Interesting choice of words from a guy who considers Farber the ultimate arbiter of all matters constitutional in wartime and who recently posted several passages from a left wing Southern Poverty Law Center-funded slavery reparationist to malign Chief Justice Taney.
Also free of any substance. Farber is full of metaphysical non-substance. For Farber, sovereignty "seems to function as an almost metaphysical concept -- some secret essence of legal potency that cannot be detected directly, but only as a kind of normative aura." In Farberitaville, you can only find sovereignty by having Ms. Cleo channel it.
FARBER'S WISDOM
In the American context, sovereignty often seems to function as an almost metaphysical concept -- some secret essence of legal potency that cannot be detected directly, but only as a kind of normative aura. One hotly debated question, for example, is whether the populations of the various states existed (or still exist) as separate entities acting together as a conglomeration, or rather as a single entity acting through the agency of multiple subgroups. This is reminiscent of medieval disputes about the nature of the Trinity. It is not in any real sense a question of fact or even one of law.This is not to say that the concept of sovereignty is completely vacuous. In international law, it makes perfect sense to say that China is a sovereign nation and that California is not. In the law of federal jurisdiction, it is clear that Wyoming has sovereign immunity from suit in federal court under the Eleventh Amendment and that New York City does not. Thus, American states are "sovereign" governments for some purposes but not for others. The federal government is clearly sovereign in some respects, most obviously in foreign relations, but it lacks unlimited power within its own territory, since states do have some independent powers and rights of their own. As we will see, when we turn to the historical record and ask what people in 1776 or 1787 thought about sovereignty, the answers are equally ambiguous. In the end, there is no clear historical answer to the precise locus of American sovereignty.
SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 29
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Ideas about sovereignty may also color the understanding of particular constitutional issues. Thus, while it may not be useful to ask who really had sovereignty in 1776 or 1789, it is potentially useful to ask who was believed to have sovereignty then.
SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 30
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The differences between these theories are somewhat subtle and can easily be misunderstood, in part because of the confusing vocabulary of the debate. One source of confusion involves the term state. The claim that the United States is a confederacy of sovereign states sounds as if the Constitution is an agreement between state governments, just as an international treaty is between national governments. But this was not Calhoun's claim (or Justice Thomas's, for that matter). The Framers of the Constitution went to some trouble to insure that the Constitution would derive its authority directly from the people, rather than from the state governments. This was the reason for requiring it to be ratified in state conventions rather than by state legislatures. So in this setting, the term state refers to the state's populace, not to its government. It is easy to confuse this point, and states' rights advocates have been known to take advantage of the confusion to further the claims of state governments.Thus, the key issue is how to characterize "We the People of the United States" -- as fifty state peoples tied together in one Union or one American people divided among fifty states. This is a rather elusive distinction, which is further obscured by another terminological problem. The term compact is used by all of the theories but in different ways. A contract between the peoples of the separate states might well be termed a compact. The critical question was whether a national social compact arose at some point, binding all Americans together into one people, or whether the only real social compacts were at the state level, with those political societies then forming a second-level compact. The "compact theory" of sovereignty refers to this second-level compact, which is considered to have a less fundamental status than the social compacts establishing each state. If this all seems rather aridly metaphysical, that's because it is.
SOURCE: Lincoln's Constitution, Daniel Farber, 2003, p. 32
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I have cited many, many authors, historians, law professors, and jurists in support of my views. I find Farber's arguments to be quite fair and balanced (unlike the tripe upon which this thread is based).
I admit, quoting Prof. Paul Finkelman was difficult, but it did illustrate that even the lefties recognize Taney for the schmuck he was. How do you reconcile that Finkelman on the left, and Jaffa on the right, share the same lack of regard for Taney's pro-southern judicial activism?