Some Con Law Textbook Notes

Learning lots of entertaining things from my Con Law book’s hurried history of the constitution’s roots.

The Constitution has been “successful” and showed the “framers’ wisdom” (19).  The Articles of Confederation, by contrast, were a “failed federal government”.  The authors list as evidence an economic downturn, hyperinflation in state currencies, and fear of invasion by Great Britain (26).  I suppose it is true that the Articles failed as a government, but to me that failure could have been a success otherwise.  Certainly the Constitution failed to create a significantly federal government.

There is a lot of incoherent discussion of sovereignty resting in “we the people” (21), and government resting upon the “consent of the governed”.  What does the book think that this might mean?  I realize that most people find reference to a collective’s “will” to be meaningful, but I don’t understand why.   Also, if the people are sovereign, why is the present generation bound by our grandparents (22)?  Aren’t we a sovereign people too?

Our constitution supposedly mostly protects rights of individuals, not prerogatives of government (23).  In theory and text maybe… In reality?

The text claims that Americans embraced Locke’s ideas of consent and the social contract.  I can’t disagree with that, though I wonder how coherent those ideas remained once Americans had embraced them.  Too much Locke the democratic supremacist, too little Locke the Natural Rights theorist?

The book corroborates a claim I have heard before that the Constitution has some roots in George Washington’s frustration in commanding and paying for the Continental army (27).  Isn’t it typical of bureaucrats and politicians always to obsess over the last crisis?  I find it fitting that the Federal Government has its roots in George Washington’s ambitions for an American military empire.  Leviathan indeed.  Also, Washington’s support for the new Constitution was apparently crucial for its success.  We can blame Washington for the death of viable regulatory competition in North America – that’s why he’s my third least favorite president.

Interestingly, it claims that Madison intended for the text, and not the drafters’ intentions or interpretations of it, to define the Constitution’s meaning.  This was supposedly one of the reasons that the drafters’ did not share notes on their debate (29).

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.