked

"maybe a violent end was the most probable transition." Why? Is it because you take Faulkner's view that slavery was the South's original sin and it had to be expiated? If you think that, why is it that the Northern states which had all had slavery as an institution did not need to be punished as well? pl

ked

No, nothing to do with Faulkner.
The road to war I note is from contemporaneous writings of the Founders ( mostly Southerners) who could not discern a consensus / workable process for ending slavery. Rather they left it for future contention... wherein they feared violence. Activists believed the American Colonization Society was worth trying. absolutely - much was regionalism & politics... the North combining sanctimony, hypocrisy, mercantilism & opportunism in good measure (& the West, frustrated).

I've been reading more detailed histories of the transition period from Monroe (the "Last Founder") to Lincoln. Via a bio of Henry Clay I was reminded of slavery's impact, from private to transcendent. {Heidler's bio "HC The Essential American" is v good on the family-personal as well as times & politics.} The difficulty, inconsistency, emotional attachments, angst experienced by slave owners... it was a trap, a handed-down burden to possess humans. I remind myself to recognize Presentism when contemplating the past, its circumstances and the attendant values.

Anyway, when reminded of those against slavery treating slaves as objects, and slave owners crying over the loss of their life-long slave companions (Clay's hand-in-hand on his death bed), one can admit the tragedy and transcendence of it all.

I am informed somewhat by the cases of Confederate widows receiving a pensions... the last in '96 (20th Century) until her death in'04 (this Century). I can imagine a series of transitional stages of slavery being "aged out" over the last 150 years that might've occurred. That seems to have been harder work than war. (Not having war is still very hard today... even the dubious ones.)

We all know Jefferson's thoughts on slavery from his Notes on the State of Virginia... http://xroads.virginia.edu/~hyper/jefferson/ch18.html and his attempts to address it in important state documents.

"why is it that the Northern states which had all had slavery as an institution did not need to be punished as well?"

Not to be cute, I think the North was punished, though differently. Some of that distinction was pure luck, some demographic socio-economic (working class pop.) and also in the nature of religious institutions inculcating a value structure that supports the status quo. Of course, winners almost always feel better. Southerners, ever competitive, have usually dealt ok with losing.

ked

Babak, In theory, perchance. In practice, things ain't always solved by printing $.

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