FEDERALISM AND RECONSTRUCTION

Steve has a thoughtful reply to my post criticizing his omission of Reconstruction in his essay on the "original understanding." After Reconstruction, the "original understanding" of the 1787 Constitution is only relevant in an attenuated sense; you have to look back at 1787 through Reconstruction, in much the same way that you look at newer provisions before older ones in a state constitution if you can't avoid a conflict between them. A lot depends on the level of abstraction that you use in attempting to avoid the conflict, of course, but the substantive choices here should at least be articulated. The basic point is that whatever theory one might have about the views of the 1787 framers concerning the national government existing "at the pleasure of the States and 'We the People,'" as Steve puts it, those views died during Reconstruction, in my view. As Justice Bradley argues in his concurrence in Knox v. Lee (1870):

The doctrine so long contended for that the Federal Union was a mere compact of States, and that the States, if they chose, might annul or disregard the acts of the National legislature, or might secede from the Union at their pleasure, and that the General government had no power to coerce them into submission to the Constitution, should be regarded as definitely and forever overthrown. This has been finally effected by the National power, as it had often been before, by overwhelming argument.

State sovereignty lost a lot in the Civil War; I think it lost almost everything, but we can quibble on the precise lines to draw, of course. Whether or not incorporation works through the due process clause is a side issue created by the Court's unfortunate backing away from the national power that was established during the Civil War and Reconstruction. The central issue shouldn't be whether or not current incorporation arguments work; the central issue should be what the point of the Reconstruction amendments was at all if the states are not severely constrained by them with respect to what they can do in the name of exercising their sovereign powers over citizens and residents. (Thus, contra Steve, respectfully, whether or not the privileges and immunities clause can do the work of incorporation is not "entirely a separate question" except in the most narrow jurisprudential sense.) The Supreme Court wasn't alone in backing away from Reconstruction. It's tough to be an occupying power, and northerners got sick of the task of building liberal democracy in the south -- a task that took a while, as George Will pointed out on This Week on November 9 ("Does anyone remember how long it took us to change the regime meaning the values as well as the laws of Mississippi?").

As Steve guesses, I don't like the Court's current federalism jurisprudence. It's insufficiently attentive to the Reconstruction amendments and the Civil War. One of the jurisprudential preconditions for this inattention, broadly speaking, is the death of the privileges and immunities clause and the judicial resistance to Reconstruction from which that collapse sprang, in part. I'm not saying that the precise arguments on 11th A and 13th-14th-15th A's line up; I'm saying that the spirit of the current court's approach to the states -- and to congress -- is out of touch with what I take to be the spirit of the Reconstruction amendments.

MORE: Steve replies in an update to his original post. The looming question for me is why being an originalist doesn't require at least a mutual adjustment among the (imagined or ascertained, take your pick) views of all of the folks who seem to have had some part in contributing to the text. My sense is that people who view themselves as originalists generally care more about the Federalist Papers than they do about the records of the 38th and 39th Congress, but I can't see the reason for that preference.

NOTE: I corrected some spelling mistakes in the original post, some of which made their way to Steve's post as well. Sorry!