With the 150th anniversary of the Civil War, I was asked in this cover story for the Civil War Magazine to explore the rivaling constitutional claims that were made at the start of that bloody conflict. As a military history buff, I have occasionally written for these history magazines but I found this assignment particularly intriguing.
Over the centuries, various excuses have been employed for starting wars. Wars have been fought over land or honor. Wars have been fought over soccer (in the case of the conflict between Honduras and El Salvador in 1969) or even the shooting of a pig (in the case of the fighting between the United States and Britain in the San Juan Islands in 1859).
But the Civil War was largely fought over equally compelling interpretations of the U.S. Constitution. Which side was the Constitution on? That’s difficult to say.
The interpretative debate—and ultimately the war—turned on the intent of the framers of the Constitution and the meaning of a single word: sovereignty—which does not actually appear anywhere in the text of the Constitution.
Southern leaders like John C. Calhoun and Jefferson Davis argued that the Constitution was essentially a contract between sovereign states—with the contracting parties retaining the inherent authority to withdraw from the agreement. Northern leaders like Abraham Lincoln insisted the Constitution was neither a contract nor an agreement between sovereign states. It was an agreement with the people, and once a state enters the Union, it cannot leave the Union.
It is a touchstone of American constitutional law that this is a nation based on federalism—the union of states, which retain all rights not expressly given to the federal government. After the Declaration of Independence, when most people still identified themselves not as Americans but as Virginians, New Yorkers or Rhode Islanders, this union of “Free and Independent States” was defined as a “confederation.” Some framers of the Constitution, like Maryland’s Luther Martin, argued the new states were “separate sovereignties.” Others, like Pennsylvania’s James Wilson, took the opposite view that the states “were independent, not Individually but Unitedly.”
Supporting the individual sovereignty claims is the fierce independence that was asserted by states under the Articles of Confederation and Perpetual Union, which actually established the name “The United States of America.” The charter, however, was careful to maintain the inherent sovereignty of its composite state elements, mandating that “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” It affirmed the sovereignty of the respective states by declaring, “The said states hereby severally enter into a firm league of friendship with each other for their common defence [sic].” There would seem little question that the states agreed to the Confederation on the express recognition of their sovereignty and relative independence. Supporting the later view of Lincoln, the perpetuality of the Union was referenced during the Confederation period. For example, the Northwest Ordinance of 1787 stated that “the said territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the United States of America.”
The Confederation produced endless conflicts as various states issued their own money, resisted national obligations and favored their own citizens in disputes. James Madison criticized the Articles of Confederation as reinforcing the view of the Union as “a league of sovereign powers, not as a political Constitution by virtue of which they are become one sovereign power.” Madison warned that such a view could lead to the “dissolving of the United States altogether.” If the matter had ended there with the Articles of Confederation, Lincoln would have had a much weaker case for the court of law in taking up arms to preserve the Union. His legal case was saved by an 18th-century bait-and-switch.
A convention was called in 1787 to amend the Articles of Confederation, but several delegates eventually concluded that a new political structure—a federation—was needed. As they debated what would become the Constitution, the status of the states was a primary concern. George Washington, who presided over the convention, noted, “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all.” Of course, Washington was more concerned with a working federal government—and national army—than resolving the question of a state’s inherent right to withdraw from such a union. The new government forged in Philadelphia would have clear lines of authority for the federal system. The premise of the Constitution, however, was that states would still hold all rights not expressly given to the federal government.
The final version of the Constitution never actually refers to the states as “sovereign,” which for many at the time was the ultimate legal game-changer. In the U.S. Supreme Court’s landmark 1819 decision in McCulloch v. Maryland, Chief Justice John Marshall espoused the view later embraced by Lincoln: “The government of the Union…is emphatically and truly, a government of the people.” Those with differing views resolved to leave the matter unresolved—and thereby planted the seed that would grow into a full civil war. But did Lincoln win by force of arms or force of argument?
On January 21, 1861, Jefferson Davis of Mississippi went to the well of the U.S. Senate one last time to announce that he had “satisfactory evidence that the State of Mississippi, by a solemn ordinance of her people in convention assembled, has declared her separation from the United States.” Before resigning his Senate seat, Davis laid out the basis for Mississippi’s legal claim, coming down squarely on the fact that in the Declaration of Independence “the communities were declaring their independence”—not “the people.” He added, “I have for many years advocated, as an essential attribute of state sovereignty, the right of a state to secede from the Union.”
Davis’ position reaffirmed that of John C. Calhoun, the powerful South Carolina senator who had long viewed the states as independent sovereign entities. In an 1833 speech upholding the right of his home state to nullify federal tariffs it believed were unfair, Calhoun insisted, “I go on the ground that [the] constitution was made by the States; that it is a federal union of the States, in which the several States still retain their sovereignty.” Calhoun allowed that a state could be barred from secession by a vote of two-thirds of the states under Article V, which lays out the procedure for amending the Constitution.
Lincoln’s inauguration on March 4, 1861, was one of the least auspicious beginnings for any president in history. His election was used as a rallying cry for secession, and he became the head of a country that was falling apart even as he raised his hand to take the oath of office. His first inaugural address left no doubt about his legal position: “No State, upon its own mere motion, can lawfully get out of the Union, that resolves and ordinances to that effect are legally void, and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.”
While Lincoln expressly called for a peaceful resolution, this was the final straw for many in the South who saw the speech as a veiled threat. Clearly when Lincoln took the oath to “preserve, protect, and defend” the Constitution, he considered himself bound to preserve the Union as the physical creation of the Declaration of Independence and a central subject of the Constitution. This was made plain in his next major legal argument—an address where Lincoln rejected the notion of sovereignty for states as an “ingenious sophism” that would lead “to the complete destruction of the Union.” In a Fourth of July message to a special session of Congress in 1861, Lincoln declared, “Our States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution—no one of them ever having been a State out of the Union. The original ones passed into the Union even before they cast off their British colonial dependence; and the new ones each came into the Union directly from a condition of dependence, excepting Texas. And even Texas, in its temporary independence, was never designated a State.”
It is a brilliant framing of the issue, which Lincoln proceeds to characterize as nothing less than an attack on the very notion of democracy:
Our popular government has often been called an experiment. Two points in it, our people have already settled—the successful establishing, and the successful administering of it. One still remains—its successful maintenance against a formidable [internal] attempt to overthrow it. It is now for them to demonstrate to the world, that those who can fairly carry an election, can also suppress a rebellion—that ballots are the rightful, and peaceful, successors of bullets; and that when ballots have fairly, and constitutionally, decided, there can be no successful appeal, back to bullets; that there can be no successful appeal, except to ballots themselves, at succeeding elections. Such will be a great lesson of peace; teaching men that what they cannot take by an election, neither can they take it by a war—teaching all, the folly of being the beginners of a war.
Lincoln implicitly rejected the view of his predecessor, James Buchanan. Buchanan agreed that secession was not allowed under the Constitution, but he also believed the national government could not use force to keep a state in the Union. Notably, however, it was Buchanan who sent troops to protect Fort Sumter six days after South Carolina seceded. The subsequent seizure of Fort Sumter by rebels would push Lincoln on April 14, 1861, to call for 75,000 volunteers to restore the Southern states to the Union—a decisive move to war.
Lincoln showed his gift as a litigator in the July 4th address, though it should be noted that his scruples did not stop him from clearly violating the Constitution when he suspended habeas corpus in 1861 and 1862. His argument also rejects the suggestion of people like Calhoun that, if states can change the Constitution under Article V by democratic vote, they can agree to a state leaving the Union. Lincoln’s view is absolute and treats secession as nothing more than rebellion. Ironically, as Lincoln himself acknowledged, that places the states in the same position as the Constitution’s framers (and presumably himself as King George).
But he did note one telling difference: “Our adversaries have adopted some Declarations of Independence; in which, unlike the good old one, penned by Jefferson, they omit the words ‘all men are created equal.'”
Lincoln’s argument was more convincing, but only up to a point. The South did in fact secede because it was unwilling to accept decisions by a majority in Congress. Moreover, the critical passage of the Constitution may be more important than the status of the states when independence was declared. Davis and Calhoun’s argument was more compelling under the Articles of Confederation, where there was no express waiver of withdrawal. The reference to the “perpetuity” of the Union in the Articles and such documents as the Northwest Ordinance does not necessarily mean each state is bound in perpetuity, but that the nation itself is so created.
After the Constitution was ratified, a new government was formed by the consent of the states that clearly established a single national government. While, as Lincoln noted, the states possessed powers not expressly given to the federal government, the federal government had sole power over the defense of its territory and maintenance of the Union. Citizens under the Constitution were guaranteed free travel and interstate commerce. Therefore it is in conflict to suggest that citizens could find themselves separated from the country as a whole by a seceding state.
Moreover, while neither the Declaration of Independence nor the Constitution says states can not secede, they also do not guarantee states such a right nor refer to the states as sovereign entities. While Calhoun’s argument that Article V allows for changing the Constitution is attractive on some levels, Article V is designed to amend the Constitution, not the Union. A clearly better argument could be made for a duly enacted amendment to the Constitution that would allow secession. In such a case, Lincoln would clearly have been warring against the democratic process he claimed to defend.
Neither side, in my view, had an overwhelming argument. Lincoln’s position was the one most likely to be upheld by an objective court of law. Faced with ambiguous founding and constitutional documents, the spirit of the language clearly supported the view that the original states formed a union and did not retain the sovereign authority to secede from that union.
Of course, a rebellion is ultimately a contest of arms rather than arguments, and to the victor goes the argument. This legal dispute would be resolved not by lawyers but by more practical men such as William Tecumseh Sherman and Thomas “Stonewall” Jackson.
Ultimately, the War Between the States resolved the Constitution’s meaning for any states that entered the Union after 1865, with no delusions about the contractual understanding of the parties. Thus, 15 states from Alaska to Colorado to Washington entered in the full understanding that this was the view of the Union. Moreover, the enactment of the 14th Amendment strengthened the view that the Constitution is a compact between “the people” and the federal government. The amendment affirms the power of the states to make their own laws, but those laws cannot “abridge the privileges or immunities of citizens of the United States.”
There remains a separate guarantee that runs from the federal government directly to each American citizen. Indeed, it was after the Civil War that the notion of being “American” became widely accepted. People now identified themselves as Americans and Virginians. While the South had a plausible legal claim in the 19th century, there is no plausible argument in the 21st century. That argument was answered by Lincoln on July 4, 1861, and more decisively at Appomattox Court House on April 9, 1865.
Jonathan Turley is one of the nation’s leading constitutional scholars and legal commentators. He teaches at George Washington University.
Article originally published in the November 2010 issue of America’s Civil War.
mespo,
My house-guest is leaving next Monday. You would have enjoyed spending time with him. He is a retired “Don” from, as he refers to it, “the first University in the English-speaking world”. A very down to earth man who thoroughly enjoys his scotch.
Brunch is in his honor and is going to be composed entirely of Mexican cuisine as that is his “new found” favorite food. (I’m getting very tired of it)
mespo727272
1, September 27, 2010 at 8:40 pm
“Then in a separate format use no more than 3 paragraphs to explain your position … by Friday … discussion at Sunday brunch (no quarter given for hang-overs)”
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Does this apply to me too? What ever shall I do with the Dewars Signature? And most importantly, what time is brunch?:D
===========================================================
Weisenheimer
… those were final instructions to the grandkids (3 college freshman/women)who have been following this thread with much enthusiasm
Brunch is at 1:00 PM and I have a bottle of Dewars Signature saved just for you. 🙄
I can’t wait to hear their presentations for I expect a spirited discussion will follow.
“Then in a separate format use no more than 3 paragraphs to explain your position … by Friday … discussion at Sunday brunch (no quarter given for hang-overs)”
******************
Does this apply to me too? What ever shall I do with the Dewars Signature? And most importantly, what time is brunch?:D
… slings
Give thought to :
” … but any argument can be carried to such an extreme that the other side simply digs in and refuses to listen. As we all know, this is counter-productive and beneath learned discussion. …”(mespo)
Close you eyes to the slimgs and arrows and note instead the excellent points made by each. Correlate with other opinions and comments and include the initial statements by the Prof. Then in a separate format use no more than 3 paragraphs to explain your position … by Friday … discussion at Sunday brunch (no quarter given for hang-overs)
Let’s review:
‘To talk about effective reasoning is to imply concern for an audience.
Arguments are not offered in a vacuum.
Success ultimately depends on the assent of an audience.
Assent is based on audience acceptance of the reasoning.’
So, having obtained the assent of the audience here we can now stipulate that I, unlike my opponent at present, do in fact know the difference between a hawk and a handsaw no matter which way the wind blows?
Accordingly, since I reckon it would be ‘bad form’ for me to delineate each and every informal fallacy of logic employed here:
Vince Treacy 1, September 27, 2010 at 6:24 am
and here:
Vince Treacy 1, September 27, 2010 at 6:30 am
Well then…
“There was only one road back to L.A., U.S. interstate 15. Just a flat-out high speed burn through Baker, and Barstow, and Berdoo. Then on to the Hollywood freeway straight into frantic oblivion. Safety… obscurity… just another freak in the freak kingdom. We’d gone in search of the American dream, it had been a lame fuck around. A waste of time. There was no point in looking back. Fuck no, not today, thank you kindly. My heart was filled with joy. I felt like a monster reincarnation of Horatio Algier, a man on the move, and just sick enough to be totally confident.” — H.S.Thompson
Vince:
No insult intended. It is simply that you’ve clearly made your points as Bob, Esq. has made his. Repeating the arguments and counter-arguments doesn’t make your position any stronger (to the contrary it neatly fits into Shakespeare’s sentiment), and expecting a complete reversal of Bob,Esq.’s strongly held position seems only a remote possibility.
BIL is obviously correct that obiter dictum is simply the opinion writer’s “by the way” observations and not binding on anybody. He likewise is correct that a State may not be oppressed without redress by the Federal government and may not be divested of its inherent powers by some Federal fiat. White is instructive but not comprehensive as Buddha notes. Regardless of the merits of the argument, my objection is not with the logic but more with its somewhat caustic presentation and rebuttal of opposing viewpoints.
As I stated, I generally agree with your take on this situation, but any argument can be carried to such an extreme that the other side simply digs in and refuses to listen. As we all know, this is counter-productive and beneath learned discussion. A little biting sarcasm is fine, but I don’t think questioning the competency of one of our long-standing and regular contributors is necessary to argue the point. I don’t think that you want to project that kind of overbearing advocacy. You never have before.
Larry:
I can’t quite tell if your comments are sarcasm or hopeless ignorance but assuming the latter, I wouldn’t expect someone who worships at the DeLorenzo altar to understand any complexity at all, but just to correct a few of your outlandish notions:
I wrote the apparently mystical words you cited – not JT.
It is possible to perform an constitutionally permissible executive act which is not explicitly stated in the Constitution but that reasonably flows from its conferral of executive authority.
Lincoln had the right as Commander in Chief and as authorized by Congress to rein in a group of treasonous yahoos bent of some wild scheme to set up their own nation surrounded by US States. Washington did the same in Pennsylvania.
The Civil War (and all the issues it decided) is over and you won’t get a different result by re-fighting it in your mind.
Buddha,
I like what you have to say….However, I think that it is too over the head for some on this site….Could I paraphrase it to say that a State has a right to withdraw from the Union if they…say….felt part of an Agreement/Annexation/Contract were breached? That is my argument to VT…..I have also asked him to tell me what other state was ANNEXED? so far I have yet to hear a response….
wow Mr Turley—-this line makes NO sense:
“While I agree that Lincoln, as a matter of policy, had to rein in the rebellious South Carolina by force, there is little doubt in my mind that the founders believed the individual states could secede from the federal, as opposed to national, “contract.””
If you believe that the founders believed states could secede from the federal, then how could u possibly agree that Lincoln could use force to keep states IN the federal?? I’ve always liked you, but now you’re beginning to make glaring contradictions.
wow, didnt have time to read all this—but im surprised Mr Turley that you didnt realize Lincoln was wrong. Havent you ever read books by Thomas J. DiLorenzo?? Lincoln was completely against secession—odd since the Constitution permits it. The founders didnt create a nation, they created a confederation of states—and the South was RIGHT.
I’ve reread our exchange. I think we may have a semantic disagreement about where the line is drawn between binding and persuasive precedent.
Dictum in this country are treated as persuasive, not controlling – relevant to the ruling or not. The U.K. may employ rationes decidendi, but the last time I looked, we didn’t take that incorporating principle into how we apply judgments or codify our laws. The holding is the holding. This is where our terminology may collide: I was taught that the holding consisted of the decree. Judicial decrees read as black letter until overturned, dispensed with by legislation, and/or modified and explained out of existence by subsequent rulings. But that the majority opinion was the place to go if reasoning was needed but to treat it as any other dissent or ancillary opinion as dictum – persuasive language that does not bind the law but rather informs it. The dicta could be the judge sharing a cake recipe or a thoughtful treatise dissecting the majority’s opinion, it’s still not controlling law. I don’t think we’re on a different page, just a little out of sync.
I’d also like to say though that Bob’s construction argument is against Federal tyranny is persuasive. While I stipulate that your proscribed methods to address differences between the states is valid it is not factually comprehensive. I submit that tyranny committed against a state by the Federal government sua sponte is perfectly valid reason from withdrawing from the Constitution (not as in the White case, but for example if the Fed responds to CA’s growing legalization movement by declaring martial law for the state). The state was hypothetically invaded for giving their public what they told them they wanted in republican and democratic manner. Surely this would count as hard tyranny. If the power to withdraw exists under no circumstance, then it is truly a death pact. The bulwark of republicanism has no teeth.
While your assertions based in White do reach an outcome for dispute resolution between the states would apply to most circumstances, I cannot say they would apply to all circumstances. As illustrated above, where is the line for drawn for oppressive acts of tyranny? If there is no line, no threshold, it becomes an empty standard. You must stay married to the psycho even if he’s killed and eaten the pets and is sizing you up for a sauce pan this instant. Hmmm. I don’t think so. If the Constitution isn’t a death pact, the ability to withdraw if provoked by force by the Federal or another state government must be maintained. There are provisions that States may respond if invaded. Art. I, sec. 10 says “No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Although war between the states is clearly addressed, there is nothing there that gives the Federal government the right to invade a state unchallenged. Tyranny, hard tyranny not the oft debatable soft tyranny, seems like a situation that doesn’t factually fit White. The function of republicanism is revealed not only as a protection of the people from their state government, but as a protection for the states from the potential abuses of the Fed. If the Founders hadn’t wanted a republican form, they could have chosen differently.
Vince before I go and ride off into the sunset….tell me how many other states were annexed? You alluded to the fact that there were more……
“Judicial Power”
In order to make judicial review part of this “Judicial Power” we must first ignore the Separation of Powers Doctrine.
Does the U.S. Constitution explicitly permit judicial power to be exercised by another branch? We only need to look at impeachment to see that it does.
So where is this explicit permission for the Judicial Branch to exercise the Legislative Power to create or repeal law? I see nothing in the text of the Constitution that would permit such. Further, if such power existed in the text of the Constitution itself, wouldn’t it be redundant for Congress to grant such power via statute?
Where is this discussion of judicial review at the state conventions? I can only find the mention of judicial review at one state convention (Connecticut).
Vince Treacy 1, September 27, 2010 at 6:22 am
AY, say what?
The last two post from AY seem to be incoherent and incomprehensible. Let AY study the Constitution and the Court decisions, remembering that a question of constitutional law is not the same as a ” Contractual dispute as it relates to Real Property.”
I am out of this particular exchange.
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Texas is an Intent State: How is that incoherent and incomprehensible? Only if you don’t have a clue about what you are talking about. It appears you don’t.
Wouldn’t you say that laws are basically contract and acts of the legislature are contracts…..
Texas agreed to be allowed to be annexed based upon certain promises…..They have been breached….
You don’t have a clue and you can’t admit it….but this is from a person that finds JAP offensive…..
Mespo, what’s the point? The protest is reasonable.
If not, then please explain what this means: “And how could Article IV apply to the states if not the guarantor itself analytically?”
Or: “But this is not a trick…so if that was null and void…da de da de da…..then its takes you back to the original agreement…wouldn’t you agree and since one part of the basis of agreeing to join the Union was because of slavery and other related and material sections…”
“Tis deeply sworn.
Sweet, leave me here awhile;
My spirits grow dull, and fain I would beguile
The tedious day with sleep.
Sleeps.
Player Queen Sleep rock thy brain, 225
And never come mischance between us twain!
Exit.
HAMLET Madam, how like you this play?
QUEEN GERTRUDE The lady protests too much, methinks.
HAMLET O, but she’ll keep her word.
KING CLAUDIUS Have you heard the argument? Is there no offence in ‘t? 230
Vince Treacy:
Hamlet Act 3, scene 2, 222–230
More from Texas v. White, this time on the Insurrection Clause and the Republican Form of Government Clause:
“All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended. The government and the citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequences of rebellion.
“These new relations imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re- establishing the broken relations of the State with the Union. The first of these duties having been performed, the next necessarily engaged the attention of the National government.
“The authority for the performance of the first had been found in the power to suppress insurrection and carry on war; for the performance of the second, authority was derived from the obligation of the United States to guarantee to every State in the Union a republican form of government. The latter, indeed, in the case of a rebellion which involves the government of a State, and for the time excludes the National authority from its limits, seems to be a necessary complement to the former.”
74 U.S. at 727-78.
Bob, Esq., said “Silly me.”
Got that one right.
Still waiting for his explanation of “equal footing” to AY.
As for his other question, since is nothing to apologize for, there will be no apology, even if it were possible to apologize an anonymous poster who uses a pseudonym, but has the gall, while hiding behind a fictitious name, to call someone else a coward, and cannot seem to resist a puerile, juvenile schoolyard taunt in nearly every posting.
I am ending this exchange with Squire Bob before it explodes like the 9-11 truther thread over at 120 Percent.
Vince said that Bob, Esq., “seems to argue (it is hard to tell) that there is no judicial review under the Constitution”
Bob responded: “Did I say all that? No, that’s you inserting your own premises into my argument and reducing them to absurdity; a cowardly tactic indeed.”
Well, did Bob say it or not?
Here is what he said back in 2009:
“Article III did not give the Supreme Court any textual power of Judicial Review. Furthermore, Article III did not give the Supreme Court the power to revise or expand its own power to include Judicial Review without a Constitutional Amendment.”
http://jonathanturley.org/2009/03/04/dcs-speed-bump-the-constitution/#comment-42307
That sounds a lot like “no judicial review under the Constitution” to me. But “Judicial power ” is in the text. It extends to “all Cases” arising under the “law of the United States.” That says that the judicial branch can rule on cases that arise under the laws of the U.S. So I am not inserting any “premises” into his argument, just using his own words.
Now, it is incredible to me that anyone could assert that Article III did not give the Court any “textual power,” whatever that may be, of judicial review. Once again, let’s go to the text:
Article III : “Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. …
“Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
So that looks like textual power to me. Bob may be confusing judicial review with judicial supremacy, and may be arguing that the courts may review legislation but not hold it unconstitutional. This is inconsistent with the Supremacy Clause, but it may be his position. He often corrects his mistakes by saying that he meant to include the “patently obvious.”
But the fact remains that I said that he “seems to argue (it is hard to tell) that there is no judicial review under the Constitution,” mainly because HE ARGUED that “Article III did not give the Supreme Court any textual power of Judicial Review.” If he wants me to stop quoting him to that effect, he should stop saying it.
So, “silly” Bob says something.
When called on it, he denies saying it.
With intemperate accusations.
It has happened before, and will happen again.