1997-08-12 - Re: A peculiar notion

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From: “Michael Froomkin - U.Miami School of Law” <froomkin@law.miami.edu>
To: cypherpunks@cyberpass.net
Message Hash: d4e1f69885e2e6642082a777066bfdc3415ce4d54cc9807c842cf7bd59933679
Message ID: <Pine.SOL.3.95.970812101447.4276G-100000@viper.law.miami.edu>
Reply To: <v03102800b013d04c0f1b@[]>
UTC Datetime: 1997-08-12 14:29:51 UTC
Raw Date: Tue, 12 Aug 1997 22:29:51 +0800

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From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
Date: Tue, 12 Aug 1997 22:29:51 +0800
To: cypherpunks@cyberpass.net
Subject: Re: A peculiar notion
In-Reply-To: <v03102800b013d04c0f1b@[]>
Message-ID: <Pine.SOL.3.95.970812101447.4276G-100000@viper.law.miami.edu>
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May a professor of constitutional law join in?

There *are* things you might object to about Lincoln, e.g. his unilateral
suspension of the writ of habeus corpus (it was more than arguable that
this should have required a congressional act), but the arguments in this
post are not among them.

Read on.

On Sun, 10 Aug 1997, Steve Schear wrote lots including:

> But, as Jefferson Davis, the Confederate president, pointed out, the
> Constitution had been "a compact between independent states." The powers
> given to the federal government had been "delegated," and whatever is
> delegated can be withdrawn. 

The above is the historical and logical error.  In fact, as you will see
if you read Gordon Woods' magisterial account of the legal and political
history of the constitution, the dominant view (articulated in the
Federalist papers, for example) was the "dual sovereignty" thesis.  In
this view BOTH the federal government AND the states were agents of the
PEOPLE, who were the only sovereign.  This is why the federal constitution
was ratified by popular votes, not by state legislatures -- the
legislatures were not vested with the power to create the union, as this
power was outside the delegation to the states.  Naturally, rebel
Jefferson Davis glossed over all this, if he even understood it, since it
was fatal to his cause. 

It is consistent with the dual sovereignty thesis to say that "what is
delegated can be withdrawn" but the entity doing the "withdrawing" is the
people (by some democratic process, presumably, e.g. a new constitutional 
convention), not the states, for it is the people who did the delegation
in the first place.  

A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | "Cyberspace" is not a place.
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's @%#$%$# hot here.