Constitutional Myths
Page 41
Mason, George
and the Bill of Rights, 132, 136–37, 139, 285nn9–10
and the Electoral College, 51
and federal powers of taxation, 25
objections to ratification of the Constitution, 52–53, 137, 139
and powers of incorporation, 291n15
and proportional representation, 47–48, 257n19
and slavery/slave representation, 47–48, 258n31
and Virginia Plan, 81
Massachusetts
colonial town meetings and provincial assemblies, 3, 4, 5
postwar insurrections and rebellions, 10–11, 16–17, 68
ratification convention, 24, 66, 140–41
Massachusetts Body of Liberties, 134
Massachusetts Compromise, 66, 140–41
Massachusetts Declaration of Rights, 261n5
Mayflower Compact, 3
McClurg, James, 267n15
McCulloch v. Maryland (1819), 124, 129
McHenry, James, 136, 270n33, 300n53
McIntyre v. Ohio Elections Commission (1995), 163, 166, 293n27
Meese, Edwin, III, 162
Mercer, John Francis, 52
Meyerson, Michael, 110, 281n53
militias, 101, 115, 271n39
Missouri Compromise, 249–50n3
Missouri v. Jenkins (1995), 163
M’Lean, John and Archibald, 107
Monroe, James, 143
Montesquieu, 36, 57–58, 61, 79, 92
Morris, Gouverneur
and the Bill of Rights, 136
drafting of the Preamble, 265n27
on the federal model, 13, 272n6
and federal powers of taxation, 17, 254n25
and the federal veto, 85, 268n17
The Federalist essays, 104
principle of representation and successive filtrations, 74, 265n28
and proportional representation, 41–42, 43–44, 46
ratification debates, 54
and selection of the president, 50, 51
and strong federal government, 8, 9, 11, 13
and threat of political influence on democracy, 164
Morris, Robert
and the Bill of Rights, 147
and federal powers of taxation, 17, 20–21, 25, 254n25
navigation acts, 48–49, 53, 259n35
“necessary and proper” clause (principle of implied powers), 64–66, 97, 100
New American Library’s Mentor imprint and The Federalist Papers, 107, 109, 273n9
New Hampshire’s ratification convention, 262n13
New Jersey Plan, 38, 135
New York Journal, 112, 275n23
New York’s ratification convention, 112–13, 116–17, 132–33, 141, 262n13, 275nn23–25, 276n32, 286n20
Nineteenth Amendment, 172
Ninth Amendment, 150
Nixon v. Shrink Missouri Government PAC (2007), 94
North Carolina’s ratification convention, 141, 262n13
O’Connor, Sandra Day, 293n28
The Original Argument: The Federalists’ Case for the Constitution, Adapted for the 21st Century (Beck), 128, 283–84n59
originalism, 153–75
attempts to distinguish between rules and abstractions, 171, 295–97n43
and civil rights legislation, 173, 299n49
elusiveness of determining “original intent,” 154–56, 160–61, 289nn3–4, 290n5
evolutionary interpretations, 169–73
and First Amendment’s “wall of separation,” 161
and Fourteenth Amendment, 161–62, 164, 171, 173, 297–98n45, 299n49
and “judicial activism,” 162–69
late nineteenth-/early twentieth-century approaches, 161–62
late twentieth-century jurisprudence, 162–73
and liberalization of American society, 169
Madison’s suggested method of constitutional interpretation, 158–60, 290n11
methodological questions not addressed by the Constitution, 156–58
and the national bank debates, 159–60, 290n11, 291n15
and ratification convention proceedings, 158–60, 289n3, 290nn12–13
Scalia and original meaning, 153, 162, 166–73, 289n2, 294n35, 295–97n43
“skyscraper originalism” and “framework originalism,” 300n51
Supreme Court jurisprudence, 153, 160–73
and Thomas, 153, 162–66, 292–93n27, 294n28
and three causes of constitutional disputes, 155–56
and undermining of republican government/democracy by political influence, 164–65, 292n27
Page, John, 264n26
Paine, Thomas, 60, 111, 274n21
Paterson, William, 38, 46, 257n19
Pennsylvania Gazette, 2
Pennsylvania’s ratification convention, 23–24
Pierce, William, 78
Pinckney, Charles
and Bill of Rights, 136
and the federal veto, 82–83, 85, 88, 267n15
slavery arguments, 48
Pinckney, Charles Cotesworth, 42–46, 47–48, 258n33
political influence and republican government/democracy, 164–65, 292n27
Pollock v. Farmers’ Loan and Trust Company (1895), 31–33, 255n29
popular sovereignty, principle of
Constitution text, 72–75, 264n26, 265nn27–28
Federal Convention debates, 73–74, 263n23, 264n24
and the Preamble’s “We the People,” 61, 265n27
present-day interpretations, 74–75
and principle of representation (and successive filtrations), 73–75, 264n26, 265n28
Preamble to the Constitution, 61, 71–72, 265n27
presidency
and authority in foreign relations, 121–22
The Federalist on, 115–16, 117, 121–22, 275n30, 277n34
impeachment power, 88–89
method of selecting a president, 49–52, 71, 115–17, 165–66, 259n39, 259n41, 275n30, 276n31, 277n34
power of appointments and dismissals (removals), 88, 117–19, 156–57, 278n37
treaty-making authorities, 88, 156–57, 268n19, 291n16
veto power, 86–88, 268n17
and Virginia Plan, 86–89
principles of government, 57–75
balanced/complementary relationship between, 58–75
and British Whig tradition, 58, 59–61
Enlightenment influences, 57–58
and The Federalist, 121–22
“federalist principle” and balance of powers, 90–91
and First Federal Congress, 67, 264n26
principle of limited powers, 63–68
principle of popular sovereignty, 72–75
principle of representation (and successive filtrations), 73–75, 264n26, 265n28
principles of individual liberty (rights) and the common good, 59–61, 68–72
restraint principles, 62
strengthening principles, 61–62
Printz v. the United States (1997), 103, 123, 168, 279n44
proportional representation, 39–49, 80–81, 83–85, 256n14, 256n19, 257n29, 259n40, 267nn13–14
Delaware delegation, 39–41
the Great Compromise, 38, 40–47, 49, 256n19, 257n29, 259n40
money bills, 43, 83–84, 259n40
navigation laws and commerce, 48–49, 53, 259n35
and slave importation, 47–49, 258n31, 258n33, 259n34
and slave representation, 44–46, 47–49, 257n26, 257n29, 258n30, 258n33, 259n34, 281n53
and three-fifths compromise, 37, 45–46, 49, 257nn25–26, 258n31
“Publius-Huldah’s Blog: Understanding the Constitution,” 128–29
Rakove, Jack N., 89, 124–25, 289n3
Randolph, Edmund
and federal powers of taxation, 17, 25–26
and national bank debate, 63–64
opposition to ratification of the Constitution, 52, 53
and proportional representation, 46, 84
and Virginia Plan, 13, 36–37, 74, 81
ratification debates and state ratification conventions, x, 23–27, 52–55, 66, 74, 126–27, 132–34, 139–42, 260n47
and calls for a second convention, 112–13, 132–33, 141–42, 260n47, 275n25
and The Federalist, 103–6, 109, 110–20, 273n13, 275nn23–24, 280n48
Massachusetts’ Compromise, 66, 140–41
originalism and proceedings of, 158–60, 289n3, 290nn12–13
proposed amendments and declarations of rights, 26, 52–53, 132, 139–42, 145, 146, 231–33
proposed amendments to confine federal authority to expressly delegated powers, 66–67, 262n13, 270n35
proposed amendments to guarantee popular sovereignty, 74, 264n26
proposed amendments to prevent national taxation, 23–27, 147
See also Bill of Rights
Ravalli Republic (website), 284n59
Read, George, 39–40, 79
Regulators’ rebellion, 10–11, 16–17, 68
Rehnquist, William H., 162
representation, principle of (and successive filtrations), 73–75, 264n26, 265n28
Revolutionary War (War for Independence)
British surrender at Yorktown, 8
and colonists’ concern for public good over individual rights, 70, 263n19
and insistence on local self-governance, 4
and Continental Army, 5, 7
paper bills/currency to finance, 19–20
postwar debtor insurrections, 10–11, 16–17
postwar return to local politics and regional interests, 9–11, 252n18
and Second Continental Congress, 5, 7
Reynolds v. United States (1878), 161, 292n18
Roberts, John, 124
Roosevelt, Theodore, 32
Rossiter, Clinton, 109, 117–18, 273n9, 274n16, 282n54
Rutledge, John, 48, 85, 258n33
Scalia, Antonin
Affordable Care Act decision, 102, 261n6
and The Federalist Papers, 123, 125, 279n44
rejecting original intent in favor of original meaning, 153, 162, 166–73, 289n2, 294n35, 295–97n43
Schnapper, Eric, 299n49
science, advancement of, 95
Second Amendment, 150
Second Continental Congress (1775), 5–8, 16, 19–20
Sedgwick, Theodore, 28
self-governance, colonial, 1–4, 69–70, 250n3
Senate
“advice and consent” of presidential appointments, 117–19, 156–57
Bill of Rights debate and consideration, 147, 288n35
the Great Compromise and equal representation, 38, 40–47, 49, 83–85, 256n19, 257n29, 259n40, 267n13
principle of representation (and successive filtrations), 73–74
“separation of powers,” 62, 261n5
Seventh Amendment, 150, 295n43
Shays, Daniel, 10
Shays’ Rebellion, 10
Sherman, Roger
and the Bill of Rights, 136, 145, 287n31
and direct taxation, 22
and popular sovereignty, 73, 264n24
and powers of incorporation, 291n15
and proportional representation, 259n34
Sixteenth Amendment, 22, 32–33
Sixth Amendment, 150
slavery
and Dickinson’s draft Articles of Confederation, 6
Dred Scott decision and appeals to original intent, 160–61
and the Great Compromise, 44–46, 257n26, 257n29
and proportional state representation, 44–46, 47–49, 257n26, 257n29, 258n30, 258n33, 259n34, 281n53
slave importation controversy, 47–49, 258n31, 258n33, 259n34, 281n53
taxation and slave property, 23, 29
and three-fifths compromise, 37, 45–46, 49, 257nn25–26, 258n31
Smith, William Loughton, 119
social contract theory of government, 57, 132
Souter, David, 103, 123, 168, 279n44
South Carolina’s ratification convention, 262n13
Spain, Jay’s attempted commercial treaty with, 9–10, 259n36
The Spirit of the Laws (Montesquieu), 57, 92
Springer v. United States (1881), 254n27
State Historical Society of Wisconsin, 105
Storer v. Brown (1974), 94
Taney, Roger B., 160–61
taxation, federal powers of, 15–34
apportionment according to population, 22, 28–30, 31–33, 255n29
Article I, Section 8 (first clause), 22–23, 32, 255n29
Article I, Section 9 (fifth clause), 23
Article I, Section 9 (fourth clause), 22–23, 31–32
Article VI, 27
Articles of Confederation prohibiting, 16, 20–21
Bill of Rights debates, 141–42, 143, 147
carriage taxes, 28–29, 157–58
Civil War, 30–31, 254n27
and the colonies, 15–16, 17–18, 254n24
Confederation Congress, 16–17, 20–21
direct taxation, 22, 24–25, 28–34, 253n12
dissents/resistance and antitax crusaders, 23–27, 253n20
ensuring regional fairness, 23, 28, 254n22
excise taxes, 25, 28–29, 254nn21–22
“faculty taxes,” 18, 30–31, 33–34
Federal Convention debates and ratifying conventions, 22–27, 253n20
income taxes, 30–34, 254n27, 255n29
indirect taxes, 22, 28, 32–34
liquor taxes, 25, 28, 254nn21–22
luxury and sin taxes, 28–29
Madison on, 17, 21–22, 24, 27
and nationalists, 17
poll taxes, 18, 25, 254n24
post-Revolutionary War debts, 16–17, 21–22
property taxes, 23, 29–34
Revolutionary War financing, 19–20
Second Continental Congress, 16, 19–20
and slave property, 23, 29
states’ proposed amendments to prevent, 23–27, 147
Supreme Court rulings, 28–29, 31–33, 254n27, 255n29
Tucker’s amendment to limit, 27, 147
Virginia’s declaration of rights and no taxation without representation, 26
“window tax,” 29–30, 254n25
Tenth Amendment, 63, 67, 140, 150, 261n6
Thomas, Clarence
Affordable Care Act dissent, 102, 261–62n6
Bush v. Gore decision, 165–66, 294n28
Citizens United decision, 164–65, 292n27
and The Federalist Papers, 94, 107
Nixon v. Shrink Missouri Government PAC, 94
and originalism, 153, 162–66, 164–66, 292n27, 294n28
three-fifths compromise, 37, 45–46, 49, 257nn25–26, 258n31
Tillinghast, Charles, 117
Tillman, Seth Barrett, 277n36, 278n38
treaty-making powers, 88, 156–57, 268n19, 291n16
Tribe, Laurence, 169–70
Tucker, Thomas Tudor, 27, 67, 146, 147, 270n35
United States v. International Business Machines Corp. (1996), 163
United States v. Lopez (1991), 162–63
United States v. South Eastern Underwriters Association (1944), 273n9
U.S. Supreme Court
authority as final arbiter on issues of constitutionality, 157–58
and federal tax law, 28–29, 31–33, 254n27, 255n29
late nineteenth-/early twentieth-century interpretative approaches, 161–62
late twentieth-century jurisprudence, 162–73
opinions citing The Federalist, 93–94, 103, 123–24, 127–28, 129, 269n30, 273n9, 279n44
originalism/appeals to original intent, 153, 160–73
Scalia and original meaning, 153, 162, 166–73, 289n2, 294n35, 295–97n43
Thomas and originalism, 153, 162–66, 292–93n27, 294n28
See also originalism
U.S. Term Limits, Inc. v. Thornton (1995), 163
veto, federal
Hamilton’s arguments, 115
Madison’s arguments, 80, 81–86, 89–92, 267n12, 267nn14–15, 268n22
Pinckney-Madison motion to strengthen, 82–83, 85
presidential veto and “proper proportion” of each branch that could override, 86–88, 268n17
Virginia
colonial charter, 134
“declaration of rights” and principle of no taxation without representation, 26
House of Burgesses, 3–4
institution of slavery, 249n3
proposed amendments, 141
ratification convention, 24–26, 141, 262n13
Virginia Declaration of Rights, 26, 285n9
Virginia Independent Chronicle, 111
Virginia Plan at Federal Convention, 13, 36–37, 41, 77–78, 81–83, 135, 197–200
Virginia Resolutions (1798), 94–95, 269n31
Virginia Statute for Religious Freedom (1798), 142, 161
Waite, Morrison, 161, 292n18
“wall of separation” between church and state, 161, 292n18
War of 1812, 30
Warren, James, 10, 13, 140, 252n18
Washington, George
and the Bill of Rights, 133, 142, 143–44
and the Continental Army, 5
Farewell Address, 34
and federal powers of taxation, 17, 28, 34, 253n11
and The Federalist, 110–11
and Jay’s Treaty, 157, 291n16
“Legacy” letter to the states (1783), 9, 187–96
national bank bill, 63–65
New England tour (1789), xi, 250n4
postwar advocacy for strong federal government, 8–13, 65, 252n18
presidency/as first president, 114, 143
and proportional representation, 44
and ratification debates, 53, 54, 142
Virginia delegation and Virginia Plan, 81
Webster, Noah, 113
Wentworth, Benning, 3
Whig tradition, 58, 59–61
White, Alexander, 288n31
White, Byron, 94
Williamson, Hugh, 45, 85, 136, 137–38
Wilson, James, 54, 73
argument for direct election of representatives, 116, 263n23
and federal veto, 85, 87, 267n14
and powers of incorporation, 291n15
and proportional representation, 41, 42, 43
speech in support of the Constitution, 111
Wilson, Woodrow, 161
Wood, Gordon S., 269n27
Wooddeson, Richard, 123
Wythe, George, 81–82
Yates, Robert, 52, 257n19
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