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as unpredictable an oracle as the Pythia at ancient Delphi.
    Not coincidentally, the various contentious issues roiling the American
political waters today-flag burning, abortion, state government recognition of religion (say through public prayer), and homosexual marriageare not among those the federal courts were given power to decide by the
federal Constitution written in Philadelphia. Had the Hamilton-Madison
axis had its way, the federal courts' purview would have been greater. But
the point is that the Hamilton-Madison axis did not prevail, and the Constitution the people ultimately ratified gives the federal courts no scope to
interfere in or rule on these issues. Nor did the Federalists, when they
advocated ratifying the Constitution, pretend otherwise.
    This might surprise those "educated" in modern "constitutional law."
But it should not surprise anyone familiar with the factors leading to the American Revolution. After all, the people who advocated, in the 1760s
and 1770s, a national authority to bind the states "in all cases whatsoever" were called Tories or monarchists, and they lost.

    The Patriots, on the other hand, had argued for home rule, for the right
of the individual states to govern themselves through their elected representatives. They had won the Revolution. And then they won in Philadelphia. But, alas, the fight was not over.

     

Chapter Three

SELLING THE CONSTITUTION
    he arguments that were made for ratifying the Constitution are
yet another subject most law students aren't taught. But these
arguments are vital to the so-called original understanding-the
real meaning-of the Constitution.
    By law, Congress had to send any amendment to the Articles of Confederation to the states to be ratified. So even though the Philadelphia
Convention was proposing more than an amendment, it sent the proposed new constitution to Congress, which forwarded it to the states for
their consideration.
A rocky road
    Even before the Philadelphia Convention ended, many delegates returned
to their states to organize opposition to the proposed constitution. They
were bolstered when three prominent delegates, who had stayed to the
end of the Convention on September 17, 1787, refused to sign the Convention's final product: the unamended Constitution.
    Among these non-signers was Virginia's governor, Edmund Randolph,
who had presented the Virginia Plan at the beginning of the Convention.
Randolph had many criticisms of the new Constitution, including that
Congress's powers were not well enough defined, that the boundary between state and federal authority was not clearly demarcated, that the
federal courts' jurisdiction had not been sufficiently circumscribed, and
that there was no bill of rights in the Constitution guarding traditional
rights of Englishmen against federal infringement. (Many states had their
own bills of rights.)

    Guess what?
    -.' Virginia's state
constitution of
1776 was the
first American
constitution (and
the first written
constitution adopted
by the people's
representatives in
the history of the
world).
    -sW There was nothing
in the Declaration
of Independence,
the Articles of
Confederation, or
the ratification
process of the
federal Constitution
that created a
national (rather
than a federal)
government.

    Randolph's fellow Virginia delegate George Mason also refused to sign
the Constitution, and for similar reasons. Mason had argued that the Constitution should ban the importation of slaves immediately and that a
congressional super-majority should be required for passage of any tariff
law; otherwise, he said, the northern majority in Congress would abuse
the South to favor the North's interests-as it had tried to do in changing
John Jay's negotiating instructions with Spain in 1786. A deal between
New England and Deep South delegates on these issues defeated Mason's
positions-to the everlasting detriment of the country.
    Of more concern to Mason,