E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Over the break, I had the privilege of rereading, Christian
G. Fritz, AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA’S CONSTITUTIONAL
TRADITION BEFORE THE CIVIL WAR (Cambridge, 2008).Fritz’s book is a must read for anyone
interested in American constitutional history, development, politics and law
(i.e., political scientists, historians and law professors, as well as their
students).The work focuses on the
contested meaning of “popular sovereignty” during the first 80 years of the
American constitutional experience.Most
discussions of popular sovereignty focus on Federalists, who while agreeing
that legitimate government was rooted in the consent of the people, made best efforts
to prevent an unmediated popular will from having any influence on actual
governance.The heroes of AMERICAN
SOVEREIGNS, by comparison, are a collection of largely forgotten Americans, who
sought to place the commitment to popular sovereignty at the heart of the
American constitutional experience.
AMERICAN
SOVEREIGNS is particularly valuable for rediscovering vital conflicts in
American constitutional history and revising our understanding of others.A few scholars are aware of the successful
struggles Vermont and Kentucky waged for statehood.Hardly anyone remembers the way the leaders
of proposed states of Franklin and Transylvania insisted that the principles of
the Declaration of Independence justified granting their separate
status to their regions. Turns out more than one people
in American history has issued a declaration of independence.Fritz
tells the stories of Shay’s Rebellion, the Whiskey Rebellion, and the Dorr
Rebellion, but with far more attention to the populist principles that animated
the rebels than is included in histories written by the Federalist
victors.By doing so, he brings back
both politics and coercion to the study of the establishment of constitutional
norms.His work pays careful attention
to disputes over the right to instruct representatives and the meaning of “alter
or abolish” clauses in state constitutions that are presently forgotten, in
large part because the Federalist winners of constitutional struggles wanted
those disputes forgotten.I think the
book might have included Rhode Island’s failed effort not to join the union, as
another forgotten exercise of popular sovereignty, but no one who reads this
book will ever treat the Constitution of the United States as the necessary
outcome of the Declaration of Independence, even if they share my more elitist
Federalist sentiments.
By reminding us of the contested history of popular sovereignty, Fritz casts new light on the famous Madisonian distinction between a republic and a democracy. Madison, as is well known, claimed that a democracy was a polity in which the people ruled directly, whereas in a republic the people ruled through their representatives. Most commentators treat these passages in the Federalist Papers as articulating the contemporary wisdom of the time. Robert Dahl and others insist that what Madison called a republic is actually a representative democracy, that Madison was not an enemy of majority rule. Nevertheless, he and others agree that a republic or representative democracy is superior to what Madison called a democracy. AMERCAN SOVEREIGNS is the story of those Americans who disagreed, who saw representation as a necessary evil rather than as a means for blunting the force of majority rule. Madison, from this perspective, was not so much making an argument as trying to place many of his follow citizens outside the American constitutional experience. More populist Americans, Fritz demonstrates, have an ancestry far more rooted in American constitutionalism, particularly American state constitutionalism, than either the Federalist Papers or Federalist histories acknowledge.
The Tea Party were not populist; they were a fringe element that became powerful through funding by cynics in the Republican party. Popular movements have conflicting elements, but the Tea Party was defined by contradiction, so less political than anti-political: expansionist and isolationist, "close the borders" and "invade their countries, kill their leaders and convert them to Christianity", "lower taxes" and "support the troops", "the heartland" and "the entrepreneurial spirit". It was less a segment of society that would support a fascist government than something fascist in itself: middle American nihilism, spoiled and lazy. "I'm going to take my Social Security checks and Go Galt"
And pace Mark Graber and Occupy Wall St, it's a not a question of elitism or not, but of what defines the elite. Yale prof, "Tiger Mom" has a new book out, co-written with her Yale Law professor husband.
"The Triple Package —co-authored by her husband, Jed Rubenfeld — which says that there are eight groups of people superior to all others: Chinese, Cuban exiles, Indians, Iranians, Jews, Lebanese-Americans, Mormons, and Nigerians." http://gawker.com/infamous-tiger-mom-returns-to-troll-the-entire-world-1494983392/@jordansargent
It's not a good time to be defending the moral authority of the high Church. It's not anti-intellectual to admit that Leiter's academicism is a form of decadence. The Fritz book on the other hand sounds good
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