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CONSTITUTION AS COUNTERMONUMENT: FEDERALISM, RECONSTRUCTION, AND THE PROBLEM OF COLLECTIVE MEMORY
Norman W. Spaulding* In this Article, ProfessorSpaulding reorients criticism of the Rehnquist Court'sfederalismjurisprudenceas it has emerged in decisions limiting congressional prerogatives under Article I and Section 5 of the Fourteenth Amendment. He argues that the Rehnquist Court's recent revival of robust antebellumfederalism principlesturns on a "chillingly amnesic" suppression of the structural significance of the Civil War and Reconstruction Amendments. In Professor Spaulding's view, the conditionsfor saving and restoring the Union after the Civil War are just as relevant to reasoningabout state sovereignty as the conditionsfor entering the Union at the Founding. The Rehnquist Court avoids the deep implications of Reconstructionfor federalism only by relying on what ProfessorSpaulding terms "monumentalist" historical consciousness-a technique of historical and doctrinal analysis that simultaneously exalts certainfirst principles offederalism established at the Foundingwhile systematically diminishing the plain exertion of national power over the states during the Civil War and Reconstruction. ProfessorSpaulding argues that we can begin to recover the significance of the War and Reconstructionfor federalism principles through the method of countermemory-a form of historical consciousness that seeks to reveal both the perverse desire animatingmonumentalist memory work and the inconvenientfacts it is so prone to forget. Viewing the Reconstruction Amendments as "countermonuments," Professor Spaulding contends, means reading them as written against the very robust antebellum principles the Court now seeks to revive. However radical this approachtoward interpretationof the Reconstruction Amendments may seem, Professor Spaulding argues that it is nevertheless consistent with the Rehnquist Court's insistence that history and constitutional structurematter as much, if not more, than strict textualism in interpretingfederalism principles.
TABLE OF CONTENTS EXO RDIUM ......................................................
1993 1998 2003 2005
COLLECTIVE MEMORY, NATIONAL IDENTITY, AND CONSTITUTIONAL INTERPRETATION .............................
THE METHOD OF COUNTERMEMORY ...........................
REMEMBERING/FORGETTING RECONSTRUCTION ...............
* Acting Professor of Law, University of California, School of Law (Boalt Hall). J.D., Stanford Law School, 1997; B.A., Williams College, 1993. I owe a special debt of gratitude to Laurent Mayali for creating rich opportunities to share early versions of this Article with a group of international scholars who both embraced and challenged its method and thesis. I also want to thank my colleagues here at Boalt Hall, as well as Sanford Levinson, judge William A. Fletcher, and Trevor Morrison, for invaluable comments and careful criticism. I dedicate this work to my grandfather, Norman W. Spaulding, Sr., and to Judge Thelton E. Henderson, for passing on the lessons of black historical consciousness.
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CONSTITUTION AS COUNTERMONUMENT
A. Revivalist Federalism ................................. 2006 B. Monumentalist Memory Work: Assuring the Survival of Antebellum Federalism Principles .................... 2014 IV. CONSTITUTION AS COUNTERMONUMENT .................... 2024 A. Marshall's Theory of Constitutional Demise: A Revealing Reversal? .................................. 2024 B. W anting Closure ..................................... 2030 C. Reassuring Omissions ................................ 2036 1. The Fact of Secession ............................ 2037 2. Ratification by Force ............................. 2042 3. The Original Thirteenth Amendment ............ 2046 CONCLUSION . .................................................... 2048
"How does one remember an absence?"' To remember that something is missing, after all, is different from recalling the thing itself, an act that negates the absence. Memory surely consoles when it negates, but the consolation comes at the price of forgetting, a subversion of memory itself. To remember an absence is to resist this subversion and the desire for consolation from which it comes. To remember, then, is not simply, or at least not always, to restore. In Kassel, Germany, there was once a large pyramidal fountain with a reflecting pool in the main square in front of City Hall. The fountain was the gift of a local Jewish entrepreneur, Sigmund Aschrott, and bore his name. On the night of April 8, 1939, Nazi activists demolished it and city workers carted away the rubble in the following days. By 1942, more than 3,400 Kassel Jews were also removed-sent by train to Riga and murdered. A year later, James Young reports, "the city filled the fountain's basin with soil and planted it over in flowers; local burghers then dubbed 2 it 'Aschrott's Grave.'" After the War, memories faded. Most could not remember the original fountain and "only a few oldtimers could recall that its name had ever been Aschrott's anything. When asked what had happened to the original fountain, they replied that, to the best of their recollection, it had 3 been destroyed by English bombers during the war."1 To prevent the fountain from being forgotten entirely, the city's Society for the Rescue of Historical Monuments "proposed in 1984 that some form of the fountain and its history be restored-and that it recall all the founders of Kassel, especially Sigmund Aschrott." 4 But for Horst Hoheisel, the local artist awarded the project, the fountain could not simply be rebuilt in situ.
1. James E. Young, The Texture of Memory: Holocaust Memorials and Meaning 45 (1993). 2. Id. at 43. 3. Id. 4. Id.
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To avoid the "generic liabilities of monuments. "mirror-like. "It is only history turned into a pedestal. Id.8 "As we enter the square. Id. 7. Id. our thoughts rooted in the rushing fountain beneath our feet. inverted. Only the sound of gushing water suggests the depth of an otherwise invisible memorial. Rev. In order "to rescue the history of this place as a wound and as an open question." so that its base sits at ground level in the square and its tip juts twelve meters into the ground. an invitation to passersby who stand upon it to search for the memorial in their own heads. "water fills narrow canals at our feet before rushing into a great underground hollow. 11." 6 Hoheisel proposed and built a "negative form" monument-a hollow concrete replica of the original fountain. 8. at 46. become the memorial: [A]s the only standing figures on this flat square.1994 COLUMBIA LAW REVIEW [Vol. 1994 2003 . 103:1992 "[A] reconstructed fountain. we realize that we have become the memorial.103 Colum. announcing the absence of the original fountain through the dislocated sound of rushing water and pressing the city's ugly. but the tablet is not the primary site of memory. an inverted palimpsest that demands the visitor's reflection." he insisted. something less. at 45. For only there is the memorial to be found. Id. 10." 9 In the square a bronze tablet describes the loss of the original fountain. at 45. but its absence and the circumstances surrounding its removal required something more. Id. Young and Hoheisel insist. "subterranean history" to consciousness. L." Hoheisel says. See id. the negative-form monument shifts the burden of memory directly to its visitors. with "thick glass windows" at the center and an iron grate around the borders through which water cascades to the tip below." artists like Hoheisel are using the 5. 9." Young describes. 12. 6. HeinOnline -. as it happened.""I Hoheisel's negative-form monument thus remembers an absence "by re12 in producing it" "precisely duplicated negative space. Id. "would only encourage the public to forget what had happened to the original. Visitors. which grows louder and louder until finally we stand over the Aschrott-Brunnen."' Instead. or." Many public spaces in Germany now bear the markings of a self-conscious effort to confront the nation's tragic past on terms that resist the desire to forget and the consolation selective memory brings. Id. to penetrate the consciousness of the Kassel citizens so that such things never happen again. "The sunken fountain is not the memorial at all. '5 Remembering not just the fountain. 7 The surface of the square now conforms to the outline of the fountain's base.
103 Colum."15 The result is a disappearing monument: a "twelve-meter-high. In doing so. they immediately recognized the contradiction of using traditional monumental forms." 14 So they sought to design "a monument against itself: against the traditionally didactic function of monuments. Summer 1987. 105-07. 30 (quoting inscription near monument's base)."' leaving the "burden of memory" to its visitors alone. "The more actively visitors participate.2003] CONSTITUTION AS COUNTERMONUMENT 1995 techniques of "Gegen-Denkmal (countermonument). plated with a thin layer of soft. see also Michael Gibson. Id. and the site of the Harburg monument against fascism will be empty. Id. In the end. it will gradually be lowered into the ground. HeinOnline -. at 28. at 28. at 30. 16 The artists not only refused the city's proffered "sun-dappled park setting" in favor of the blue collar immigrant district of Harburg ("a somewhat dingy suburb of Hamburg . is an appropriate tool for recalling the Holocaust without. 14." which sinks into the ground at one-and-a-half-meter increments as citizens and visitors score the lead with a steel-pointed stylus. 17 it is only we ourselves who can rise up against injustice. against their tendency to displace the past they would have us contemplate-and finally. 19. at 28." 3 Thus when Jochen and Esther Gerz were invited by the city of Hamburg to create a "Monument Against Fascism. onemeter-square pillar. Id. L. reducing it to a simple past: How better to remember forever a vanished people than by the perpetually unfinished. 17. War and Violence" in the mid-1980s. we commit ourselves to remain vigilant.. . the Gerzes plan to cover the top surface of the monument with "a burial stone inscribed to 'Harburg's Monument against Fascism. in the very act of remembering. As Young notes. against the authoritarian propensity in all art that reduces viewers to passive spectators. the sooner the monument will disappear. their demagogical rigidity.. dark lead. Rev. Art News. Hamburg: Sinking Feelings." 18 Once completely gone. One day it will have disappeared completely." Young insists.. just beyond a dioxin dump"). Young. the didactic logic of monuments. ever-vanishing monument? As if in mocking homage to national forebears who planned the Holocaust as a self-consuming set of events-that is. the faster they cover each section with their names. As more and more names cover this 12 meter tall lead column. Id. 19 A "self-abnegating monument. "To their minds. and visitors to the town. intended to de13. at 105. 15. 18. recalled too closely traits they associated with fascism itself. . 16. supra note 1. made of hollow aluminum. Id. 1995 2003 . to add their names here to ours. Id. they explicitly invited desecration of the monument: We invite the citizens of Harburg.
"As a social mirror. Hundreds of foreign and Jewish women were brought to the site for forced labor. 1 2° permanence. which in turn flicks on a high-intensity slide projection of a written text relating the historical details of the site's now invisible past. 23.. caricatures. some citizens even complained that the monument was simply "a trap for graffiti. 103:1992 stroy all traces of itself." 2. up the wire fencing surrounding the sports field. people did more than simply sign the monument and solemnly gather to observe its gradual disappearance. During World War II. "the site alone cannot remember" since all vestiges of the labor camp are gone. Id. Id. by ducking or 20.Thus the Gerzes intended it from the start "to torment . "pedestrians strolling along the Sonnenallee. at 34.. '27 Even the act of avoiding the light trigger. . As the self-destroying sculpture ofJean Tinguely and others challenged the very notion of sculpture. at 34. trip a light-beam trigger. Id. present German "antipathy toward more recent national 'guests"'). contrary to the logic of traditional monuments (permanence. love notes." marking." A similar purpose can be seen in Norbert Radermacher's "conceptual memorial" in the Neuk6lln district of Berlin at "the former site of a forced labor camp and one of Sachsenhausen's satellite camps. Rev. and into the trees. 22. "They ought to blow it up. but also the urge to strike back at such memory. Names were scratched out and superimposed on others. the vanishing monument similarly challenges the idea of monumentality and its implied corollary. as Young notes.1996 COLUMBIA LAW REVIEW [Vol. intrudes itself into the pedestrians' thoughts. at 37 ("Foreigners. next to the sportsground (former site of the KZ-Aussenlager [satellite concentration camp]). at 41. 26. but the light projection memorial "catches visitors unaware .103 Colum.. even worse. 27. Id. 21. at 35." Id. See id. Some escaped later in the War after being moved to the Ravensbrftck concentration camp. at 28. their project embraced these breaches in commemorative ritual. at 40. [the countermonument] becomes doubly troubling in that it reminds the community of what happened then and. L. the German branch of the American firm National Cash Register Company bought the property and btilt a factory and barracks for slave laborers." 2 But the Gerzes maintained that.not only the Germans' secret desire that all these monuments just hurry up and disappear. Of course. 1996 2003 . at 42. across the field. to sever it from the national body like 24 a wounded limb. get out. 24. 25. the ' inscription "Ausldnder raus. HeinOnline -. singular meaning)."'26 The text stretches from the sidewalk. Id."2 5 In his design. As Radermacher emphasizes. Id."2 1 and swastikas "inevitably" appeared.. all memory of its victims-the Gerzes have designed a self-consuming memorial that leaves behind only the rememberer and the memory of a memorial. inviolability. at 35. Id. 31. how they now respond to the memory of this past..[to] objectify] . Id. One local shopkeeper said.
33 Hence the "state-sponsored monument's traditional function as self-aggrandizing locus for national 34 memory." when the very purpose of such a landscape is to sustain faith in the national project. Spring 1989. in martyrological refrain. Rev. to celebrate its successes and the inviolability of its core values. 22. requires remembering the presence of the projected memorial. 34. 30. Id."). especially when those misdeeds rise to the level of mass historical injustices. we would have to remember what it is we want to forget. So in a kind of "reversed ventriloquism. at 21. See id. 1997 2003 . self-reflective." as Benedict Anderson claims. HeinOnline -. at 34. Young. heterogeneous nation-states) requires sophisticated mnemonic technique-a complex interplay of memory and forgetting. and recalls the martyrdom of those who gave their lives in the struggle for national existence-who. and emotional charge to national identity. ed. at 21. 1991). '29 There is.2003] CONSTITUTION AS COUNTERMONUMENT 1997 walking on the other side of the street. we might ask with Young. we would first have to conjure the memory to be avoided: that is. at 20. as Young observes. of triumphs over barbarism. Representations. 640 (1996) ("Vietnamese war monuments and memorials were not conceived as counterparts to anything in the United States but as the nation's commemorations of its dead. Public commemoration goes. Id."). an "essential '30 paradox in any people's attempt to commemorate its own misdeeds. And hence the paradox in a nation building monuments to its own misdeeds.5 "How does a 28. How. 29. Id. nations have "learned to speak 'for' dead people"-to fashion from their deaths affirming narratives that lend coherence. most commonly. trajectory. supra note 1. Even if "the victors of history have long erected monuments to their triumphs and victims have built memorials to their martyrdom. even paralyzing preoccupation. See generally Pierre Nora. Id. at 2 ("The matrix of a nation's monuments emplots the story of ennobling events. 22 Critical Inquiry 634. Benedict Anderson. see also James Tatum. L. "to avoid the memorial here. "does a state incorporate its crimes against others into its national memorial landscape. "Holocaust memorial-work in Germany today remains a tortured." 31 Sustaining public faith in the sacred commitments of any political community (but especially large. 33. Id. only rarely does a nation call upon itself to remember the victims of crimes it has perpetrated. to those heroic founding and saving actors whose profound sacrifices 32 (when framed and recalled as such) mark a people's history as a people. even its divine election"?. 31. died so that a country might live. Between Memory and History: Les Lieux de Mgmoire. "to affirm the righteousness of [its] birth. as well as its celebration of victory in a war for independence. Memorials of the American War in Vietnam.103 Colum. at 2. 32." 28 Notwithstanding (or perhaps because of) the proliferation of these and other countermonuments on the German landscape. 35. As Young puts it. at 7. Imagined Communities: Reflections on the Origin and Spread of Nationalism 198 (rev.
supra note 37. the litany of its misdeeds. a matter for local historical societies and memorial commissions to debate with the artists who serve them. making them part of its reason for being? Under what memorial aegis. Stable and coherent national narratives do not simply provide emotional legitimacy. Anderson argues.1998 COLUMBIA LAW REVIEW [Vol. Hist. Nomos and Narrative. See id. 10. 40. Univ. is the collective memory of any nation "plastic"' 4" enough for the historical consciousness from which countermonuments spring? I. Anderson. the limit beyond which the past must be forgotten if it is not to become the gravedigger of the present. a people or a culture is.103 Colum.. Rev. Id. 135. much less commemorate. if "a society's institutions are automatically geared toward creating a shared memory-or at least the illusion of it" 3 8-don't countermonuments represent a dangerous "excess of history. and the Politics of Memory. AND CONSTITUTIONAL INTERPRETATION These questions are not merely aesthetic. 80J.. at 4. that project includes the integration of heterogeneous and geographically dispersed populations into a functional unit of sovereignty. of Chicago Press 1992) (1952). 1980) (1874). be it a man..""" without succumbing to what Nietzsche called "a consuming historical fever"?3 7 Indeed. Coser ed. A compelling "narrative of 'identity"' and compelling symbols of that narrative are imperative. of historicalsense which injures every living thing and finally destroys it. at 6-7. Scott A. Nietzsche. supra note 1." and the mobilization of distinct individuals for sacrifices necessary to meet national objectives. 103:1992 state recite. 39. 205. Minimally. 97 Harv. 4.13 9 an assault on the consolation and inspiration that shared memory is designed to foster? Can any society long survive repeated institutionalized commemoration of its greatest failures. where sovereign power operates on the principles of consent. A Marble House Divided: The Lincoln Memorial. 42. does a nation remember its own barbarity." Id. 1998 2003 . one would have to know precisely how great the plastic power of a man.. a degree of insomnia. 38. the Civil Rights Movement. 4 (1983) ("No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. though. On the Advantage and Disadvantage of History for Life 8 (Peter Preuss trans."). at 7. NATIONAL IDENTITY. Nietzsche warns. public accountability. a people or a culture. Nietzsche. & trans. See generally Maurice Halbwachs. L. 136 (1993) HeinOnline -. 4 1 I would go further than Anderson. its deepest perversions of its core values? In short. at 22. national narratives also confer political legitimacy-they define the discursive space for the negotiation and justification of political power by regu42 lating the collective memory of a nation's fundamental commitments. of rumination. Rev. COLLECTIVE MEMORY. supra note 33. There is. what Anderson calls an "imagined community. to the process of collective imagination that generates "emotional legitimacy" for the national project. See Robert M. supra note 37. and constitutional restraint. Cover. at 11. Young. An. "a degree of doing history and an estimation of it which brings with it a withering and a degenerating of life . 37. Sandage. In modern liberal democracies. 41. 1939-1963. On Collective Memory (Lewis A. Friedrich Nietzsche.. Hackett Publ'g Co."). 36. at 10 ("To determine .. whose rules. at 6. L.
"The powers of the legislature are defined. at 779. 777 (2001) (citations omitted). 121. 1999 2003 . As Chief Justice Marshall famously declared in Marbury v. Democracy in America 276 (Phillips Bradley ed. It is emphatically the province and duty of the judicial department to say what the law is. James Booth insists." labor mightily to ensure that the evil they remember. are mnemonic institutions par excellence.James Booth. 95 Am. keeps it among the unforgotten. after the 44 time-honored Anglo-American technique. justice "is in one of its key dimensions the memory of evil past": The Furies. 46. 176-77 (1803) (emphasis added). the memory of miasma or guilt-pollution. HeinOnline -. Sci. the constitution is written . deployed. the Furies are the handmaidens of justice. and that those limits may not be mistaken. Memory seizes the crime. Rev. who "hold the memory of evil. ensuring that the passage of time does not overwhelm 45 the work of justice. 45.. and contested not simply on commemorative days and through public monuments and rituals. As Alfred Kelly has noted. Id. does not pass into oblivion. for instance.S. and limited. 1965 Sup. justice in common law regimes is structurally embedded in an economy of memory. This is obvious with respect to constitutional adjudication. Alfred H. has deep legal and political salience. Ct. The Unforgotten: Memories ofJustice. Clio and the Court: An Illicit Love Affair. It is arranged.. it plays the role of historian. and insists on '46 retribution. 43.. Vintage Classics 1990) (1835) (describing American legal profession's deep commitment to past through precedent). A trial. 44. quite apart from the question of fidelity to founding instruments. Even more fundamentally. What follows. see also I Alexis de Tocqueville. Courts. if we ask not how to remember or represent the absence ofjustice in public space. and Young's provocative questions about the capacity to remember national misdeeds take on added urgency when applied to adjudication. (1 Cranch) 137. Daughters of the Night.20031 CONS77TUTION AS COUNTERMONUMENT 1999 Collective memory. but in and through the institutions of state power. "When a court ascertains the nature of the law to be applied to a case through an examination of a stream of judicial precedent. see also id. Kelly. Rev. 777. All institutional actors take oaths of allegiance in one form or another. L. or forgotten. but in the construction and interpreta(recounting civil rights movement's strategic appropriation of Lincoln's memory and monument). "is an assertion of the power of memory-justice. at 786.103 Colum.. Rev. Pol. 119. In their undying search for those tainted by guilt (the polluted). then. They are its memory. Madison. For all their formal insulation from the demands of popular consciousness. 5 U. on this register. but courts are specially charged with remembering and enforcing prior commitments against the public and private demands of the present. it is primarily the courts that bear the explicit institutional burden of collective memory." 43 But. W. in sum.
to be blunt) in their ratification and by the spectacular failure of democracy against which they were written. with all its didactic. injustices opaquely but deliberately inscribed in the founding instrument itself. Chattel slavery flatly contradicts the most basic principles of liberal democratic government. 1835-1875. liberal constitutions do not merely enshrine abstract principles of justice. Even if the original text of the Constitution was written against the perceived defects of the Articles of Confederation and the abuses of colonial domination.103 Colum.. Wiecek. at 89-90 (1982) (listing slavery compromise provisions of Constitution of 1787). ' 48 And democracy was. injustices that are unavoidably American-inseverable from the national body. See Harold M. these questions have special relevance to the work of interpreting the Reconstruction Amendments. collective consciousness of these evils (even if falling well short of collective consensus) tends to enhance the legitimacy of the Constitution. 47. 103:1992 tion of sacred national texts? If we take countermonuments to signify a specific form of historical consciousness-a method of memory (or "countermemory. "to the moral heart of the American social drama. Equal Justice Under Law: Constitutional Development. Ralph Ellison. See Reva Siegel's revealing analysis in Reva B. by contrast. It cuts. Rev.. Hyman & William M. mark injustices that cannot be disowned. Far from diminishing the authority of the founding instrument. I believe. they also memorialize particular histories of injustice. as Ralph Ellison has written. Moreover. Forgiving and Forgetting: Lincoln and the Politics of National Recovery. the Nineteenth Amendment is perhaps another candidate for the method of countermemory. Chattel slavery and segregation are historical injustices of a magnitude not unlike the crimes responsible for the problem of memory Germany now confronts. 1999) (1995). 1995). 103 (John F. 2000 2003 ." as I shall suggest)-is that method consistent with the interpretive work of judging? Can a constitution be written or read against itsel]? Or is constitutional law accessible only in monumental form. reprinted in Human Rights in Political Transitions: Gettysburg to Bosnia 135." so "[i)n the aftermath of evil. Collective Memory and the Nineteenth HeinOnline -. 48. L. and amnesic liabilities? In the American context. in The Collected Essays of Ralph Ellison 100. They therefore foist unique problems of memory onto the courts-problems quite distinct. 163-64 (Carla Hesse & Robert Post eds. the War and Amendments painfully remind us. The Reconstruction Amendments. Siegel.2000 COLUMBIA LAW REVIEW [Vol. The evils of a prior regime can be remembered (and disowned) as such: as the evils of another. inadequate to the task of eradicating it. demagogic. Change the Joke and Slip the Yoke. 47 And unlike other constitutional amendments. the problem of memory with respect to the Reconstruction Amendments is compounded by embarrassing defects (lawlessness. the Reconstruction Amendments represent self-conscious attempts to publicly address the fact of historical injustice through higher law-making. its clear and ambitious break with that past eases the work of memory." Robert Meister. "the meaning of rights depends on history. For similar reasons. As Robert Meister insists. from the interpretation of other parts of the Constitution. many of which contain equally Delphic language in response to perceived or potential injustices. Callahan ed.
" The Reconstruction Amendments are thus ripe for interpretation as countermonuments-monuments against the axioms that justified slavery (primarily. antedate not only the decisions of the current Court but the Reconstruction-era Court and the Reconstruction Amendments themselves. See infra Part II. Kearns eds. Thurgood Marshall.103 Colum.. 50 This is so. I argue that this temptation-what. See infra Part III. 179 (Austin Sarat & Thomas R. 49 With this alternative conceptual framework set out. infra note 174 and accompanying text. 53.20031 CONSTITUTION AS COUNTERMONUMENT2 2001 Thus the problem of memory with the Reconstruction Amendments differs from other questions of constitutional interpretation. in History. instead." Constitutional scholars have recoiled Amendment: Reasoning About "The Woman Question" in the Discourse of Sex Discrimination. 2001 2003 . L. In what follows. The effects of this mode of historical consciousness are readily apparent in the Rehnquist Court's Eleventh Amendment jurisprudence and its cramped view of congressional power under Section 5 of the Fourteenth Amendment and the Commerce Clause. I canvas cases reflecting the Court's new federalism jurisprudence and argue that the significance of the Reconstruction Amendments is systematically obscured by the Court's method of constitutional interpretation. Justice Marshall is not HeinOnline -. 152. 50. monuments that reproduce these principles "in precisely duplicated negative space. 49. The root causes. Federalism. Reva B. 'Just hurry up and disappear. at 34. states' rights and racism). '5 2 Justice Thurgood Marshall hinted at the radical implications of this mode of historical consciousness when he asserted that "[w] hile the Union survived the '53 civil war. Rev. see also supra note 24 and accompanying text. I suggest. See supra note 12 and accompanying text. the Constitution did not. L. supra note 1. 101 Harv. Rev. Rev. To trace this strange history will not require the revelation of new historical evidence. and the Family. Memory. however. 948. 115 Harv. I begin. 1. and the Law 131. 1022 (2002) (criticizing "[e]rasure of the Nineteenth Amendment from our collective memory and constitutional canon"). She the People: The Nineteenth Amendment. Commentary: Reflections on the Bicentennial of the United States Constitution. the primary and secondary sources are well recognized and long studied. by describing the historical consciousness of countermemory. Sex Equality. 51. we may call the logic or desire of monumental history-has dominated judicial interpretation of the Reconstruction Amendments. L. because the Court's method is tied (through precedent and analysis of legislative intent) to the desperate desire to forget that defined the terms of Reconstruction before it even began-a not-so-secret desire that the "Negro question. 1999) (explaining how Nineteenth Amendment "disappeared from legal and popular consciousness" and arguing that modern sex discrimination jurisprudence should be grounded in "a memory of constitutional wrongs"). Siegel. See Young. with Nietzsche." and the puzzles of federalism and separation of powers with which it was 51 inextricably intertwined. 4 (1987) (emphasis added). Memory here confronts the paradox Young identifies: the insatiable temptation for a nation to elide its grave misdeeds in the very act of remembrance. 52.
Slavery in the Canon of Constitutional Law. J. if they have not provided it. See Marshall.-Kent L. 2002 2003 . 38 Wake Forest L. and not just some parts. I think the inquiry worth making. Rev.2 (2d ed.. in view of the revivalism driving the current Court's federalism jurisprudence. Or so Justice Marshall and the Reconstruction Amendments themselves powerfully suggest. 553.-Kent L. has been categorically indisposed to think Marshall's thought. e. (Marshall's utterance. 68 Chi. however defined. That those processes were anything but smooth . it is worth noting.) And the inquiry may prove errant or untenable since countermemory may take us beyond the problem of memory presented by the Reconstruction Amendments only to present an even more paradoxical problem of authority for the interpretations it reveals. 1988). id. 54 and the Supreme Court. Id. we still shall have to ask whether his thought stands for a viable mode of constitutional interpretation.57 a speech. 58. I hope to 56 show that countermemory reveals its deep salience.. a mode of historical consciousnessjudges can ethically embrace. from nearly the start of the Union.. dissenting) HeinOnline -. more than the Framers provided for. 1104 (1993). J. and is designed to approach immortality as nearly as human institutions can approach it.2002 COLUMBIA LAW REVIEW [Vol. at 602 (Stevens. 1041 (1993)."). 57. Learning the Three "I's" of America's Slave Heritage. amended version of a text traceable to 1787-not in an unbroken line. 387 (1821). 19 U. Virginia: But a constitution is framed for ages to come. American Constitutional Law 10 n. See infra Part IV. that we owe our allegiance. 56.. and its framers must be unwise statesmen indeed." Chief Justice Marshall admitted in Cohens v. 1087. See. 1037. 560 (2003) [hereinafter Levinson. Rev.. 615 (1995) (Souter. Laurence H. 54.. We already may have entered a period of "radical" constitutional 8 5 interpretation. Tribe writes that Marshall's statement remains a radical overstatement . alone in insisting that the legacy of slavery matters deeply to constitutional interpretation. came from his Reflections on the Bicentennial of the United States Constitution. than chattel slavery. This treatise treats the Constitution as it stands in 1987 as the contemporary. in any event. 514 U. But the Civil War and Reconstruction were more than mere collisions-a perfect storm perhaps.. Rev. Rather than recoil from Marshall's thought. as far as its nature will permit. Lopez. 549.. 55. See Derrick Bell. but in a historically connected set of processes. 103:1992 in horror from this proposition. It is exposed to storms and tempests. L.S. Why I Do Not Teach Marbuiy (Except to Eastern Europeans) and Why You Shouldn't Either. to be sure. "[C]ollisions may take place. Tribe. not an opinion for the Court. See United States v. Sanford Levinson.g. supra note 53. Rev.) 264. does not require abandoning the view that it is to the entire Constitution.S. (6 Wheat. Its course cannot always be tranquil. 68 Chi. Sanford Levinson. Marbury] ("It is difficult to think of any single issue that is more important to American constitutionalism.103 Colum. dissenting) (warning that case could have "epochal" significance). But. Of course. with the means of self-preservation from the perils it may be 55 destined to encounter.
for instance. that in them the high points of humanity are linked throughout millennia. 6 1 It exposes and dismisses outright "those tendencies which encourage the consoling play of recognitions": 62 monumental history's faith "[t]hat the great moments in the struggle of individuals form a chain.. and critical history's misguided "attempt. 60. at 123. the dependence of collective memory on didactics and collective amnesia. we find that "any number of cherished memorial conventions" are simply "flout[ed]": [Their] aim is not to console but to provoke. Collective Memory and the Actual Past. supra note 1. Nietzsche. Representations. 1707. Spring 1989. Smith. THE METHOD OF COUNTERMEMORY 2003 Countermemory is defined by a principle of resistance. 385-89 (James D. 59. Robert Hurley et al. reprinted in 2 Essential Works: Aesthetics. at 380. trans.. supra note 59. 22. bright and great". Young. the Congressional Process. not to accept graciously64the burden of memory but to throw it back at the town's feet. Foucault. Id. pre-Depression version of substantive due process"). 61. if they "'coarsen' historical understanding as much as they generate it". 63.20031 CONSTITUTION AS COUNTERMONUMENT2 II. at 385. a posteriori to give oneself a past from which one would like to be descended in opposi'63 tion to the past from which one is descended. supra note 37. Genealogy. if instead of "embodying memory. preservationist impulse of "antiqua59 rian history. If traditional monuments do "not remember events so much as bury them altogether beneath layers of national myths and explanations". See Michel Foucault. didactic logic of what Nietzsche calls "monumental history" but the paralyzing..J. as it were. In the German countermonuments. at 15. not to be everlasting but to disappear. and Epistemology 369. but rather as growing out of a past as its heir". at 30.103 Colum. in other words. that what is highest in such a moment of the distant past be for me still alive. 2003 2003 . Philip P. Judicial Review. and the Federalism Cases: An Interdisciplinary Critique. the happiness of knowing oneself not to be wholly arbitrary and accidental. L. 64. not to remain fixed but to change.. Method. 1720 (2002) (characterizing federalism cases of 1990s as "radical transformation"). Nietzsche. HeinOnline -. not to remain pristine but to invite ." and even the truth-seeking revisionism of "critical history. the monument dis(agreeing "with Justice Souter's exposition of the radical character of the Court's holding and its kinship with the discredited. violation and desanctification. 123 (criticizing revisionism). 111 Yale L. antiquarianism's promise of "the contentment of a tree with its roots. It is a "use of history that severs its connection to memory" 60 without accepting subordination to metaphysical truth or the search for an actual past. History. Frickey & Steven S. 62. 20. 1998). Rev. Countermonuments are built to throw back the burden of memory-to resist. Faubion ed. It resists not only the self-aggrandizing. in Hommage d Jean Hyppolite 145 (Presses Universitaires de France 1971). See Steven Knapp. not to be ignored by passersby but to demand interaction.
grows slack. supra note 45. undermines the support collective memory lends to institutional arrangements. Rev. a treaty. then. Booth. 66. 70." Foucault. "[a] 11acting requires forgetting. As Benedict Anderson insists (following Ernest Renan). at 381. consequently. Id. Such moments are especially prone to the cathectic predations of collective memory. Beneath the consoling play of recognitions. at the same time. supra note 41. but. at 777. It recalls absences. aims at dissolving the singular event into an ideal continuity-as a theological movement or a natural process. ' 71 Indeed. Qu'est-ce qu'une Nation?.2004 COLUMBIA LAW REVIEW [Vol. and perhaps also those to come. isolates and emphasizes facts inconvenient to the coherence and emotional appeal of collective memory and national identity (without. at 201 (quoting Ernest Renan. remembering his65." countermonuments and the mode of historical consciousness they reflect are committed to a more rigorous form of memory work. HeinOnline -. permitting any facile incorporation of these facts back into the national narrative). a reign. An event. at 10. supplanting a community's memory-work with its own material form. supra note 33. as not only light but also darkness is required for life by all organisms. at 5. 68. Anderson. 103:1992 places it altogether. when responding to mass historical injustices. 891-93 (1947)). As Nietzsche reminds tIs. It therefore deprives history of its force for life. as the German countermonuments suggest. countermemory reveals discontinuity." Nietzsche." Foucault argues. a domination that grows feeble. 69. "a barbarous and shameful confusion. the entry of a masked "other. for many nations. supra note 59. 68 Strong medicine should be sparingly prescribed. the appropriation of a vocabulary turned against those who had once used it. in I Oeuvres Complktes 887. at 86 (discussing importance of selective memory to successful social transformations)." 66 And for this very reason.103 Colum. but the reversal of a relationship of forces. or a battle." 7 and (more specifically for our purposes). All the more so when grave misdeeds have become transition points in a nation's identity-deeds marking the emergence of a new order or the survival or restoration of an old one. Foucault. 2004 2003 . the usurpation of power. countermemory not only depends upon and excavates resistance. it provokes it. poisons itself. Indeed. needs) to forget. what memory resists remembering. rather than the dead. supra note 37. supra note 59. "Effective" history. one that seeks out and exposes precisely what collective memory 65 wishes (indeed. however. it may be that justice (at least the dimension of justice that responds to memory) 69 cannot be done without countermemory. 67. countermemory is an important technique for resisting the elisions mass historical injustices invite in the collective memory of their perpetrators and beneficiaries. is not a decision. Booth rightly notes the tendency of contemporary theorists to frame justice in terms of the claims of the living. see also Halbwachs. L. their most acute manifestations. "Having to 'have already forgotten' tragedies of which one needs unceasingly to be 'reminded' turns out to be a characteristic device in the later construction of national genealogies. at 380-81. deals with events in terms of their most unique characteristics. "An entire historical tradition.
. and Reconstruction runs deep indeed. 73." Of course. in a Forgotten Corner of Louisiana. 2003. (We can be sure. 1869-1879. HeinOnline -. The Colfax Riot: Stumbling on a Forgotten Reconstruction Tragedy. 72. 1863-1867. L. this "civil war" would have been replaced in 72 memory by something quite unbrotherly. at xvii. Hyman. Richard Rubin. Rev. Yankees. southern whites. William Gillette.. 2005 2003 . Atlantic Monthly. My translation reads: "[T]he essence of a nation is that all its individuals have many things in common. see also infra note 183.103 Colum. REMEMBERING/FORGETrING RECONSTRUCTION The desire for a reassuring national narrative regarding slavery. III. Retreat from Reconstruction. See Eric Foner. that if the Confederacy had succeeded in maintaining its independence." 74 it could hardly be otherwise-we desperately need the reassurance. 75 But I want to focus on one of the most disturbing and potentially far-reaching 71. Anderson.20031 CONSTITUTION AS COUNTERMONUMENT 2005 torical injustices in such a way as to find reassurance in them has become "aprime contemporary civic duty .." 75. Qu'est-ce qu'une Nation?. fratricide. and like the "diverting spectacle of a great Founding Father whom every schoolchild is taught to call William the Conqueror" in textbook English history. supra note 33. and also that all have forgotten many things. the war between the states is persistently figured as 73 a "reassuringfratricide. xvii-lxviii (Harold M. manifestations of monumental historical consciousness regarding these events abound in our cultural landscape. Thus history's connection to collective memory must be severed. at 200-01. at 155. Harold M. Anderson gives the example of the Civil War: A vast pedagogical industry works ceaselessly to oblige young Americans to remember/forget the hostilities of 1861-1865 as a great "civil" war between "brothers" rather than between-as they briefly were-two sovereign nation-states. Monuments] (discussing Civil War monuments and controversies over displaying Confederate Flag in public spaces). 74. Reconstruction: America's Unfinished Revolution. July/Aug. And it is countermemory that recalls what collective memory wants to forget.a systematic historiographical campaign. at 199 (quoting Ernest Renan. secession. at 115-16 (1979) (describing Colfax Riot). est que tous les individus aient beaucoup de choses en commun. and blacks). Because the want is so persistent. at 201. et aussi que tous aient oubli6 bien des choses. Written in Stone: Public Monuments in Changing Societies 33 (1998) [hereinafter Levinson. at xix-xxiv (1988) (canvassing Reconstruction historiography). 1861-1870. Hyman ed. 1967) [hereinafter Radical Republicans] (describing tendentious cinematic depictions of Civil War. Id. in 1 Oeuvres Completes 887. 892 (1947)). Id. if we are to recover and do justice to what we have lost by seeking that reassurance.) Like the "colossal religious conflicts of mediaeval and early modern Europe" in which the origins of French national identity are retroactively located. Id."'7 1 Tellingly. if Renan is right that "'essence d'une nation. however. at 200-01 (emphasis added). 155. Sanford Levinson. Introduction to The Radical Republicans and Reconstruction. or at least suspended.
501 U. but also its authority to abrogate state sovereign immunity in the exercise of standard Article I powers. the federalism revival is predicated on recalling the Civil War and Reconstruction in such a way as to forget their structural significance for state sovereignty.S. only as the result of memory work predicated on forgetting the structural significance of the Civil War and 76 Reconstruction Amendments. J. United States. J.S. In 1995. 549. J. United States. Gregory v. and. plurality opinion).. id. I then argue that this robust strain of federalism is a manifestation of monumental historical consciousness. Inc. 78. Term Limits. The issue provoked vigorots debate between Justice Stevens. id. in the strong sense the Court has endorsed. the Court struck down the Gun-Free School Zones Act as an impermissible extension of Commerce Clause powers in Lopez v. see generally Pamela Brandwein.S. It is worth noting at the outset that the analysis I offer surely has implications for the Court's interpretation of the substantive provisions of the Reconstruction Amendments. See U. at 925-26 (Thomas. 505 U. 103:1992 contemporary examples. cf. 77. at 844 (Kennedy. Although the Court's jurisprudence in these areas is still developing and (given the narrow majority supporting it) unstable. 583 (1995). writing for the majority and concluding that control over federal HeinOnline -. dissenting). remains more or less confined within the domain of traditional intentionalist methodology. 452. the Supreme Court has dramatically undercut congressional prerogatives-not only its power to legislate under the Commerce Clause and Section 5 of the Fourteenth Amendment. her analysis does not treat Rehnquist Court cases. but the focus of this Article is on the suppression of the link between these Amendments and the Court's new federalism jurisprudence. the opinions mark a bold revival of federalism principles..103 Colum. 514 U. Thornton. the Court also split over the states' power to impose term limits on members of Congress. e. Rev. Ashcroft. Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth (1999).78 The law made it a federal crime "knowingly to 76. For analyses of the implications of collective memory for the substantive provisions of the Fourteenth Amendment.g. Revivalist Federalism Though earlier decisions surely hinted at what was to come. at 211-14. id. supra note 47.. 514 U. v. 779. In what follows. is viable only as an expression of monumental historical consciousness-that is to say. I contend that federalism. L. 188 (1992) (holding that Congress lacks power under Commerce Clause to compel states to provide for disposal of radioactive waste produced within their borders). at 7-8. see Brandwein. In a line of recent cases. I briefly detail the cases as well as the federalism principles on which they purport to stand. and Meister.S. A. 2006 2003 . In the same year. 77 the federalism revival began in earnest with a series of decisions in the middle of the last decade. More precisely. 837 (1995) (Stevens. To put it in Anderson's terms. See.2006 COLUMBIA LAW REVIEW [Vol. 144. 460 (1991) (holding that applying federal antidiscrimination laws to Missouri statute mandating retirement of state judges at age seventy "would upset the usual balance of federal and state powers"). New York v.S. concurring). supra. perhaps more importantly. While I share Brandwein's conviction that the significance of the Reconstruction Amendments has been obscured by the Court. Federalism cases and the memory work they display therefore take center stage..
at 802.S. Halderman. is a school zone. 78. see also Kathleen M. 242 (1985) (affirming that to abrogate state's Eleventh Amendment immunity Congress must make its "intention unmistakably clear in the language of the statute"). dissenting). 85.S. 451 U. Wickard v. Lopez.J. 514 U.S. of course. 79. 83. § 8. v. C. The Court held that notwithstanding Congress's clear expression of intent to abrogate state sovereign immunity under the provision in Article I giving Congress plenary power to regulate commerce with tribes. at 51-52. Jones & Laughlin Steel Corp. art. V 1988)). Scanlon. L. 317 U. 82. See generally NLRB v. United States v. 80. Lopez. Sullivan. Filburn.S. 234.C. Term Limits.) (stating in dictum. '8 5 The decision opens a massive gap in the federal enforcement regime-federal law may now be enforced against deviant states only if the states consent to private suit. In defense of state sovereignty. at 551 (quoting 18 U. "Even when the Constitution vests in Congress complete law-making authority over a particular area. for the first time since its famous 1937 retreat from aggressive Commerce Clause scrutiny.S.83 The Seminole Tribe sued Florida in federal court under provisions of the Indian Gaming Regulatory Act for failing to negotiate in good faith 84 with the tribe to form a compact regarding gambling on tribal land. 312 U. Congress validly abrogates immunity under the enforcement clauses of the Reconstruction Amendments."8 1 The Court reasoned that the asserted effects on interstate commerce of violent crime at and around schools were too remote and un82 supported by proper legislative findings. 109 Harv. 86. 72-73 (1996). L.80 the Court "held that a federal statute regulating the citizenry exceeded congressional authority under the commerce power. that the Eleventh Amendment bars Congress from using any of its Article I powers to subject states to suit by private citizens for violating federal law. & Hosp. Thornton. 17 n. the Court had already imposed a "clear statement rule" on legislative efforts to abrogate sovereign immunity. 517 U. 1 (1937). the federal government may coerce compliance using its spending power. 100 (1941). Const.20031 CONSTITUTION AS COUNTERMONUMENT 2007 possess a firearm at a place that the individual knows. 514 U. or the federal government musters the resources to bring suit itself. the Eleventh Amendment trumps congressional power when it comes to authorizing private suits to enforce the federal rights it creates. 1. Rev. the Court ruled in Seminole Tribe v. supra note 58. Inc.S. at 72.S.. See Atascadero State Hosp. Id. see id. See U. As Chief Justice Rehnquist wrote for the majority. 473 U. Seminole Tribe.86 And the Court reached this result even legislators was not among the reserved rights of the states under the Tenth Amendment. cf. whose ardent defense of state sovereignty approaches the "constitutional ontology" of antebellum states' rights advocates. at 562-64. 81. "There are HeinOnline -.S. See id. The following year. Frickey & Smith. J. Rev. at 1721. 2007 2003 .S. § 922(q) (])(A) (Supp."79 The case is a landmark because. v. Florida.103 Colum. v.. 517 U. 111 (1942). I. 301 U.S.S. at 851 (Thomas. and Justice Thomas. Darby. the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting states. Dueling Sovereignties: U. Pennhurst State Sch.S. 44. 84. 98-99 (1995) (drawing comparison between Thomas's position and antebellum views). Indirectly. or has reasonable cause to believe.13 (1981) (Rehnquist.
decided in 1997.S. Smith. 1. Employment Div. Congress enacted the Religious Freedom Restoration Act to bar the government from burdening religious exercise "even if the burden results from a rule of general applicability. v. dissenting) (noting continuing availability of Ex parte Young). In the earlier case. Flores. "[lIn direct response" to the case." U. 209 U.. by appropriate legislation. assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against nonconsenting States. 103:1992 though the plain language of the Eleventh Amendment is utterly silent with respect to suits against a state by its own citizens to vindicate federal rights. The Court held that the right to free exercise of religion included no exemption from neutral. 15 (1890))).S.S. 87. 890 (1990). HeinOnline -. XIV..S. 521 U. at 512. § 1983 (2000) and actions for injunctive relief under Ex parte Young. . The Eleventh Amendment provides: "The judicial power of the United States shall not be construed to extend to any suit in law or equity. Ct.S. § 5. The dissent's lengthy analysis of the text of the Eleventh Amendment is directed at a straw man-we long have recognized that blind reliance upon the text of the Eleventh Amendment is "'to strain the Constitution and the law to a construction never imagined or 87 dreamed of.8 9 Although Boerne arose from seemingly exceptional facts (a congressional enactment designed to reverse a recent Supreme Court decision on the scope of protection afforded by the Free Exercise Clause of the First Amendment) . the Court denied a free exercise claim brought by Native Americans who lost their jobs and were denied state unemployment benefits for using peyote in violation of a state law that criminalized such conduct even if undertaken for religious purposes. we cannot. Const. 507.S. J. 123 (1908). As Rehnquist derisively wrote: "Manifestly. 322."). Louisiana. amend. at 68-69 (quoting Principality of Monaco v. 90. 326 (1934) (quoting Hans v." . Rev. 517 U.'Finally.S. U.103 Colum.S. 521 U." the substantive provisions of the Amendment. 2008 2003 . Id. 872. or by Citizens or subjects of any Foreign State. Dep't of Human Res. generally applicable laws such as Oregon's drug statute.2008 COLUMBIA LAW REVIEW [Vol. 313. . And private individuals still have recourse against offending state officials through 42 U. 1994 (2003) (Kennedy. See Nev. 515. 292 U.9 and although the Court insisted that "Congress must have wide latitude" in legislating under Section 5 "to remedy or prevent unconstitu- limits on the power of Congress to impose conditions on the States pursuant to its spending power. 89.S.S. Behind the words of the constitutional provisions are postulates which limit and control. 123 S. v. 1972. the Court held that Congress cannot legislate to prevent or remedy violations of Section 1 of the Fourteenth Amendment (which guarantees equal protection and due process of law. Seminole Tribe. amend.. 535-36 (1997). 134 U. Const. 494 U. in City of Boerne v. 88. at 878-79. Mississippi." Boerne.C. L. X1. commenced or prosecuted against one of the United States by Citizens of another State. Hibbs. among other things) beyond what the Court itself has de8 fined as the scope of Section 1 guaranteesH Section 5 of the Fourteenth Amendment gives Congress broad authority "to enforce.
"There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power.S. Garrett. Post & Reva B.S. Morrison. United States v. supra note 54. which triggers a heightened level of scrutiny". L.S. While it is surely too soon to assess the full impact of Hibbs. Ct. see also Robert C. Siegel. 123 S. Protecting] (criticizing Boerne test and Court's claim of exclusive authority to give Fourteenth Amendment meaning).S. 384 U. it ratifies it. 301 (1966)). 356. see also Robert C. Boerne. see id. Katzenbach. but. Siegel.. of Trs. e. . 2058 (2003) (criticizing Court's model for reviewing Section 5 legislation in context of Hibbs). 529 U. See. of the Univ. notwithstanding the outcome in Hibbs.e. 2009 2003 . 123 S. of Ala. 641 (1966). no statute has survived the Boerne test. and (3) gender classifications are one of the few group-based classifications to which the Court already applies heightened scrutiny in its Equal Protection jurisprudence-a fact that apparently eased Congress's burden of proving that the FMLA is an appropriate (i.. "[h]ere . 112 Yale LJ. Congress must prove that its remedy is a proportionate response to conduct by the states that is unconstitutional under existing Supreme Court interpretations of Section 1 guarantees. 1.g. 613-17.. Each case has been reaffirmed in subsequent decisions striking down or limiting a wide array of congressional enactments. 619. Rev.S.J. See United States v. congruent and proportional) response to unconstitutional conduct by the states. see Tribe. see id. concurring).. 78 Ind. 598. at 519-20. at 520. In short. The Court has repeatedly suggested that Congress also may legislate to prevent unconstitutional conduct (even if preventive legislation proscribes innocent conduct in the process). As the Boerne Court put it.2003] CONSTITUTION AS COUNTERMONUMENT 2009 tional actions. Hibbs. v. 625-26 (2000) (striking down Violence Against Women Act as beyond Congress's commerce powers and its enforcement powers HeinOnline -. it is worth noting (1) that the decision does not mark a break from the narrow congruence and proportionality test set out in Boerne-indeed. 383 U. it was easier for Congress to show a pattern of state constitutional violations"). 92. 372-74 (2001) (holding that private citizens may not sue states in federal court for violation of Americans with Disabilities Act because Congress is without power to abrogate state sovereign immunity under Article I and ADA fails congruence and proportionality test set out in Boerne for Congress's enforcement power under Fourteenth Amendment). L. Morrison. For an analysis of the Court's jurisprudence on groups entitled to heightened scrutiny. (2) three of the Justices joining the majority opinion wrote separately to emphasize that their vote in the case in no way implies endorsement of the Boerne test. at 1977-78. "[b]ecause the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rationalbasis test . and the voting rights cases (decided before the federalism revival) are the only modern example the Court gives of "appropriate" prophylactic legislation supported by sufficiently detailed congressional findings. 364. 531 U. at 1436-1672. 93 But what unifies at least 91. 529 U.. 1943.S. and South Carolina v. see Hibbs. 598. Bd. 1972. 1994 (2003) (upholding Family Medical Leave Act as valid exercise of Section 5 powers and concluding that statute abrogates state sovereign immunity). To avoid separation of powers and federalism concerns. at 1984 (Souter. at 1982 (unlike other groups Congress has sought to protect. Legislative Constitutionalism and Section Five Power: Polycentric Interpretation of the Family Medical Leave Act. 626 (2000) (citing Katzenbach v. it remains difficult to imagine prophylactic legislation for other groups surviving the Boerne test. 17-30 (2003) [hereinafter Post & Siegel. most of which were designed to protect groups that have long suffered unequal treatment at the hands of both public and private actors." 9 1 the standard the Court created to determine when Con92 gress has overstepped its Section 5 authority is remarkably miserly." Id. Post & Reva B. Ct. Morgan. 93.103 Colum. 521 U. J. . Congress directed its attention to state gender discrimination. with the exception of Nevada Department of Human Resources v.
Rev.S. United States v.103 Colum. Lopez. 743. 527 U. see also Post & Siegel. 94. Cloaked in this disguise they turn the proper sense of monumental history into its opposite. 758-60 (1999) (holding that Congress is without power to subject unconsenting state to suit even in state courts. Bd. 666. 706. see Federal Maritime Commission v. at 17-30 (criticizing Supreme Court's arrogation of the "exclusive prerogative to declare constitutional meaning"). at 17-18. College Savings Bank v. Instead. 91 (2000) (finding that states are immune from suit in federal court for violation of Age Discrimination in Employment Act). even in areas such as criminal law enforcement or education where States historically have been sovereign. 765-69 (2002) (holding that Eleventh Amendment and principles of "dual sovereignty" prohibit private suit against state agency for violating the Shipping Act even if suit is not brought in federal court. of Regents. 647-48 (1999) (dismissing federal patent infringement suit against state agency on sovereign immunity grounds). Protecting.S. whether they know it clearly or not. For the cases restricting or striking down other federal remedies. Fla.'195 To permit Congress to legislate gun possession under these circumstances "would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort Under Fourteenth Amendment. 62. Alden v. 527 U. 441. 110 Yale L. Nor are the cases driven (at least in the first instance) by animosity or indifference toward the plight of the groups concerned. 691 (1999) (dismissing federal suit for false advertising against state agency under Lanham Act on sovereign immunity grounds). 2010 2003 . 528 U. "it is difficult to perceive any limitation on federal power.J.S. as a "connoisseur" of past institutional commitments. Chief Justice Rehnquist's opinion for the Court emphasized that if the remote effects on commerce posed by gun possession near schools were sufficient to justify a federal statute criminalizing such conduct. 95. 535 U.S.S. supra note 92. Thus in Lopez. South Carolina State Ports Authority. 627. Maine.2010 COLUMBIA LAW REVIEW [Vol. and Florida Prepaid Postsecondary Education Expense Board v. Post & Reva B. Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel. 514 U. Kimel v. dismissing suit by state employees against state of Maine for violating overtime provisions of Fair Labor Standards Act). the majority appears to be animated by a revived concern with the principle of states' rights-a concern it increasingly voices in and through historically grounded "reminders" regarding the institutional 94 commitments of dual sovereignty. at any rate they act as though their motto were: let the dead bury the living. with Nietzsche. Nietzsche. HeinOnline -. but in Article I administrative proceeding). 103:1992 the majority opinions in the cases is not any new doctrinal or empirical revelation. 549. see also Robert C. 1 say the Court appears to be animated by states' rights rather than animosity toward certain groups benefiting from congressional legislation because. supra note 37.S. statute was designed to provide victims of gendermotivated violence a federal remedy on grounds that state courts were biased against such victims). Siegel. 683-84. L. College Savings Bank. is using monumental history to suppress what it loathes in the creations of a Congress striving toward different conceptions of justice: Monumental history is the disguise in which their hatred of the mighty and the great of their time parades as satisfied admiration of the mighty and great of past ages. 564 (1995) (emphasis added). we may worry that the Court. Florida Prepaid Postsecondary Education Expense Board. 527 U. 458 (2000) (criticizing the Court's narrow view of authority under Section 5).
779. Read with his dissent in U. concurring) (citations omitted). 501 U.. Justice Thomas's concurring opinion. Thomas's views on states' rights are perhaps the most strident on the Court. at 580 (Kennedy. at 578 (Kennedy. Term Limits.S. Rev. See U. Ashcroft. v. but because the Act represented "a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens. at 567.103 Colum. 99. at 575 (Kennedy..S."1 °0 Indeed. L. concurring) (arguing that Framers were determined to "split the atom of sovereignty").S. 548 (1935))). dissenting). HeinOnline -. far from expressing cautious endorsement of the Court's holding. J. 514 U. The assertion that federalism is liberty-enhancing is often linked back to James Madison's Federalist No. Flores.S. 295 U.S. for example. Lopez is not the only settingJustice Kennedy has used to offer instruction on the roots of federalism. 452. Id."9 6 And in a concurring opinion purporting to cautiously endorse the Court's break with sixty years of deference to Congress. 96. J. 838 (1995) (Kennedy.S.. Id. See U. the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far. 514 U. Schecter Poultry Corp. Inc. 98. 514 U.. Justice O'Connor's majority opinion in Gregory v. the Court overturned the Religious Freedom Restoration Act (RFRA) not simply because the statute gave a meaning to the Free Exercise Clause the Court had recently rejected (and thereby arguably impinged upon the judiciary's role as the final arbiter of constitutional meaning). at 555 (emphasizing that formal distinction between direct and indirect effects of intrastate commerce "was rooted in the fear that otherwise 'there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government"' (quoting A. Term Limits. see also id. City of Boerne v. 97. concurring). we have a particular duty to ensure that the federal-state balance is not destroyed. at 845 (Thomas. 514 U. 28.2003] CONSTITUTION AS COUNTERMONUMENT 2011 retained by the States. 459-60 (1991). Thornton." and "[i]n these circumstances. 101. J. Term Limits."1 00 Similarly. 521 U.S. 2011 2003 . at 584-85 (Thomas. in Boerne. Kennedy opined. argues that federalism demands repudiation of the "substantial effects" test altogether. v. Lopez. concurring). Id.S. but for the concern for states' rights. Lopez. Justice Kennedy tendered a disquisition on "the significance of federalism in the whole structure of the Constitution.S. Id. 51 and Alexander Hamilton's Federalist No." 99 The Gun-Free School Zones Act offends because "education is a traditional concern of the States. 507. when "the exercise of national power seeks to intrude upon an area of traditional state concern. 98 The Court's role is especially important.A. concurring). 534 (1997).S.." 9 7 arguing that the political process (especially representation of the states in Congress) is inadequate alone to protect the balance of power between states and the federal government: Although it is the obligation of all officers of the Government to respect the constitutional design.L. J. J. United States. 495. it's not obvious the Court would have viewed the threat to separation of powers as gravely as it did. at 580-81 (citations omitted). 100.. J. See.
Id. L. 107.. RFRA impermissibly burdened states without any evidence that they had engaged in widespread religious discrimination: The substantial costs RFRA exacts. Id." In United States v.. the Court concluded: "The Constitution requires a distinction between what is truly national and what is truly local. the Framers crafted the federal system of Government so that the people's rights would be secured by the division of power .. at 616 n. at 615.."). at 619.7 ("As we have repeatedly noted.S. the majority again insisted that vigorous judicial review is essential to the preservation of dual sovereignty. but ever since Marbuiy this Court has remained the ultimate expositor of the constitutional text. In recognizing this fact we preserve one of the few 102. 103:1992 For the majority.On the question of commerce power.' 1 . noncommercial conduct impact interstate commerce. it would be able to regulate murder or any other type of violence since gender-motivated violence . at 534.. Morrison. both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional regulatory power. far exceed any pattern or practice of unconstitutional conduct under the Free ExBroad as the power of ercise Clause as interpreted in Smith . but that the broader definition interfered with the operation of constitutionally innocent state laws-or. 2012 2003 ."'' 1 More troublingly for the Court. 103. is certain to have lesser economic impacts than the larger class of which it is a part..2012 COLUMBIA LAW REVIEW [Vol." 10 However expedient such a consolidation of police power in the national government might seem. 106. RFRA contradicts vital principles necessary to °2 maintain separation of powers and the federal balance. the Court stressed. Congress is under the Enforcement Clause of the Fourteenth Amendment. 529 U. The statute created a federal civil remedy for victims of gender-motivated violence on the theory that there is "pervasive bias in various state justice systems" against these victims. By requiring review of any state law that has the incidental effect of burdening a particular religious practice. 105.. 104.. the Court worried that "if Congress may regulate gender-motivated violence. 598 (2000). United States v.103 Colum. 536. the harm in RFRA was not simply that it defined free exercise more broadly than the Court had. put another way. Morrison. if Congress may legislate whenever the aggregated economic effects of individual. HeinOnline -.11 3 In striking down the Violence Against Women Act (VAWA)10 4 as beyond both the commerce power and the enforcement powers conferred by the Fourteenth Amendment. See id. Id. No doubt the political branches have a role in interpreting and applying the Constitution. Id. Rev. the Court is even more explicit about protecting federalism principles. where the principles underlying Lopez and Boerne converge. then Congress may reach "family law and other areas of traditional state 7 regulation. with the states' legitimate exercise of their police powers.
Fletcher. 1890-91 (1983).20031 CONSTITUFTION AS COUNTERMONUMENT 2013 principles that has been consistent since the [Commerce] Clause was adopted. 521 U. 113. 35 Stan. but at individuals who have committed criminal acts motivated by gender bias. "that remedy must be provided by the Commonwealth of Virginia.1 12 "[N]o civilized system ofjustice could fail to provide . The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation. Const. 110. John J. as it had in Boerne.. L." the Court reasoned. a remedy for the conduct of the respondent" (the male college student who raped the plaintiff seeking damages under VAWA). Rev. Rev. 111. that Section 5 explicitly permits Congress to "intrud[e] into 'legislative spheres of auton0 omy previously reserved to the States. amend. Flores. See William A. L. 1889."' 13 In the Court's Eleventh Amendment decisions. 445. appears only to preclude Congress from authorizing diversity suits against states "by Citizens of another State. 427 U. 455 (1976))). Rev. 109."108 On the question of enforcement power under the Fourteenth Amendment. Rev. In language that. Fletcher. A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant ofJurisdiction Rather than a Prohibition Against Jurisdiction. 843.37-38 (2000) (surveying major scholarly interpretations of Eleventh Amendment). 114.. 75 Notre Dame L. or by Citizens or Subjects of any Foreign State. at 619 (quoting City of Boerne v.S." '' The Act not only reaches beyond any "bad" state actors. 83 Colum. U.. On the way to this conclusion the Court simply brushed off the argument that a federal remedy against perpetrators of violent crime was necessary because of systemic bias in the state judicial system. William A.S. HeinOnline -. 1033-34 (1983). the federalism rationale is equally emphatic. L. The Eleventh Amendment: Unfinished Business. at 627. Id. See supra note 93. that '[i]t is inherent in the nature of sovereignty 108." 4 As the ChiefJustice wrote in Seminole Tribe. on its face. "But. and not by the United States.S. XI. Id.. 2013 2003 . 1033. at 617-18 (citations omitted). Gibbons. Bitzer. and ." ' 1 9 But just as quickly the Court insisted that certain "limitations" of the enforcement power-limitations that inhere in "the language and purpose" of the Amendment-"are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government. 507. 848 nn." 110 VAWA fails precisely because it transgresses one of these federalism-protecting limits-"it is directed not at any State or state actor. Id. 112. at 620. at 626. In other Section 5 cases. (criticizing congressional findings of state discrimination against victims of gender-motivated crimes). federalism "reminders" have become positively strident. Id." the Court locates a wholesale prohibition on private suits absent state consent. Id. 518 (1997) (quoting Fitzpatrick v.103 Colum. the Court admitted. it usurps state authority to regulate the conduct of its citizens. Id. the text stands for the larger principle "that each State is a sovereign entity in our federal system.
103:1992 not to be amenable to the suit of an individual without its consent. Fed. Maine. upon ratification of the Constitution. its consistent solicitude for "areas of traditional state 115. Florida. 443. 1. Fed. and Seminole Tribe.S. Seminole Tribe v.. we must examine FMC adjudications to determine whether they are the type of proceedings from which the Framers would have thought the States possessed immunity when they agreed to enter the Union..S.103 Colum. " An integral component of that "residuary and inviolable sovereignty. 118. On the "dignitary rights" theory of state sovereignty. arguing that the states would not have entered the Union if it meant surrendering the basic rights and privileges of sovereignty: Dual sovereignty is a defining feature of our Nation's constitutional blueprint. S. 2 U. Rather. at 760 (emphasis added)."). at 758 ("Congress must accord States the esteem due to them as joint participants in a federal system. at 753 (emphasis added)... at 756 ("To decide whether the Hans presumption applies here .S. Metcalf & Eddy. did not consent to become mere appendages of the Federal Government. 123 U. see Alden v."' 18 Thus when Congress authorizes private suits against the states for their failure to abide federal laws.'" (quoting Puerto Rico Aqueduct & Sewer Authority v.S.2014 COLUMBIA LAW REVIEW [Vol.S. 751-52 (2002) (emphasis added) (citations omitted) (holding that Eleventh Amendment bars administrative suit by private cruise ship company against state agency for violations of the Shipping Act)." (quoting Ex parte Ayers. Justice Thomas insisted. id. B. "7 a decision construing the state-citizen diversity clause of Article III. 749 (1999) ("Private suits against nonconsenting States. 535 U. 13 (1890) (internal quotation omitted) (citation omnitted)). see also id."). L." 16 Viewed in this context. Comm'n v.S.S. 706. 535 U. 517 U."' 11 5 In the Court's most recent extension of Seminole Tribe. 134 U. Justice Thomas emphasized the historical freight of the proposition. Comm'n. Mar.C. State Ports Auth.) 419 (1793). it is but one particular exemplification of that immunity. (2 Dall. it fails to "accord States the dignity that is consistent with their status as sovereigns" I 9-a cardinal sin in the robust federalism of the Rehnquist Court. 44. 146 (1993))).S. 527 U. the Eleventh Amendment-drafted and ratified to overturn Chisholm v. 743.. Monumentalist Memory Work: Assuring the Survival of Antebellum Federalism Principles The current Court's defense of "dignitary" rights against federal law enforcement efforts. 139. one beginning with the premise of sovereignty in both the central Government and the separate States. Section 2. 117.. 505 (1887))). States. Inc. Louisiana." retained by the States is their immunity from private suits. Georgia. Rev. 517 U. 119. at 58 ("[T]he relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment" because that Amendment "serves to avoid 'the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties. 2014 2003 . 506 U. HeinOnline -. 54 (1996) (quoting Hans v.S.' regardless of the forum. Id. Mar. present 'the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties. 116. they entered the Union "with their sovereignty intact. to authorize suit against Georgia by a citizen of South Carolina-"does not define the scope of the States' sovereign immunity.
527 U. United States v. 622-24 (2000) (limiting United States v. See infra note 146. & Soc'y 57. Ashcroft. Guest. Rev. 549. 94-95 (Lawrence M. 301 U. 10J. and Wickard v. United States v. 100 (1941). Redesigning] (discussing conflicts surrounding development of federal powers post-Civil War). 452. The Constitution creates a Federal Government of enumerated powers. of course.20031 CONSTITUTION AS COUNTERMONUMENT 2015 concern. As the dissenting opinions suggest. at 552 (emphasis added) (citations omitted) (quoting The Federalist No.S.. Morrison. Scheiber.S. Lopez. turns on a chillingly amnesic reproduction of antebellum conceptions of state sovereignty-something approaching what it would mean for Kassel simply to 120. They reflect both a principled endorsement of robust federalism and an attempt to show that the endorsement is itself the necessary result of authoritative memory work. 1961). As James Madison wrote: "The powers delegated by the proposed Constitution to the federal government are few and defined. 491 U. Harry N. 233-40 (1996) [hereinafter Scheiber.. L. Seminole Tribe.g. see also Alden. at 66 (overruling Pennsylvania v.S. Friedman & Harry N.. 745 (1966). Jones & Laughlin Steel Corp. in which concurring Justices expressed view that Congress could prohibit actions by private individuals pursuant to Section 5). & Pol'y Rev. 14 Yale L. The historical consciousness of the federalism revival.S.S. 561 (1995) (limiting substantial effects test established in NLRB v. Those which are to remain in the State governments are numerous and indefinite. in American Law and the Constitutional Order: Historical Perspectives 85. by appearing to recall the kind of "limits" Chief Justice Marshall warned we are preternaturally tempted to forget. 529 U. Union Gas Co.103 Colum.make clear that the States' immunity from suit is a fundamental aspect of the sovereignty they enjoyed before the Constitution's ratification and retain today").. at 260 (James Madison) (Clinton Rossiter ed. 317 U. 1 (1989). see also Harry N. But deeper mnemonic forces are at play here. See. 514 U. are not merely rhetorical flourishes. and Gregory v.L. United States v. Economic Order] (discussing centralization and expansion of federal power in nineteenth century).. 555-57. 312 U. e. Harry N. Federalism and the Constitution: The Original Understanding.S. As Chief Justice Rehnquist insisted at the outset of his analysis in Lopez: We start with first principles. 111 (1942)). 2015 2003 . 45. 1978) (describing Madisonian-Hamiltonian division over the "conception of federal-state relationships in the compound system of government they formulated"). 120 And. 383 U. Redesigning the Architecture of Federalism-An American Tradition: Modern Devolution Policies in Perspective. at 706 (starting from premise that "[t]he Constitution's structure and history . the logic of its memory work.. 227.S. This method of legitimating judicial review is well recognized." 514 U. Scheiber. the federalism revival lays claim to the ostensibly unimpeachable authority of 21 returning to first principles and founding intentions. HeinOnline -.S. 100-15 (1975) [hereinafter Scheiber. 121.S.S. Federalism and the American Economic Order. 598. 501 U. Darby.. which held Congress has authority to override states' sovereign immunity when legislating pursuant to Commerce Clause)." This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties. Precedents the Court has swept aside in order to revive federalism are not binding on this register because they "forget" the importance of antecedent commitments to dual sovereignty. 1 (1937)." and its obsessive presentiment about consolidating "general police powers" in the federal government or upsetting the liberty-enhancing balance of federal and state powers. 458 (1991)). the federalism/nationalism valence of the "first principles" invoked by the majority is far from clear.S. Scheiber eds. Filburn. 1789-1910. Scheiber. 517 U.
the Court's elisions are not sui generis. Mar. So elisions regarding the Civil War and Reconstruction in the Rehnquist Court's federalism revival should hardly be surprising. In Boerne. a priori. but as one of the more pernicious dangers the Reconstruction Congress and Court assiduously sought 23 to avert. a failure of federalism. for instance. On the contrary. and the Court has drawn liberally from that memory for credibility in its recent decisions constraining federal power. anti-democratic injustices it insulated. the imagined terms of the Foundingwould stall out. after all. The assertion is deceptively familiar.S. Whether. the confident reach back to monumental first principles and founding intentions-the persistent effort to read the Reconstruction Amendments and the Civil War as conditioned by." could not be invoked without simultaneously recalling and giving weight to the paradoxical conditions of saving and re-entering the Union in the 1860s. of a project dedicated to reaching past the ruptures of the 1860s to the robust federalism of the Founding.103 Colum. 123. judges can get "outside" this framework and remain there for purposes of constitutional interpretation is addressed in the next section. Rev. the Court insisted in Boerne. Outside this monumentalist framework for thinking federalism. Flores. 520 (1997).'1 The original draft of the Enforcement Clause. Monumentalist historical consciousness is all the more necessary if the reach back is to be made to appear self-evident and obligatory. almost platitudinous and hollow. HeinOnline -. rather than radically altering. internecine war following secession was over nothing. practically and ethically. if not the fate of a particularly robust strain of federalism and the grave." gave Congress "power to make all laws which shall be necessary and proper to secure to the citizens of each State" the sub2 stantive rights conferred in Section 1 of the Amendment. in this Article I nevertheless refer to the Court under Chief Justices Chase and Waite as the Reconstruction Court. L. But however ambitious and amnesic this memory work is. the conditions of entering the Union and the authoritative inferences drawn from "defining feature[s] of our Nation's constitutional blueprint. but it is just this deceptive familiarity on which the federalism revival relies for interpretive legitimacy. the monumentalist mode enjoys a rather distinguished pedigree in the nation's collective memory. City of Boerne v. Without a reassuringly familiar register for both remembering and suppressing our most profound democratic failure. precisely because "Democrats and con122. Comm'n. 124. 103:1992 have rebuilt the Ashcrott-Brunnen in place rather than represent the fact of its destruction and the forces responsible for its absence. 122 Our descent into a protracted.S.2016 COLUMBIA LAW REVIEW [Vol. at 751. 1 4 It was tabled. not to mention the moral terror. the concentration of general police powers in Congress under the Fourteenth Amendment is figured not merely as an affront to federalism principles. 2016 2003 . 507. 535 U. Only monumentalist memory work could strip away the conceptual paradoxes. the so-called "Bingham proposal. Although many decisions were issued after 1877. 521 U. Fed.
2542 (1866). Boerne.. . L. see generally Brandwein. at 524. Rev. 126. however. 1 and Vir125. and which. 'That Amendment erects no shield against merely private conduct.S. 42d Cong. "Under the revised Amendment. 1st Sess. Cong. such as may be necessary and proper for counteracting such laws as the States may adopt or enforce. Reconstruction and Reunion: 1864-1888 (1971). "is the time-honored principle that the [Amendment]. 598. . were confirmed in our earliest cases on 12 the Fourteenth Amendment. 13 (1948)). Congress' power was no longer plenary but remedial. for the proposition that Congress was not authorized to pass "general legislation upon the rights of the citizen. 1.S. Morrison. at 151 (1871))." See The Civil Rights Cases.' ° United States v. . 334 U. they are prohibited from making or enforcing . Note. by appropriate legislation. Globe.S. 128. prohibits only state action. Harris. at 525 (quoting The Civil Rights Cases. 13-14 (1883). but corrective legislation. 1st Sess. "Foremost among [the] limitations" embedded in the history and language of the Fourteenth Amendment. The power to "legislate generally upon" life. 529 U. 6 Charles Fairman. that the Court in the Civil Rights Cases used "necessary and proper" interchangeably with "enforce.S. 39th Cong. however discriminatory or wrongful. the Boerne Court was quick to add that "[t] he remedial and preventative nature of Congress' enforcement power. On the complexity of the historical record and the general difficulty of drawing conclusive inferences from mixed motives among authoritative institutional actors. at 3." Id.'-"129 The majority not only cited relevant Reconstruction-era cases to support this 1 proposition (the Civil Rights Cases." were concerns in the Reconstruction Congress 1 26 about federal usurpation of general police powers supposedly quelled. 109 U.103 Colum. Kraemer.S. as opposed to the "power to provide modes of redress" against offensive state action. at 15). was "re12 pugnant" to the Constitution. in striking down VAWA as beyond Congress's Fourteenth Amendment enforcement power. 629 (1883). by its very terms. 521 U. 621 (2000) (quoting Shelley v. by the Amendment. 521 U..S." to "to enforce. HeinOnline -.S.."' 25 Only after changing the language regarding congressional power from "to make all laws necessary and proper. by appropriate legislation. . supra note 76. liberty and property. that is. no doubt to bolster its facile inference from an exceedingly complex historical record. 109 U. the Morrison Court drew heavily on the memory of the Reconstruction-era Court regarding the intended scope of that power. appx. And. infra note 172. which struck down the Civil Rights Act of 1875. at 522-23 (citing Cong..The revised Amendment proposal did not raise the concerns expressed earlier regarding broad congressional power to prescribe uniform national laws with respect to life. Id. at 1-3."' 7 The Court then cited the Civil Rights Cases. 131.. 130.S. 109 U. 129. . . Globe. and the limitation inherent in the power. United States v. liberty and property. 2017 2003 . 3 Similarly. Boerne. 3.2003] CONSTITUTION AS COUNTERMONUMENT 2017 servative Republicans" in the 39th Congress believed it "gave Congress too much legislative power at the expense of the existing constitutional structure. 127. the Court wrote. 106 U.
162. at 560-61 (same). and its leading features. Hayes. when taken in connection with the history of the times. dissenting) (complaining that majority "evince[s] a very narrow and insufficient estimate of constitutional history"). 1045. As Justice Miller wrote for the majority in the notorious Slaughter-House Cases: The most cursory glance at [the Reconstruction Amendments] discloses a unity of purpose.2018 COLUMBIA LAW REVIEW [Vol. suggesting they are privileged mnemonic texts because they incorporate the memory of then-sitting Justices: The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books. Morrison. 1 34 In Morrison. which cannot fail to have an important bearing on any question of doubt concerning their true meaning.S. free from doubt. or Arthur-and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the 33 Fourteenth Amendment. since it suggests some dissonance between the Reconstruction Court and Congress over just what the Enforcement Clause empowered Congress to do. minus. 83 U. See Jack M. 103:1992 ginia v. More Perfect Union]. He writes: HeinOnline -. Every Member had been appointed by President Lincoln. For analysis of the legislative history leading up to the enactment of the Civil Rights Act of 1875. reunion. 137. 1975) (1973) [hereinafter Hyman. Hyman offers a forceful statement of the survival thesis in A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (Houghton Mifflin Co. Garfield. L. it is enough to see that the Court's federalism revival-its reach back to first principles-works by reinscribing a specific memory of Reconstruction that is said to have been shared by contemporary institutional actors.. the Court seems to suggest that the memory of the Reconstruction Court is dispositive. 36. even if the decision invalidated the enactment of a later Congress composed of many members of the 39th. at 622.S. 1098-99 (2001) (criticizing Rehnquist Court's ahistorical reliance on the Civil Rights Cases). Fortunately that history isfresh within the memory of us all. 100 U. The Reconstruction Court claimed authority for its own memory on the very same grounds. supra note 53. but also from the insight attributable to the Members of the Court at that time. L.. 135 This is a wrinkle to which we shall have to return. fratricide. Rev. 2018 2003 . Levinson. 67-68 (1872) (emphasis added) (using federalism principles to narrowly construe Section 1 of the Thirteenth and Fourteenth Amendments). 133. the argument was that the holding of the Civil Rights Cases is true to the intent of the 39th Congress. The fruit of this memory work I shall call the "survival thesis"-the conviction that robust federalism principles survived secession. cf. at 116 (Bradley. See infra notes 150. at 186-279. supra note 75. 1 36 But for now. Harold M. perhaps. it canonized them. Rives' 3 2 ). see generally Gillette. Rev.. 136. the principle of secession. by contrast. as they bear upon the matter before us. quite irrespective of whether it accurately reflects the intentions of those who drafted the language of the Fourteenth Amendment. id.S. 135. Grant.103 Colum. J. 529 U. Understanding the Constitutional Revolution.1 In Boerne. 87 Va. and Reconstruction 13 7 intact. 313 (1879). Balkin & Sanford Levinson. 132.. 134. Marbury.
2019 2003 .. It has. at 414-15 ("Constitutional permissiveness was never absolute." Id. the party which would attempt to carry HeinOnline -. at 385 ("After Appomattox. supra note 76.. L.. Although they. at 237. and racial relationships. passed laws and constitutional amendments which appeared to delegate power to the national government . and I am convinced that this is the prevailing sentiment among the American people . Am.. not for the purpose of circumscribing its scope and functions within narrower limits. Scheiber. [During Reconstruction] no centralized leviathan developed in Washington to replace state-centered federalism. but it was not designed to abolish what I would call the legitimate sphere of State-rights. id. 67 (1974) [hereinafter Benedict. 16 Stat. despite the existence of constitutional theories of near-limitlessness . and of Republican theoreticians such as John Norton Pomeroy and George Washington Paschal. 1870. 61 J. overthrown what I call State wrongs. 65. opposing the so-called "Force Acts" (providing for federal oversight of elections to prevent the increasingly organized and violent harassment and disenfranchisement of black and Union voters in the South. at 277 ("Federalism also [M]ost Republicans still believed the states retained affected Republican policy-making . And I venture to say .. see id. at 85 ("Nationalist strands of Republican thought were accompanied by deep attachments to state power" and "were suspicious of sweeping federal power.. were state-rights nationalists. [T]he Constitutional revolution has enlarged the powers of Congress for the purpose of establishing and securing true and general self-government in all of these [Southern] States. states' men in Congress and courts were almost always ready to recall that national constitutionalism stressed restraints. not the nation. ... Preserving] ("The distaste of many Republicans for federal intervention in the South was manifest in the Reconstruction program itself. supra note 75. A heavy phalanx of Republican politicos including Sherman and Trumbull. .. suspicious of any new functional path the nation traveled. as frequently intimated. id. the part of Congress concerning the South's states and Negroes were shaped by felt limitations on the allowable functions of government. see Force Act of 1870.. rights beyond the scope of federal intervention. at 304-06 (quoting Carl Friedrich."). proponents of increased national duties had to work within a theoretically static federal system."). The over-all War and Reconstruction result was not. an absolute increase in positive national powers and functions. but as Carl Friedrich perceived. no huge national." (emphasis added)). Preserving the Constitution: The Conservative Basis of Radical Reconstruction. supra note 121.. 140) reveals the sentiment: I am for State-rights as the embodiment of true and general self-government."). indeed. "). Even some Radical Republicans came to embrace the survival thesis. Hist. 240 (arguing that principles favoring decentralization in the balance of power between state and national governments survived the War).. Foner..103 Colum. and expected the relatively rapid return of the Southern states as equal members of the Union.2003] CONS77TUTION AS COUNTERMONUMENT 2019 The constitutional history of the United States had long accepted as a concomitant of federalism that almost all public social responsibilities were burdens for states and localities to assume. most Republicans never desired a broad. at 57 (arguing that Republicans wanted to keep "the 'traditional federal system"' as they understood it)... The Impact of American Constitutionalism Abroad 49 (1967)). see also Brandwein. . technological. [R]eluctant essays on Federalism's survival required continued reverence for all states .. permanent extension of national legislative power.. Carl Schurz's speech on May 19. "a decrease in [state and] local autonomy. . Michael Les Benedict.. Redesigning. Rev. coercive bureaucracy substituted for local decisionmaking. When attempting to accommodate administration and law to intensely dynamic industrial.
Foner... J. Carl Schurz. what is significant is that the majority in the modern Eleventh Amendment cases locates authority for its break with the literal text of the Amendment not just in arguments about original intent. 3 8 So just what has "survived" the War and Reconstruction in the way of antebellum federalism principles is even less settled in this area than in the Boerne/Lopez line of cases. at 288. 134 U.g. all matters regarding race. the other (so-called) invented by the Court nearly a century later in Hans v. incorporates "a presumption-first explicitly stated in Hans v. at 64 (noting that Union Gas "essentially eviscerated our decision in Hans.2020 COLUMBIA LAW REVIEW [Vol. Schurz made a name for himself among radicals in 1865 by preparing a report on conditions in the South used by Radicals in Congress to undermine President Johnson's position that Reconstruction was already complete. supra note 76. supra note 75. 535 U. supra note 47. Union Gas Co. see Brandwein. id. 60 (describing Northern Democrats' faith in and political reliance on "a well-established federalism" to oppose Reconstruction). 743. 100 (1996) (Souter. the Rehnquist Court is badly fractured on the original meaning of the Eleventh Amendment. See supra notes 114-119 and accompanying text. but in a decision of the Reconstruction Court endorsing an especially robust theory of state sovereign immunity. 138.").. the one ratified in 1795. at 363-64 ("[R]econstruction was weakened because of a constitutional tradition that was grounded in antebellum decentralization and local autonomy. 1865).. quite apart from limits of its text. J. 165-66 (1968). See Brandwein. 2020 2003 . in Radical Republicans. although not exclusively.. at 216-18 (noting that Northern Democrats' support forJohnson's plan was based on understanding that "control of local affairs by the individual states" was "central to the party's ideology"). 1870). 293-98. For our purposes though.S. "we have two Eleventh Amendments. judicial Power and Reconstruction Politics 141. On evolving Republican views see Hyman & Wiecek. such as the choice to legislate differently for blacks and whites (e. the conservatives and moderates-frequently read the Constitution in the most restrictive sense. were regarded as local. 39 Louisiana. Kutler.S. supra note 75. Louisiana-thatthe Constitution was not intended to 'rais[e]' up any proceedings against the States that were 'anomalous and unheard of when the Constitution was adopted"' (quoting Hans v. As Justice Souter wryly observed in his Seminole Tribe dissent. 103:1992 As both the opinions and commentary make clear.S. 507-08. See Carl Schurz. 517 U. supra note 75. at 400. Many American politiciansespecially. Rev. clear [that] the Eleventh Amendment reflects 'the HeinOnline -."). 491 U. On the Supreme Court's early and uncritical embrace of the survival thesis.S. Florida. South Carolina State Ports Authority." and insisting that Court's other "decisions since Hans had been . 1. at 504. L.. cases discussed infra note 162. at 30-31. 36. at 29 ("The only postwar matter that Northern Democrats were willing to see taken out of local majoritarian control was formal slave law. 517 U. Louisiana. Stanley 1. Address to Congress (May 19. Democratic commitment to the survival thesis was even more deeply entrenched. For the revivalist's reliance on Hans to avoid the textual limits of the Eleventh Amendment. supra note 75. 139. supra note 76. in Radical Republicans. 44. concurring)). 18 (1890) (alteration in original))). Otherwise. the Black Codes). Gillette. and Seminole Tribe. at 61-95.S.103 Colum. Seminole Tribe v. 755 (2002) (holding that Eleventh Amendment."1 that revolution much farther in the direction of an undue centralization of power would run against a popular instinct far stronger than party allegiance has ever proved to be. 1. Report (December. 23-25 (1989) (Stevens. dissenting) (attributing "two amendment" argument to Justice Stevens's concurring opinion in Pennsylvania v. see Federal Maritime Commission v.
cf. in 1875. III"'). 140 It is no accident that the case arises after the Civil War. Louisiana's debt repudiation coincided with "Redemption. at 302 (describing sectional reconciliation as "a peace settlement on southern terms")..16 (Souter. J." Fallon et al. at 35-37. 143. 1996) [hereinafter Fallon et al. but this jurisdictional grant was repealed only a year later. see also Gillette. at 121 (Souter. Hart & Wechsler's The Federal Courts and the Federal System 1051 (4th ed. Seminole Tribe. Kutler. see also Richard H..141 Hans.J. See id. 2021 2003 .103 Colum.S. sued the state in federal court in 1884 for violating the Contracts Clause by repudiating its debt on bonds issued to finance Reconstruction expenditures for public improvements. 1048.S. Rev. Seminole Tribe. 517 U. the Court held for the first time that a state is immune from suit in federal court where one of its own citizens alleges the state has violated federal constitutional law. et al. supra note 47.. Souter suggests. at 69-70. id." Id.1.. These were followed. The so-called "Midnight judges bill" of 1801 "did provide for federal jurisdiction in cases presenting federal questions. L. Hart & Wechsler. although Souter does not go so far. the opinion's muscular theory of state sovereign immunity can be read to imply judicial endorsement of the Compromise of 1877-ensuring that southern states would not be burdened with federal court litigation to fundamental principle of sovereign immunity [that] limits the grant ofjudicial authority in Art. at vii. As in other southern states. at 15-16. dissenting) (conceding that Redemption is not the only possible explanation for the holding in Hans). Hans.. Hayes. supra note 140. But see id. 140. Hart & Wechsler]. Fallon. a citizen of Louisiana. so I repeat only the pertinent aspects borrowed from scholarly commentary by the Seminole Tribe dissent. at 349 n." 14 3 Indeed. at 56-57. 380 (insisting that "retreat" from Reconstruction began in early 1870s as Congress and President struggled with measures to enforce just-ratified Amendments). 143. Hart & Wechsler.S. 88. "it is not wholly surprising that the Hans Court found a way to avoid the certainty of the State's contempt. dissenting). HeinOnline -.. see also id. Since any judgment against Louisiana would have been difficult to enforce without a federal military presence there.2003] CONSTITLTION AS COUNTERMONUMENT 2021 In Hans. supra note 137. dissenting). 134 U. at 120 (Souter. 357. when the trustworthiness of (southern) state courts enforcing federal law became suspect. With Reconstruction came a series of civil rights bills and other statutes conferring jurisdiction for enforcement actions and other suits on federal courts and permitting (sometimes requiring) removal of suits initially filed in state courts. at 121 n. 517 U. Indeed. at 363-85. Hyman & Wiecek. there was no general federal question jurisdiction in federal courts before 1875. when the Republican Party agreed effectively to end Reconstruction and to withdraw federal troops from the South in return for Southern acquiescence in the decision of the Electoral Commission that awarded the disputed 1876 presi14 2 dential election to Rutherford B." the national repudiation of Reconstruction and the return to "home rule" for white southerners: The turning point in the States' favor came with the Compromise of 1877. On Redemption and the Compromise of 1877. Fallon et al. by "an enduring grant of general federal question jurisdiction. see infra note 162. 363. supra note 140. J. finally. at 349. 333-34. Jr. The history of the case is well known.. 142. 141. supra note 75. at 349.
2022 2003 . 483.."'1 47 However authoritative this kind of double move (a blend of what Robert Post calls "historical" and "doctrinal" interpretation) 14 may be in other settings of constitutional law.. id.. . See 347 U. the survival of states' primordial right to sovereign immunity is assured by a double movement of constitutional interpretation.S. L. 146. I say "imagined" because. .. Comm'n v.. dissenting) (discussing history of sovereign immunity doctrine). See supra note 93. 814 (1999) (Souter. Theories of Constitutional Interpretation. dissenting) (describing Court's view of state sovereign immunity as "true neither to history nor to the structure of the Constitution"). both old and new. which found that historical sources on "circumstances surrounding the adoption of Fourteenth Amendment . not just state legislatures and executive offices. are inconclusive": We must instead look to the effect of segregation itself on public education . 743. J. 535 U. Hans now even works in concert with Boerne to bar congressional abrogation of state sovereign immunity under the Enforcement Clause of the Fourteenth Amendment-the one unavoidable source of congressional authority to subject the states to 45 suit.103 Colum. Mar. 489. HeinOnline -. as the dissenting opinions show.' As with solicitude for areas of traditional state concern and the worry about centralization of police powers under the Commerce Clause and the Fourteenth Amendment. how can anyone assail the cramped view of the Reconstruction Amendments the survival thesis requires? Even Brown v. See Fed. Robert Post. 706. 18-23 (1990). Board of Education. 492-93 (1954). the content of these first principles and the historical context of their emergence is hotly contested. 535 U. 762-808..C. it irretrievably obscures the significance of the Reconstruction Amendments. Fed. 778-81 (2002) (debating implications of Founding). Rev.S. dissenting) (disputing majority's interpretation of historical evidence regarding sovereign immunity). Mar. at 751. at 95-99 (Stevens. at 158-59 (Souter. But the move persuades precisely because it makes it difficult to articulate just what has been lost or obscured.. 145. Maine.S. Seminole Tribe. J. 30 Representations 13. The revivalist majority both restates imagined "first principles" of federalism.2022 COLUMBIA LAW REVIEW [Vol. The Hans Court could hardly have been unaware that Redemption brought white supremacists into control of state courts. 144 And the strong view of dual sovereignty in Hans explains the opinion's central place in the federalism revival. 103:1992 force compliance with constitutional mandates. 527 U. or even to 1896 when Plessy v. 147. J. the Court's boldest effort to breathe life into Section 1 of the Fourteenth Amendment. Comm'n. S. State Ports Auth. 148. If the Reconstruction Congress and Court embraced the survival thesis. 517 U. [W]e cannot turn the clock back to 1868 when the Amendment was first adopted.S. 149 144. 149. We must consider public education in light of its full development and its present place in American life throughout the Nation. Ferguson was written.S. Alden v. balked at the task of challenging segregation on the terrain of constitutional history. 146 and reinscribes the collective memory of Reconstruction-era officials to explain why the Reconstruction Amendments did not alter the "constitutional blueprint.
supra note 121.S. in Radical Republicans. "There is nothing in this Id. supra note 75. at 349. Lincoln Reconsidered] (describing views of Radical Republicans). Of course. cf. see.2003] CONSTITUTION AS COUNTERMONUMENT 2023 The federalism revival thus presents the problem of remembering an absence: How can we recover meaning the Reconstruction Amendments appear never to have been given? 1511 Within a monumentalist mode of thinking about federalism and Reconstruction. Charles Sumner. 1869). Or. Indeed. Brandwein. at 484. 1869). Presbyterian & Theological Rev. Speech at Lyceum Hall. supra note 75. Imagined first principles will always overshadow the events surrounding Reconstruction. 1866." (citing Brotherhood of Liberty. Brandwein. supra note 75. supra note 76. Justice and jurisprudence could not coexist for blacks so long asjurisprudents chose to favor states over citizens. Senate (Feb. Address Before a Boston Audience (Dec. The Present Crisis. Address Before the U. see also Hyman & Wiecek. at 499-500 (describing book written in 1889 by black lawyers) ("By 1883 federal judges had chosen. Economic Order. Scheiber. Justice and Jurisprudence: An Inquiry Concerning the Constitutional Limitations of the Thirteenth. We Ask of Congress. 481-84. in Radical Republicans. 2023 2003 . the Reconstruction Amendments may appear to mean even less than they say. never given by "authoritative" institutional actors. and Fifteenth Amendments (Negro Univ. Thaddeus Stevens. Oct. George L. Loring. Foner. 1866). the Court's late nineteenth. in effect. to walk around the purposes of the framers of the Amendments and to pervert their effects.S. at 100-18 (discussing centralization and expansion of federal power in post-Civil War years). 1985) (describing cases striking down state legislation on grounds that laws violated Due Process Clause of Fourteenth Amendment). L. at 96-184 (describing Warren Court's difficulties with history of Reconstruction Amendments).103 Colum. e. at 231.and early twentieth-century detour into substantive due process-using the Due Process Clause of the Fourteenth Amendment to strike down state legislation regulating nascent industrial capitalism-was predicated on a diminished concern for state sovereignty. Rev. supra note 75. 353-58. at 251-61 (same). HeinOnline -. The Political Crisis. supra note 75. 236-37. in Radical Republicans. 150. A History of American Law 358-60 (2d ed.g. See David Donald. Fourteenth. supra note 76.. at 478. in Radical Republicans. Cf. on the Assassination of Abraham Lincoln (Apr. at least. in the long shadow of robust federalism. See Lawrence Friedman. supra note 47. For the views of various contemporary radical figures. the Warren Court's failure to address the historical complexities surrounding the drafting and ratification of the Fourteenth Amendment during the Second Reconstruction arguably opened the door for the federalism revival. to reamend the Reconstruction Amendments. Prentiss. House of Representatives (May 8. in many ways. 487-91. frozen in time. at 42-60 (examining tensions in moderate Republican views prior to ratification of Fourteenth Amendment). As Robert Musil writes. receding into obscurity. And. 26. Am. may literally become mere monuments. supra note 75. Address Before the U. perhaps even vanishing entirely from collective consciousness and constitutional law. George B. Wendell Phillips. answers to this question cannot emerge. 4. the embarrassment of the Lochner era merely underscores how far the Court and other authoritative institutional actors were from seeing the Reconstruction Amendments as blacks and Radical Republicans did. The impulse to build a reassuring narrative from those events will always suppress their more disturbing and more radical implications. But revivalists have largely forgotten this detour-especially its implications for the legitimacy of the survival thesis-and. Press 1969) (1889))). Salem.. Lincoln Reconsidered 103-27 (1956) [hereinafter Donald. 321-25. at 318. 1865). reprinted in Radical Republicans.
in Posthumous Papers of a Living Author 61. supra note 1. in History. 255-59 (Austin Sarat & Thomas R. On the perverse effects of the intent requirement for establishing a denial of equal protection. at 13. tendency for the celebration to oversim- plify. 245-48 (1976). 128-29 (1981) (holding that closure of street in predominately black neighborhood is "a routine burden of citizenship" and not "a form of stigma so severe as to violate the Thirteenth Amendment"). 152. John Hart Ely. A Commission has been established to coordinate the celebration. 103:1992 world as invisible as a monument." 154 And he refuses to join any "blind pil151. Patriotic feelings will surely swell.' Immediately though. His Reflections on the Bicentennial of the United States Constitution. and the Law 249. 426 U. portions of the Amend152 ments are already approaching invisibility. Brandwein. . 100. supra note 54. L. To recover meaning the Reconstruction Amendments have never been given. see Tribe. offered in the midst of a year of national commemoration. we must begin by resisting the mode of historical consciousness on which the federalism revival depends. He begins by acknowledging the temptations the year will provide for monumentalist historical reflection: The year 1987 marks the 200th anniversary of the United States Constitution. 153. Karst. at 548-59. supra note 54. prompting proud proclamations of the wisdom. Monuments.2. On the Citizenship Clause. 74-81 (1873). see generally Kenneth L. 229. 2024 2003 . 451 U. The Supreme Court.. quoted in Young. Robert Musil. The official meetings. 1976 Term-Forward: Equal Citizenship under the Fourteenth Amendment. Kearns eds. .103 Colum. Rev. supra note 53.) 36. Democracy and Distrust 22-30. supra note 76. 91 Harv. Like many anniversary celebrations. CONSTITUTION AS COUNTERMONUMENT A. 1 (1977). Marshall's Theory of ConstitutionalDemise: A Revealing Reversal? Justice Thurgood Marshall understood the need for this turn.. the plan for 1987 takes particular events and holds them up as the source of all the very best that has followed. see generally The Slaughter-House Cases. see also City of Memphis v. 83 U. On narrow construction of the Thirteenth Amendment. self-consciously plays upon the symbolic and doctrinal significance of collective memory for constitutional interpretation in America. Memory. Davis. at 1. he voices deep skepticism about the monumentalist project-the "unfortunate . see infra text accompanying notes 232-237. On the erasure of the Privileges and Immunities Clause of the Fourteenth Amendment.2024 COLUMBIA LAW REVIEW [Vol. Rev. 154.. at 61 & n. Hence the turn to countermemory. Marshall. 196 (1980). IV. Eridanos Press 1987) (1957). at 1502-14. Tribe. Badges. Greene. and overlook the many other events that have been instrumental to our achievements as a nation. and Brands: Discriminating Marks in Legal History. L. set forth in Washington v. essay contests. foresight. 1999) (linking narrow construction of Thirteenth Amendment to acceptance of Taney's metaphor that only slavery-and not mere discrimination-"stamp[ed] blacks with a badge of servitude").S. and festivities have begun .. (16 Wall. Id. Stigmas.S. and sense of justice shared by the framers and re53 flected in a written document now yellowed with age. Brook Thomas..S." '' Indeed. 61 (Peter Worstman trans. HeinOnline -.
that we hold as fundamental today. and its respect for the individual freedoms and human rights. The economic interests of the regions coalesced: New Englanders engaged in the "carrying trade" would profit from transporting slaves from Africa as well as goods produced in America by slave labor. at 2. This is the context behind Marshall's seemingly radical assertion that 157 "[w]hile the Union survived the civil war. Id. at 5.103 Colum. of recovering a meaning authoritative interpreters have never given to the War and the Amendments that followed. The claim. that we not overlook the momentous events which followed. the fourteenth amendment. the Constitution did not. a civil war. and thereby lose our proper sense 1 58 of perspective. And yet almost another century would pass before any significant recognition was obtained of the rights of black Americans to share equally even in such basic opportunities as education. and momentous social transformation to attain the system of constitutional government. On the concessions to slavery. doctrinally. Id. he flatly insists. liberty. more promising basis for justice and equality. and property of all persons against deprivations without due process. Id. at 4. 156. Marshall said: The record of the framers' debates on the slave question is especially clear: the Southern states acceded to the demands of the New England states for giving Congress broad power to regulate commerce. The perpetuation of slavery ensured the primary source of wealth in the Southern states." "[W]e must be careful. But the call in his brief speech ends just where our inquiry must begin. (emphasis added). 157. Id. for Marshall.20031 CONSTITUTION AS COUNTERMONUMENT 2025 grimage to the shrine of the original document" for a government that was "defective from the start. in some sense. directly undermined the moral and legal authority of the document they crafted. ensuring protection of the life. 158. He immediately added: In its place arose a new. What does it mean. housing. requiring several amendments. was not hyperbole."' 156 And their moral compromises." he admonished. But the restatement is pregnant. Marshall's assertion of constitutional demise is a reproduction in (more or less) precisely duplicated 155. at 4. and guaranteeing equal protection of the laws." Marshall's speech is a call to countermemory-a call to resist. Id. L. merely restates the problem of remembering an absence. HeinOnline -."'15 5 The Framers. he reasons. 2025 2003 . to say that the Constitution did not survive the Civil War? The question. and counted equally. 5. in the very act of commemoration. and denying both to Negroes. were morally compromised by their concessions to slavery in Philadelphia-by "the contradiction between guaranteeing liberty and justice to all. the monumentalist impulse either to forget or diminish the profound moral and constitutional failings of the Founding. in exchange for the right to continue the slave trade. Rev. at 2. and employment. and to have their votes counted. Id. "when focusing on the events which took place in Philadelphia two centuries ago.
39th Cong. emancipation. but if an affirmative response is to persuade. ed. 160. supra note 76. at 26-27 (describing emancipation as a "revolution"). passim. marking a new constitutional framework. at 110-19 (describing emerging black political consciousness after emancipation and Appomattox). in short. My Bondage and My Freedom (1855). it is always worth while to see the effect of reversing some particular elements in its manifest content. 228-39. Staunch Democrats.. They are structurally significant. supra note 76. Read this way. See Sigmund Freud. & ed. but of the morally compromised instrument that made such national atrocities possible and the irresistible temptation to "save" certain principles animating that instrument from the moral taint of the inequality and oppression it protected. see Foner. 391-92 (Henry Louis Gates. 1965) (1900) ("[l]f a dream obstinately declines to reveal its meaning. expired with secession." (emphasis added)). it must first confront and resolve the problem of authority in Marshall's theory of constitutional demise. after which the whole situation often becomes immediately clear..2026 COLUMBIA LAW REVIEW [Vol. 1994) (noting his prewar break with William Lloyd Garrison and his realization that the Constitution is "in its letter and spirit. 161. and Radical Republicans may have believed the Constitution of 1787.. at 24-25. robust federalism). 16 1 But those who held the center did not. Remarks by Representative Samuel J. at 5 ("It is crucial to understand that Moderate Republicans saw their reforms. On the views of blacks. cf. blacks. On Radical Republicans. Lincoln's exertions of national power for the War effort. id.. supra note 75. Globe. on this register.. something always already exposed 15 9 to the cathectic predations of collective memory. 103:1992 negative space of the survival thesis-a categorical rejection not simply of slavery and secession. Frederick Douglass.' 1 On what grounds may we challenge the privileged mnemonic status of the Reconstruction Court and other centrist institutional actors? 159. 2408 (1866) (statement of Samuel J. See Brandwein. an anti-slavery instrument"). to annul and to destroy the Constitution and to centralize this Government. or federal interventions during Reconstruction. including application of the Bill of Rights to the states. and thereby to take away from the people the privileges which that Constitution formed by our forefathers gave to them . and while I was in favor of putting down the rebellion when it emanated from the South.103 Colum.. stand as countermonuments to a failed national project-a failure of constitutional democracy we can never disown. 2026 2003 . a provocative and revealing "reversal" not at all unlike Hoheisel's negative form monument-an invitation to remember something we have always already forgotten. Randall)). I believe. as they knew it. 1st Sess. The Reconstruction Amendments. Brandwein. I am now today in favor of preventing the success and for putting down that party which seeks to change. Can we accept the invitation? We must. supra note 75. surely. as a HeinOnline -. supra note 75. Rev. see Foner. Radical Republicans. Jr. I am against anybody who seeks to overthrow the Government or the Constitution. a radical break with certain first principles of the Founding (among them. The Interpretation of Dreams 363 (James Strachey trans. at 33 (quoting Cong. L. Randall of Pennsylvania during debate on the Fourteenth Amendment capture the spirit of Democratic concern for the fate of the Constitution in the hands of Reconstruction reformers: I am not a defender of rebellion in any particular. the Amendments signify far more than their bare terms suggest. Marshall's statement is. reprinted in Autobiographies 103.
in his critique of the Framers' compromise and the clear moral failure of the centrists' eventual concessions to the "Redeemers. at 527. at 241-43. indeed. C..".. . C. 548 (1896) ("[T]he enforced separation of the races.. Rev. and ceases to be the special favorite of the laws"). They were deeply committed to returning the nation and all states as quickly and thoroughly as possible to prewar arrangements. 1877 marked a decisive retreat from the idea. see also Hyman & Wiecek." announced the Chicago Tribune.. supra note 75.. . . "will disappear from the field of national politics. became all but invisible. 109 U. 3. "had got into the hands of the very men that held us as slaves.. Hyman. Reunion and Reaction: The Compromise of 1877 and the End of HeinOnline -." lamented black Louisianan Henry Adams.. [T]he "withdrawal" of troops marked a major turning point in national policy. its initial and primary beneficiary. as applied to the internal commerce of the State. supra note 76. [B]y the mid-1870s. shared in the mood of national reconciliation. with "reform" now suggesting rule by the "best men" rather than the desire to purge American life of racial inequality. 2027 2003 . Plessy v."). 1974) (arguing that Compromise of 1877 reconciled northern and southern whites through mutual political abandonment of blacks). "seems to have reached a finality. Vann Woodward. C. 162.. 475. violence. 564-601. supra note 75. see Brandwein. 25 (1883) (stating that "there must be some stage ."' 62 Is this enough to set aside the narrow grant of federal power consistent with traditional limitations of federal power.39 (describing Giles as 'judicial emasculation" of Fifteenth Amendment). Origins of the New South. The Civil Rights Cases. Foner. 163 U. at 298-99. survivors of the Radical generation seemed relics of a bygone era . For the Court's endorsement of Redemption and home rule see Giles v. will have nothing more to do with him. at 298-99 ("In constitutional terms the Republican centrists who became the architects of Reconstruction were constrained conformists. . by the 1880s. Gillette. 537. Ferguson.S. Vann Woodward. See generally Gillette. at 499. neither abridges the privileges or immunities of the colored man . but did not believe the legitimate rights of the states had been destroyed. On the moral failure of Redemption. at 216 (1971) (arguing that the Civil Rights Cases amounted to a 'juristic fulfillment of the Compromise of 1877"). Harris. supra note 75 (tracing abandonment of Reconstruction as national policy). . born during the Civil War. Benedict. passim (discussing constitutional conservatism of Republicans during Reconstruction). nor denies him the equal protection of the laws ). Id. secession and slavery always excepted. 189 U.103 Colum. Id. Vann Woodward.. 417 n. at 88 ("Socalled redeemers and Southern legislatures were determined to accomplish legally what they had been working toward by fraud. That sense lost. it gained a hold on respectable Republican opinion. Foner adds that as a result of Redemption: "The whole South-every state in the South. at 509 ("Clearly. white America lost the sense of moral anger and escalating common national purpose that brought it to emancipation and then to the protection of civil rights as they understood them . at 582 (citations omitted). The Strange Career of Jim Crow 69-71 (3d ed. L. supra note 137. offering a convenient explanation for Reconstruction's "failure. 1877-1913. Foner. Preserving. in the progress of [a former slave's] elevation when he takes the rank of a mere citizen.").20031 CONS77TUTION AS COUNTERMONUMENT 2027 There is moral authority in Marshall's theory. even as racism waned as an explicit component of the Northern Democratic appeal. of a powerful national state protecting the fundamental rights of American citizens. "The long controversy over the black man." . supra note 75. .. 453-54 (noting that Moderate Republicans "accepted the enhancement of national power resulting from the Civil War. supra note 47. as a nation.").. Foner observes: Ironically . Many antislavery veterans. 259. Henceforth. . and intimidation: the effective exclusion of black citizens from public life..S.S. More Perfect Union."). the nation. 486-88 (1903) (denying constitutional challenge to Alabama's voting restrictions).." echoed The Nation. the Negro. supra note 137." . or the traditional principles of federalism eradicated")." "The negro.
But to avoid the "counter-majoritarian difficulty"' 166 and the charge of radical indeterminacy. at 25 (noting that responsive interpretation "contains within it no particularly persuasive response to the counter-majoritarian difficulty"). [I] t has taken a century and has cost their successors much sweat and blood to prove that they created a nation. "Responsive interpretation" is therefore not entirely withoutjuridical authority.2028 COLUMBIA LAW REVIEW [Vol. far from a commemorative speech. 165 He was also speaking for the Court in Holland. of course. 252 U. either of past precedent or of past consent. . L.. G. The case before us must be considered in the light of our whole experience and not merely of what was said a hundred 64 years ago. was not the only Justice to have espoused the view that constitutional authority may be derived from the moral consequences of our national experience-from. 103:1992 centrists' intentions and the cases purporting to give expression to them? Marshall.)).103 Colum. at 24. Post. . we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. it is not terribly short of it. responsive interpretation always places a court in . Holmes knew of what he spoke in the way of sweat and blood to make a nation from a confederation of states. . 1 Even if this statement is something short of Marshall's theory of constitutional demise. Id. 164. . [And] such ends can provide the basis for adjudication only if they can also 'be made objective enough and authoritaReconstruction 245 (1951) (calling the Civil Rights Cases "a sort of validation of the Compromise of 1877"). supra note 148. at 30. at 23 (quoting Missouri v. 166. Holland: When we are dealing with words that are also a constituent act. Edward White. 416. Post. 163. "our common commitment to the flourishing of the mutual enterprise of nationhood. HeinOnline -. J. supra note 148. and. . Justice Oliver Wendell Holmes: Law and the Inner Self 49-86 (1993) (describing Holmes's military service in Civil War)..S. butjustified in the end only by the wisdom of its own insight. like the Constitution of the United States. 2028 2003 . as Robert Post puts it. Holland. Post adds: By refusing to interpret the Constitution as if it were a source of external compulsion. any responsive interpretation must accomplish at least two tasks: "[It] must be oriented toward the kind of general ends that have been closely linked over the long run to an historical instantiation of national identity. his statement came in a majority opinion denying that the reserved powers of the states under the Tenth Amendment could prevent enforcement of an environmental protection treaty. Rev. 433 (1920) (Holmes. an exposed position. purporting to speak for the fundamental ethos of the contemporary community. Thus the enterprise of responsive interpretation can become the locus of an overt struggle for the definition of national identity. at least. Id.. 165."' 63 Oliver Wendell Holmes provided "the classic statement" of what Post calls "responsive interpretation" in Missouri v.
CONSTITUTION AS COUNTERMONUMENT
tive enough to control adaptive rule making.' '' 167 Marshall's call to countermemory appears to run aground on both fronts. As the Rehnquist Court's double move powerfully suggests, the survival thesis enjoys a closer link to historical instantiations of our national identity than any claim that the Reconstruction Amendments represent a new constitutional order. Far from calling on the authority of the "national ethos," countermemory is an affront to that ethos-it is, in this sense, beyond the standard discursive domain of responsive interpretation. And constitutional demise is, as a bare assertion, hardly "specific enough to engender 68 legal consequences" in concrete cases.' Perhaps it is well then, that Marshall was speaking in Hawaii, to patent lawyers, and not for the Court. Indeed, perhaps in remembering the events surrounding the War and Reconstruction, constitutional theory is caught between the Scylla of Marshall's provocative reversal and the Charybdis of the survival thesis. The more we see a constitutional rupture in the events between 1860 and 1877, the more indeterminate and illegitimate the doctrinal consequences. The more we see constitutional continuity between those events and antebellum institutional commitments, the more legitimate and determinate are the doctrinal consequences, but also, the more narrow and insignificant those consequences must be. In the standard discursive framework of constitutional theory, it seems, these concessions are inescapable. Yet, from the perspective of countermemory, there is a perverse desire animating them. To doubt the legitimacy of Marshall's theory of constitutional demise, to invest exclusive authority in the will of the centrists, to accept the survival thesis, however grudgingly, is to fall prey to the very desires that crystallized in the Compromise of 1877, the same desires that would have ended Reconstruction at Appomattox, ended the War without emancipation. Countermemory provides a method for testing the legitimacy of these desires-for exposing them not merely as a form of resistance to the deep moral and doctrinal implications of the War, emancipation, and Reconstruction, but as a form of resistance born of fundamentally base impulses rather than innocent fealty to first principles. Thus, like the public animus directed at the Gerzes' sinking monument against fascism, doubts about the constitutional authority of Marshall's theory, doubts about the legitimacy of doubting the centrists' desires, are singularly revealing forms of resistance-resistance not unlike the trouble we have when trying to recall the content of our dreams. "The forgetting of dreams," Freud writes, "remains inexplicable unless the power of the psychical censorship is taken into account."' 69 With Freud, then, we
167. Id. at 24 (quoting Philippe Nonet & Philip Selznick, Law and Society in Transition: Toward Responsive Law 77 (1978)). 168. Id. 169. Freud, supra note 159, at 555. His elaboration is worth quoting: Doubt whether a dream or certain of its details have been correctly reported is... a derivative of the dream-censorship, of resistance to the penetration of the
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might say that trouble recalling the significance of Reconstruction remains inexplicable unless the powerful censorship of national collective memory is taken into account. This is the "proper sense of perspective" I take Marshall to be calling for. If his call is heeded, constitutional analysis of the Reconstruction Amendments cannot end (authoritatively, in any event) by embracing the results of the censorship of collective memory. B. Wanting Closure So massive was the failure of democracy, so abhorrent the trauma to ° our national conscience, our "constitutional faith,"' 71 so profound the 71 desire for the "savage fraternal conflict" to end, that we began to censor, to forget, the implications of slavery, fratricide, emancipation, and reconciliation before even the first shot at Fort Sumter. But if the circumstances leading to and following secession, the War, and Reconstruction can be recalled without caving to the monumentalist desire to find reassurance in them, Marshall's theory can be historically instantiated through countermemory, and perhaps even explicated in terms that can guide adjudication. This is not the place for a new narrative of Reconstruction, paving the way for grand, new expositions of the Reconstruction Amendments. Perhaps such histories can be written, but even professional historians, it must be conceded, have faltered as badly as the Court in the effort to resist the predations of collective memory and draw stable meaning from the "bewildering complexity of conflicting interests" that marked Recondream-thoughts into consciousness. This resistance has not been exhausted even by the displacements and substitutions it has brought about; it persists in the form of doubt attaching to the material which has been allowed through.... If, then, an indistinct element of a dream's content is in addition attacked by doubt, we have a sure indication that we are dealing with a comparatively direct derivative of one of the proscribed dream-thoughts.... If any doubt is thrown upon the value of the element in question [by the analyst], the psychical result in the patient is that none of the involuntary ideas underlying that element comes into his head. ... [I]t is precisely the fact that doubt produces this interrupting effect upon an analysis that reveals it as a derivative and tool of psychical resistance. Psychoanalysis is justly suspiciots. One of its rules is that whatever interrupts the progress of analytic work is resistance. a Id. at 554-55 (first emphasis added). The suppressed dream thoughts of the nation on equality, if not federalism, were targeted by activists in the Second Reconstruction. See Taylor Branch, Parting the Waters: America in the King Years 1954-1963, at 881-83 (1988) (describing events surrounding Martin Luther King's I Have a Dream speech); Martin Luther King,Jr., I Have a Dream, Speech Delivered at the Lincoln Memorial (Aug. 28, 1963), in The Norton Anthology of African American Literature 80, 80-83 (Henry Louis Gates Jr. & Nellie Y. McKay eds., 1997). 170. Sanford Levinson, Constitutional Faith 4 (1988). 171. Arthur Schlesinger, Jr., The Causes of the Civil War: A Note on Historical Sentimentalism, 16 Partisan Rev. 969, 969 (1949).
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The events are, to say the least, not merely complex, but
172. Howard K. Beale, On Rewriting Reconstruction History, 45 Am. Hist. Rev. 807, 810 (1940). Historians have swung wildly from endorsing the Redeemers' view of Reconstruction as a radical, corrupt intrusion of northerners on behalf of undeserving blacks to the view that Reconstruction was an essentially conservative reform movement defined by respect for federalism. See id.; see also Schlesinger, supra note 171, at 976-78 (challenging revisionist claim that Civil War was a "needless war") ("I cannot escape the feeling that the vogue of revisionism is connected with the modern tendency to seek in optimistic sentimentalism an escape from the severe demands of moral decision"; "By denying themselves insight into the moral dimension of the slavery crisis... the revisionists denied themselves a historical understanding of the intensities that caused the crisis."); Francis B. Simkins, New Viewpoints of Southern Reconstruction, 5J. S. Hist. 49, 51 (1939) ("The capital blunder of the chronicler of Reconstruction is to treat that period like Carlyle's portrayal of the French Revolution, as a melodrama involving wild-eyed conspirators whose acts are best described in red flashes upon a canvas .... This is at best the picturesque pageantry of the artist; at worst, the cheap sensationalism of the journalist or the scenario writer."); T. Harry Williams, An Analysis of Some Reconstruction Attitudes, 12 J. S. Hist. 469, 470 (1946) (stating that "revisionists" have shown "that the national reconstruction program was radical only in a superficial sense in that it gave political power to the Negro but failed to provide economic power through the promised confiscation and ownership of land, and thus that because the position of the Negro had no lasting basis his rule was easily overthrown"); C. Vann Woodward, Our Past Isn't What It Used to Be, N.Y. Times, July 28, 1963, § 7 (Book Review), at 1 ("Northerners complain that the Rebels have won the battle of books."). Similar views may be found in Donald, Lincoln Reconsidered, supra note 150, at 103-09; Foner, supra note 75, at xix-xxvii; Harold H. Hyman, Introduction to Radical Republicans, supra note 75, at xvii, xvii-lxviii; Benedict, Preserving, supra note 137, at 66-67. As Bernard Weisberger summed up the problem: Reconstruction confronts American writers of history with things which they prefer, like other Americans, to ignore-brute power and its manipulation, class conflict, race antagonism.... Reconstruction cannot be properly "gotten at" by the wellworn roads of agrarianism, sectionalism, or constitutional analysis. It cannot be approached without perhaps requiring of American historians that they yield up some of their marvelous ability to read unity, progress, and patriotism into every page of the American record-that they face problems which all their piety and wit cannot dismiss or solve with credit to all. Bernard A. Weisberger, The Dark and Bloody Ground of Reconstruction Historiography, 25J. S. Hist. 427, 447 (1959) (emphasis added). Reconstruction histories abound, but the main schools of thought, beginning with the "Dunning School," can be traced in William A. Dunning, Essays on the Civil War and Reconstruction and Related Topics (1898); John W. Burgess, Reconstruction and the Constitution (1902); Walter Lynwood Fleming, The Sequel of Appomattox: A Chronicle of the Reunion of the States (1919); Claude G. Bowers, The Tragic Era: The Revolution After Lincoln (1929); Howard K. Beale, The Critical Year: A Study of AndrewJohnson and Reconstruction (1930); W.E.B. Du Bois, Black Reconstruction in America: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860-1880 (1935); E. Merton Coulter, The South During Reconstruction, 1865-1877 (1947); Donald, Lincoln Reconsidered, supra note 150;John Hope Franklin, Reconstruction: After the Civil War (1961); James M. McPherson, The Struggle for Equality: Abolitionists and the Negro in the Civil War and Reconstruction (1964). More recent accounts include Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863-1869 (1974); Brandwein, supra note 76 (arguing that the Reconstruction Court suppressed competing interpretations of significance of War and Reconstruction Amendments); Foner, supra note 75; James M.
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supra note 47. proposes Negro suffrage. the purpose of countermemory. L. at 331. at 469. Fisher's comment reflects the sentiments of "many northerners" (and doubtless many southern whites). . see also Weisberger. As quoted in Hyman & Wiecek.growing in power.. federalism and Northern Democratic opposition to Reconstruction). He disliked the continuing employment of war powers in the South once the fighting ended. 103:1992 overdetermined. supra note 76. I hope to show that. Philadelphia lawyer and staunch defender of Lincoln's constitutional creativity during the War. see also Brandwein. the double move of the Rehnquist Court's federalism revival is perniciously complacent. The war over.. supra note 172.1 McPherson.. Abraham Lincoln and the Second American Revolution (1990). see supra note 162 (documenting concatenation of racism. Interpreting the Reconstruction Amendments as countermonuments means reading them as refusing to passively accept the burden of memory-as representing rather than suppressing "the terrible complexities of Reconstruction"' 73-without. primarily because they were novel and rasping. supra note 127.. is thus considerably more humble.. at the same time.103 Colum. taken seriously. Indeed.5. Unusual circumstances were necessary before Fisher was prepared to sustain national limitations on 75 state power. Rev. The war had been waged to preserve the Union of states. Sidney George Fisher. However repugnant as diminutions of civil rights. "A People's Contest": The Union and Civil War. by using countermemory to expose the perverse desire underlying the survival thesis and certain facts the survival thesis must suppress in order to reassure and persuade. it may help avoid the generic liabilities of such theory in interpreting the paradoxes of Reconstruction. at 447 (commenting on "frustrating complexity" of Reconstruction period). at 371 (describing moderate Republicans' "ever-present constitutional conservatism and racial ambivalence"). . Marshall's provocative reversal is not a dead end of constitutional theory. Fairman. 1861-1865 (1988). In a diary confession. federalism and desire for sectional reconciliation behind Redemption). supra note 172. at 27-60 (detailing nexus between postwar views on race. 174. My purpose. whatever else follows doctrinally from this memory work. 2032 2003 .No sooner have we abolished slavery than a party . 173. who wanted constitutional creativity to end with the War even if that meant leaving the fate of blacks to their former masters. gave perfect expression to the mixture of racism and deep desire for closure and reconciliation that pervaded the nation during Reconstruction: It seems our fate never to get rid of the Negro question . if not also constitutionally suspect. Id. succumbing to radical indeterminacy. id. the Black Codes did express state self-determination on internal affairs. at 254 n. . As Hyman and Wiecek observe. Gillette. [sic] Fisher was swiftly losing interest in Negro questions. supra note 75. especially over extended periods of time. Williams.. 175. at 258 (concluding that "increasing opposition HeinOnline -. Phillip Shaw Paludan.2032 COLUMBIA LAW REVIEW [Vol. so that the problem-What shall we do with the Negro?-seems to be as far from being set174 tled as ever.
to almost entirely abandon "the to federal enforcement and intervention in the South and a distaste for reconstruction rights were all symptoms of a deeper racist reaction"). at 402.74. 545. 370 (describing growing desire to achieve closure by simply conceding local control in the South).2003] CONSTITUTION AS COUNTERMONUMENT 2033 Respect for state sovereignty (and the twin theory that the War was fundamentally about preserving the Union) thus became a powerful. 176. 375 (quoting an English observer's 1874 assertion that "there is a growing feeling in the North that the South should be governed according to Southern ideas. there is the misfortune.103 Colum. as slaves. 38-41. Often. Gillette. openly expressed disdain for blacks and impugned their capacity for.. an intractable economic depression. northern misinformation and denial about violence against blacks in the South. The Union as It Is. Fairman. it was remarkably direct. were not the only forces behind the desire for closure. supra note 127. Racism and federalism. 84. "the negro is not. Political corruption. HeinOnline -. publicly acceptable. the Constitution as It Was. Sometimes the appeal to race was oblique . 547-53. and naivety about the relationship between legal change and social reform. at 31-32. 83 n. supra note 75. at 27. 214-15." the Cincinnati Enquirer announced at the end of the war. 186. Paradoxically then. see Brandwein. for nearly another century. 377 (arguing that. 177. at 171." Arthur Schlesinger insists.." Foner. and that the Negroes should be left to shift for themselves"). supra note 171. id. the moral and egalitarian principles behind abolition were real (politically. "Slavery is dead. at 138-42. 370-71. "released deep sentiments of guilt and remorse. if not personally). see generally Meister. Then.1 76 But for the centrists and wilting radicals. factionalism between both radical and moderate and northern and southern segments of the Republican party. supra note 76. at 287. '1 78 The nation's desire for closure and fraternal reconciliation in the face of that trauma was correspondingly profound. systematic southern and Democratic resistance to Reconstruction measures. it served as a reliable fortress for the perpetuation of systematic racial segregation and discrimination. 367-69. so profound that centrists like Lincoln were willing. southern Democrats' white supremacist propaganda campaign "was more effective and more durable than the northern Republicans' bloody shirt"). at 57. 2033 2003 . Redesigning. at 233-34 ("[T]he inescapable conclusion is that federalism protected slavery for the first seven decades of the nation's history. as exemplified by the Credit Mobilier scandal. "[O]ur great national trauma. id. the very constitutional principle that shielded slavery and brought the nation to war became an expedient ground for negating its results. blacks as they were-that is. Rev. supra note 76. Gillette. or right to. Schlesinger. 154-55. L. supra note 121. supra note 75. see also Brandwein. all reinforced fatigue with the "Negro question" and consensus on the importance of respecting states' rights. at 969. 228-29. 178. at 160. supra note 75. supra note 47. 430. at 191-96. and legally authoritative framework for expressing the rather perverse desire to abandon the principles of equality implicated in the War for the sake of reconciliation with southern whites. and Democrats especially. 364. supra note 75. 334. ultimately. Foner. 441-42. equal citizenship. As Eric Foner reports: The potent cry of white supremacy provided the final ideological glue in the Democratic coalition. at 339-40. See Scheiber.").. and the survival thesis became a convenient way to resist the consequences of those principles 77 without appearing to disown them." had as its unstated corollary. of course. to be sure. Many. before even the first shot at Fort Sumter.
498 (reporting Johnson's belief that southern states should be admitted 'just as they are. federalism. . 179)so profound that even with the defeat of the rebels at Appomattox." without any delay or further constitutional changes). supra note 137. supra note 75. Indep. and the Duty of Congress.2034 COLUMBIA LAW REVIEW [Vol. was that "the Thirteenth Amendment was enough. at 30.. 248. 16. Republicans remained anxious to allay southern concerns that the North saw the conflict as a war for emancipation rather than mere re-union. Hyman. 1865. supra. Letter friom Abraham Lincoln to William H. Oct. 1862. reprinted in Radical Republicans. HeinOnline -. 2000) [hereinafter Commager] (encouraging Congressman Washburne to "hold firm. No more than in the past should the citizen have federal rights against his State. First Inaugural Address (Mar. Hyman. Hyman elaborates: It is the core of the Civil War's impact. 1865)..103 Colum. at 260. More Perfect Union. as with a chain of steel" against any expansion of slavery). at 246. 34 (describing arguments equating formal abolition of slavery with eradication of all of slavery's negative consequences). constitutionally considered. Introduction to William Grosvenor. supra note 75. Almost no one foresaw in politically practical terms need for amendments beyond the Thirteenth. and an end put to the confused and perplexing state of things in which our national affairs are involved")."). at 25. at 137-38 (describing Lincoln's shift from support for the Crittendon Resolution to emancipation). 1860).. Reconstruction Proclamation (May 29. Harold M. But see Letter from Abraham Lincoln to Elihu B. no right. No need.161 (quoting Cincinnati Commercial editorial's admonition that "the people accepted [the Thirteenth Amendment] as the basis upon which all the States are to be admitted to representation. Fairman. see also Brandwein. See Abraham Lincoln. to sustain individuals' political and civil rights. much less for two more within five years . cf. id. 180. so profound. reprinted in Radical Republicans. 44-45 (Henry Steele Commager ed. that even stalwart congressional Republicans turned into "Reconstructors-in-a-hurry [like] AndrewJohnson had been in 1865" as "accelerated state restorations usurped equal rights in the priorities of the Repub179. infra text accompanying note 246 (discussing Lincoln's support for proslavery Amendment). 647-49 (Philip Van Doren Stern ed. Harold M. in The Life and Writings of Abraham Lincoln 646. that in early 1865 virtually unhampered state powers were considered fundamental for liberty. at 301. Lincoln Reconsidered. at 294 n. Cheever. 1861). 103:1992 Negro question" if doing so would bring the southern states back into the Union. and democracy. Donald. Hyman. so worthwhile because they had sufficed to win the War.. supra note 150. by the spring and summer of 1867. Introduction to George B. at 128 (President Johnson's view. 45 (refusing to compromise on expansion of slavery to territories). "[v]ery few congressmen saw anything amiss with the constitutional world in which rebel states were as unrestricted as ever. supra note 127.. id. .. 27 (describing July 1861 "Crittendon Resolution" passed by Congress to make clear that "the aim of the war was reunion. 261. 1. reprinted in Commager. See Harold M.Jan. 1861). reprinted in Radical Republicans. as to require no further alterations. Even after hostilities broke out. Victorious Americans understood their constitutional arrangements to be so strong. Hyman. no way existed for the nation to be involved in crises as it was forced to be in 1860-61. Seward (Feb. The Slaves Are Free by Virtue of the Rebellion and the Government Is Bound to Protect Them. at 45. except for 18 secession and slaveowning". at 182. not a reconstruction of race relations"). so vigorous. reprinted in The Civil War Archive: The History of the Civil War in Documents 44. 4. in vetoing 1866 Civil Rights Act. 13. 1940) [hereinafter Stern] (promising to support states' rights and endorsing proslavery Amendment). Washburne (Dec. Jatrodaction to Andrew Johnson. L. The Rights of the Nation. supra note 75. 2034 2003 . and it had executed itself. Rev. Id. New Englander.. supra note 76.
supra note 47. transcending civil liberties... supra note 75. Political Recollections. at 508 (citation omitted). L. Godkin argued that with the rebel states restored. 1867."'). supra note 75." Hyman. L. supra. in Radical Republicans. at 180 ("As early as 1871. reprinted in Radical Republicans. at 492. 181. . at 376. supra note 47. The Nation. 182. Harold M.. Military Reconstruction followed by ratification of the Fourteenth and Fifteenth Amendments. Introduction to Godkin. 327 ("Probably most Republican rank and filers considered the Fourteenth Amendment as the final necessary step in Reconstruction. Hyman & Wiecek. On others' expressed desire for closure. that the organization remain in being in order to combat race prejudice and especially to keep sentry watch over the condition of Southern Negroes." (internal citation and quotation omitted)).e. In a July 1867 editorial for The Nation. 448 (hereinafter Hyman. Godkin. 451. and which will give ample scope to the powers of the most radical reformer? E. More conservative Americans had been prepared to move on with the passage of the first Civil Rights Act in 1866. and so gigantic an abomination could never have been overthrown without an intense concentration of the public mind upon the work . 497 (arguing ratification of Fifteenth Amendment meant "the anti-slavery movement may fairly leave its client to the broad influences of civilization and society"). True Radicalism. Introduction to Wendell Phillips. Speech (Apr. Introduction to Thaddeus Stevens. Speech (Apr. noted that the 'mere mention of [Reconstruction] is almost nauseating. Hyman. survived one anxious passage only to confront another. at 450. even radicals should move on to other issues: Slavery. 2035 2003 . Editorial.. 1866). Editorial. which conditioned rebel states' readmission on ratification of the Fourteenth Amendment.").. at 318. supra note 75. Indeed. 318. according to William Gillette.103 Colum. The Policy. 378 (commenting with respect to Congress's 1867 Reconstruction Act. supra note 75. L. Harold M. 1870). at 447. rational. . and the evils growing out of it. "the most powerful political HeinOnline -. efficient-government as a primary goal. Introduction to E. at 327. 492 ("Despite the pleas of some in attendance at the April 1870 session of the American Anti-Slavery Society. at 439 ("Their sense of the necessary pace in Reconstruction quickened because they felt it essential to end unforeseen strains in administration. July 18. Hyman & Wiecek. supra note 75. Hyman. See Harold M. see also Gillette. see also Harold M.. the moderate Republican New York Times . that "nothing could stay the prevailing impatience of Congress for speedy legislation looking to the early return of the rebel districts to their places in the Union").' so profound as to have produced among Chief Justice Chase and his associates.. The Radical. reprinted in Radical Republicans. Depiction of the amendment as the Constitution's Appomattox was common . reprinted in Radical Republicans. supra note 75.. a period when the nation . at 346 (describing northern Republicans' "enthusiastic relief" and "fatalistic acceptance" that Compromise of 1877 would bring end to federal military interventions in South). Rev. 1870). and society that had appeared since Appomattox. supra note 75. Apr. 1867. politics. The Nation. finally. Introduction to William Lloyd Garrison. affirmative "relief. Wendell Phillips. Desire for closure was not unchecked-emancipation. Introduction to Godkin] ("Influential Republicans became devotees of clean-i. cheap. and concomitant enforcing legislation all testify to the presence of countervailing forces. The Fulfillment of Our Pledge. But who cannot see that there are many other great questions which have been lying in abeyance during this great struggle.2003] CONSTITLFTION AS COUNTERMONUMENT 2035 lican majority".. Julian.. 182 so profound.. Hyman. House of Representatives (May 8. Godkin. reprinted in Radical Republicans. 1866."). supra note 75. supra note 75. when the strain of Reconstruction was at an end". see Gillette. the Thirteenth Amendment. Address Before the U. have absorbed the attention of this country for some years past. Hyman. Thirty-Five Years of Anti-Slavery Agitation Fittingly Rounded Out. 9. and doubtless many others. in Radical Republicans. the membership chose overwhelmingly to dissolve. ").S. July 18.. at 447. "a heavyweight Republican periodical. George W. in Radical Republicans. 9.. at 495. L. E.
See. On the War and Reconstruction in popular imagination. Onl the durability of Radical Republican sentiment. 183. "operatic. see David Donald.. (2) the fact of federal coercion in the ratification of all three Reconstruction Amendments by southern states.. e. Reconstruction.1 C. Thaddeus Stevens: Nineteenth Century Egalitarian 150-209 (1997). Frederick Douglass. Gillette. and other tendentious Civil War films). at 428. Trefousse. I examine three events with special relevance to the survival thesis: (1) the fact of secession. and the people proclaimed the imminent completion of reconstruction as a whole . 1866. the politicians." wildly polemical scholarly and popular "histories" of southern oppression at the hands of s3 radical. having begun to emerge more than a century later from the atrocities of segregation and racial oppression invited by the Compromise of 1877. tried to remind the nation: While there remains such an idea as the right of each State to control its local affairs-an idea. But. 184. We were always already forgetting that closure and reconciliation achieved through concessions to first principles of federalism came at the dire price of racial subordination. Gillette.. at 365-66 ("After each constitutional amendment had been ratified and every major federal statute had become law. the impulse to identify each legal reform with the successful completion of Reconstruction was insatiable. writing for the Atlantic Monthly in 1866.g.2036 COLUMBIA LAW REVIEW [Vol. Gone with the Wind (Metro-Goldwyn Mayer 1939). more deeply rooted in the minds of men of all sections of the country than perhaps any other political idea-no general assertion of human rights 8 4 can be of any practical value.. that the federalism revival is chillingly amnesic. corrupt congressional Republicans prevailed. Charles Sumner and the Rights of Man passim (1970). L. supra note 75. for decades following Reconstruction..The widespread conviction in the North was tacit but clear and compelling: the South deserved to be punished and needed to be reformed . supra note 47. see generally Bruce Chadwick. "). Dec.. supra note 172. it is perhaps more important to recognize that the privileged mnemonic sources of the Reconstruction era to which the Court points for legitimacy are equally amnesic. 2036 2003 . The Reel Civil War: Mythmaking in American Film (2001) (discussing Birth of a Nation (Mutual Pictures 1915). There are specific aspects of the War and Reconstruction that prove exceptionally difficult to remember in the monumentalist narrative of reassuring fratricide supporting the survival thesis. Rev.' If this corrupt desire for closure indeed lies behind the survival thesis. supra note 75. passim. in saying this. But it is not all. Still. and (3) the originalThirteenth Amendment. at 426.. at 3. Radical Republicans. In what follows. HeinOnline -.. then it is not unfair to conclude. 426.. by the way. which would have avoided force in the postwar decade throughout the North continued to be war-born hatred of rebellion and rebels .103 Colum.. As Fredrick Douglass. with its deep roots in robust antebellum federalism principles. at 201. See Weisberger. Hans L. the press. the president. Reassuring Omissions The perverse desire for closure behind the survival thesis is at least part of what is obscured in the double movement of the Court's federalism revival. 103:1992 that. reprinted in Hyman & Wiecek. Atlantic Monthly. supra note 75.
189. ' 9 The result of the convention was the Constitution of the Confed185. 1. in some of the States.. reprinted in Commager. and its encroachments upon the reserved rights of the States. at 42. 190. the Confederacy was a going concern. 187." 18 6 The Declaration of Causes emphasized impermissible federal and sectional incursions on state sovereignty-the federal government's "frequent violations of the Constitution . denounced as sinful the institution of Slavery . 1860). what revivalists want to forget about them. 2037 2003 . From the perspective of countermemory. 188. hostile to the South. 18 9 By March 1861. and their votes have been used to inaugurate a new policy." 18 7 Non-slaveholding states. Mississippi. "have assumed the right of deciding upon the propriety of our domestic institutions. HeinOnline -. L. 186. Hyman & Wiecek. however. . supra note 179. 1860).103 Colum. reprinted in Commager. Id. at 207-31.. by the supreme law of the land. at 214.. Georgia.. Id. are incapable of becoming citizens.. at 43. it continued. the South Carolina legislature called a convention to meet on the question of secession and. 190 Six other states (Alabama. [and] have united in the election of a man to the high office of President of the United States whose opinions and purposes are hostile to Slavery. 42. Rev. South Carolina Declaration of Causes of Secession (Dec. and destructive of its peace and safety. 191.2003] CONSTITUTION AS COUNTERMONUMENT2 2037 war by canonizing robust federalism and guaranteeing the right to slavery. and Texas) had joined South Carolina in secession and had met together in convention to form a separate nation. when Lincoln addressed the nation on the steps of the unfinished capitol building in his First Inaugural Address. by elevating to citizenship persons who. Louisiana. provides a context in which the Reconstruction Amendments can take meaningful doctrinal shape as countermonuments. supra note 47. Id.18 5 The Ordinance itself "repealed" the state's 1788 ordinance ratifying the United States Constitution and "dissolved" the "union now subsisting between South Carolina and other States under the name of the United States of America. what is typically ignored in these events. Florida. 20. the convention unanimously adopted an Ordinance of Secession supported by a Declaration of Causes.. 24." 188 Claiming the authority of Taney's decision in Dred Scott. 42. at 42. supra note 47. The Fact of Secession. these events cannot be recalled without glaring strategic elisions because they show that federalism principles were deliberately compromised in the process of saving the Union and restoring the rebel states to it.As soon as Lincoln was elected president in 1860. supra note 179. South Carolina Ordinance of Secession (Dec. the Declaration added: [T] he subversion of the Constitution has been aided. within weeks. see Hyman & Wiecek. On the history and theory of secession. For federalism revivalists.
" However expedient these pronouncements were (Lincoln undoubtedly hoped to avert war. to the complete destruction of the Union. HeinOnline -. If they break from this. reprinted in Stern. 1859-1861. but reserved powers are a far cry "from the assumption that there is some omnipotent and sacred supremacy pertaining to a State": Much is said about the "sovereignty of the States". and failing that. in Stern.. Message to Congress in Special Session (July 4. North Carolina. much older than the Constitution. but the word even is not in the National Constitution. if conceded. Id. 194. and they have no other legal status. at 646. 1848-1861. He called the doctrine of secession a "sugar-coated" term for rebellion "drugging the public mind of their section for more than thirty years"-"an ingenious sophism which. 650 [hereinafter Lincoln. procured their independence and their liberty. ac95 cording to circumstances. within any State or States. supra note 179. while simultaneously emphasizing the sanctity of states' rights.' ' 2 With the outbreak of war. Lincoln Reconsidered. . 195. supra note 179. After solemnly reaffirming the resolution in the Republican platform on the "maintenance inviolate of the rights of the States. he conceded. On Lincoln's motives. David Potter. and not themselves separately." and therefore "no State upon its own mere motion can lawfully get out of the Union. 2038 2003 . at 555-70 (1976). and "acts of violence. 193. 1861. after hostilities had begun.. they can do so only against law and by revolution. at 665. On his pragmatic approach to politics. ignored "a 192. 394-97. L. Virginia. at 671. Abraham Lincoln. see Donald." id. nor. are insurrectionary or revolutionary. States. at 128-43. See generally Daniel Farber. The Union.' 9 1 the argument worked against facts on the ground.. Lincoln was even more emphatic in invoking war powers to defend the Union during his speech before a special session of Congress on July 4. 1861). Id. "have the powers and rights reserved to them in and by the National Constitution. Lincoln's Constitution (2003) (detailing roots of secession crisis and Lincoln's response). First Inaugural Address (Mar." he continued.103 Colum. to coax the rebels back into the fold). 103:1992 erate States of America and the appointment of Jefferson Davis as "president of the new federated republic. 669. at 670-71. First Inaugural Address). at 215 (reporting that "rump segment" of Missouri legislature and convention of Kentucky soldiers also declared their states' secession). as is believed. in any of the State constitutions. and especially the right of each State to order and control its own domestic institutions according to its judgment exclusively. at 355-57. Id. 4. the Union is perpetual[." Abraham Lincoln. . 455-60 (1950).2038 COLUMBIA LAW REVIEW [Vol. See id. The States have their status in the Union. Tennessee. The Emergence of Lincoln: Prologue to Civil War. The Impending Crisis." 9 4 "[R]esolves and ordinances to that effect are legally void." Lincoln insisted in his First Inaugural Address that "in legal contemplation. and Arkansas all joined the Confed3 eracy. Rev. 196. . making a total of eleven states in the nascent regime. see 2 Allan Nevins. 1861).] . against the authority of the United States. supra note 150. was followed by perfectly logical steps . ."' Lincoln and other centrists almost immediately began the work of denying that secession was a lawful act (insisting instead that the Confederacy was merely an illegal insurrection).
" Hyman & Wiecek. 198. Monuments. 1 98 And Lincoln's bromides about the sanctity of states' rights were. See Farber. In the secession movement. at 211. Rev." 20 3 It is not impossible. In the late 1790s. 197. at 211-12. supra note 75. supra note 47. supra note 195. and Robert Barnwell Rhett-all partisans we might be inclined to dismiss as fanatics). Calhoun passim (Ross M. supra note 47. supra note 47. called not by insurrectionary forces but by officers of existing governments as an expression of both popular sentiment and state sovereignty. 200. Hyman & Wiecek." 9 7 and created a terrible paradox for Reconstruction. supra note 195. the argument that secession was a nullity had to dismiss the legitimacy of the southern state conventions." the same could not be said for secession considered as an implied right of state sovereignty. of course. Edmund Ruffin. which built on early ideas of Madison and Jefferson). But see Farber. '20 0 Before Calhoun and the Carolinian "fire-eaters" liam Lowndes Yancey. Southerner: A Study in Secession (1932). Hyman & Wiecek. 2039 2003 .20031 CONSTITUTION AS COUNTERMONUMENT 2039 rich and venerable treasury of constitutional theory. both Madison and Jefferson invoked the concept of state nullification of federal law as well as the broader principles of states' rights and wrote in opposition to the Alien and Sedition Acts.103 Colum. Edmund Ruffin. supra note 195. at 59. even if naked "disunionism . 202. 199.. at 70-114 (concluding that while not frivolous. the convention had become a vehicle that translated the theory of popular sovereignty into an actual mechanism of government. 201. See Farber. 1992) [hereinafter Lence] (compiling Calhoun's major theoretical writings and political expressions on states' rights and doctrine of nullification/interposition. Levinson. Sanford Levinson insists. like drafting or ratifying a constitution. "Originated in the Revolutionary era as a formal convocation of the people's representatives to perform some solemn act. at 112 n. if we resist the temptations of the monumentalist mode. at 211. "theories concerning the nature of the states' retained sovereignty were numerous in the Revolutionary period and had been amply replenished and updated 2 1 0 (Wilever since. antebellum moral and constitutional arguments for secession are ultimately unconvincing). Although he disagrees with Levinson's conclusion." Hyman and Wiecek note. 203. L. at 213. 199 "As an indispensable element of federalism. supra note 47. lacked constitutional justification. supra note 195. Craven. at 70 (finding that while secessionist theory "is not inconsistent with a qualified form of federal supremacy" since "a state must fully comply with federal law so long as it remains HeinOnline -. Cf. Hyman & Wiecek. Daniel Farber notes that secession is "in some respects" less radical as a matter of constitutional law than the doctrine of nullification. In terms of facts on the ground. there was an "impressive intellectual tradition" expounding the "derivative character of the federal government" and ultimately leading back to Madison and Jefferson. Lence ed. . Id. See generally Avery 0. Farber. conventions played both roles-legitimating the Confederacy through expression of popular will and producing formal documents reflecting that will. we can recognize the "plausibility [of secession] within our particular political system. see also Union and Liberty: The Political Philosophy of John C. at 46-50 (discussing Jefferson's draft of Kentucky Resolutions and Madison's draft of Virginia Resolutions). belied by the national war effort itself. .42 (citing evidence that southern support for secession was not unanimous and that potential opposition was suppressed). 20 2 Indeed. In terms of constitutional theory.
Rev. 2040 2003 . (7 Wall. The Reconstruction Amendments are. Seeking to undo a "swindle" in which the rebel government of Texas sold bonds issued to it before the War by the federal government. written against the principle of dual sovereignty. at 60. I believe that Abraham Lincoln had more than a trace of "union mysticism" that led him to underestimate the theoretical force of the Southern ar20 4 gument for voluntary dissolution of the Union. the Supreme Court added the imprimatur of juridical authority to Lincoln's politically expedient utterances. at 636. Fairman. having severed her relations with a majority of the States of the Union. but it is only by forgetting or diminishing the constitutional salience of the fact of secession that the Rehnquist Court has been able to invoke dual sovereignty so confidently in its revival of robust federalism. L. My point here is not Alexander Stephens's (that Lincoln should have accepted the fact of secession). Monuments. See Levinson." nullification "directly contradicts the supremacy clause's mandate that state judges follow the Constitution regardless of state law [and it] is also at odds with the federal courts' authority tinder Article IIl to decide cases arising under federal law"). By the Reconstruction Act of 1867. The case is Texas v.103 Colum. at 59. 204. in the midst of Reconstruction. re- in the Union. in short. at 719. HeinOnline -. 74 U. 74 U. 2 ° 7 The argument was not without merit. but only because. 206 The bondholders objected that the Court lacked jurisdiction because Texas was not then a State in the Union with standing to sue. at 632-35." the defeat of the South was not just a sectional defeat or a rejection of secession as an isolated political right. 206. Texas's Reconstruction government brought an original action in the United States Supreme Court in 1867 to recover bonds from certain purchasers. White. and having by her ordinance of secession attempted to throw off her allegiance to the Constitution and government of the United States. The notion that dual sovereignty (in the strong sense) is dead immediately provokes resistance. Like Confederate Vice-President Alexander Stephens. see also Fairman. 207. 2°5 but rather that if we take the fact of secession seriously now. supra note 127. 103:1992 to interpret the Constitution as allowing secession even within the United States.) 700 (1868). White. 205." Id. supra note 127. supra note 75. The defendants' answer claimed: [T]he State.2040 COLUMBIA LAW REVIEW (Vol. instead of burying it under "union mysticism" and the reassuring sign of "constitutional nullity. Nor is my point Levinson's-that "the reality of slavery provides the only justification for the suppression of the Southern effort to gain political independence. has so far changed her status as to be disabled from prosecuting suits in the National courts. Congress had declared President Johnson's provisional governments in the defeated rebel states illegal.S. at least if carried out with full popular deliberation and consent of those doing the seceding. A weaker form of federalism surely survived the War.S. it was also a defeat for the robust antebellum federalism principles from which secession derived.
. 1865). . Texas was enough of a state to sue. in Arkansas. When. 74 U. "aiming." the Court nevertheless held that. 11.. White. 2041 2003 . . were absolutely null. Tennessee. at 731-32. He then granted "amnesty to the great mass of ex-Confederates who would swear future loyalty to the Union. The Constitution. looks to an indestructible Union. adopted by the convention and ratified by a majority of the citizens of Texas. According to the model. " Id." and there began a race in which Johnson sought to "hasten state restorations" in order to preempt Republicans in Congress who were outraged by rebel-dominated southern governments and their subordination of just emancipated blacks." It is difficult to convey the idea of indissoluble unity more clearly than by these words. are out of their proper practical relation with the Union. Last Public Address (Apr. composed of indestructible States. would convene in December..103 Colum. provisional governors were appointed to initiate and supervise state elections for delegates to mandatory constitutional conventions. and. declaring that Texas had never lost its status as a state: "to form a more perfect Union. the ordinance of secession. Fairman. made more perfect. 2 11 But coming in the teeth ofJohnson's impeachment and heated debate about the constitutionality of Con208. It certainly follows that the State did not cease to be a State. supra note 127.20031 CONSTITUTION AS COUNTERMONUMENT '20 2041 moved them from power. Last Public Address]. 210.S. Not surprisingly. supra note 179.. As Hyman and Wiecek observe. and reverted southern states "to the military authority of the United States. See Hyman & Wiecek. or to the paramount authority of Congress." Abraham Lincoln. the new legislatures almost immediately set to work drafting regressive "Black Codes. nor 0 21 her citizens to be citizens of the Union." Id. Purporting to avoid any inquiry "into the constitutionality of this legislation so far as it relates to military authority. 849 [hereinafter Lincoln. "which were to renounce slavery. "Every one of the elected and appointed officials and voters was white . civil and HeinOnline -. Lincoln could not have said it better. in Stern. . Pardon-brokering became a new Washington growth industry. Johnson's provisional governments were established by proclamations and executive orders beginning in May 1865. by terms of the new constitutions. in all its provisions. at 303-04." offered executive pardons by petition to "prominent rebels" excluded from the amnesty.. supra note 47. 211.. [and a] substantial proportion were ex-rebels . . Louisiana. to have the states reconstructed before the Thirty-ninth Congress .. and that the sole object of the government. first applied in North Carolina. at 846. the Court went further. at 725-26 (emphasis added). Id. Id. at 304. 2 0 9 Indeed.. at 313-23. Considered therefore as transactions under the Constitution. she entered into an indissoluble relation . Id. Rev.. In his last public address. he formally recognized state governments established by Lincoln. at 619.. Then. L. and Virginia. Lincoln referred to the question of the southern states' status upon defeat as "a merely pernicious abstraction. so called. for purposes of Article III jurisdiction." established a model for the restoration of other southern states. therefore.. Texas became one of the United States. First. the provisional governors set elections in motion for slates of officials . 209. He then gestured in the direction of collectively forgetting the fact of secession: We all agree that the seceded States. What can be indissoluble if a perpetual Union. it appears. and all the acts of her legislature intended to give effect to that ordinance. is not? ..
Fairman. there had been ordinances of secession-but these were 'mere nullities.103 Colum. And. 216. at 738. 214. and the courts of the United States now exercise jurisdiction over the people of that province. Ratification by Force. 212.2042 COLUMBIA LAW REVIEW [Vol. at 308 ("'No fallacy could be more transparent' than that Congress derived new powers" as a result of the War. and Cummings v. 21 6 the fiction of Texas v.) 333 (1866). supra note 127. in regard to those States. See. (4 Wall. White posed a basic paramilitary. "The rebellion had been simply one more insurrection: true. See. declares Texas to be a "rebel State.g.. 213." (citing United States v. (4 Wall. Cf. at 728-29 (supporting Thirteenth Amendment and black suffrage). 71 U.S..' . but in fact easier. it would be utterly immaterial whether they had ever been abroad. Let Congress simply admit all States to representation: that would 'send a thrill of joy throughout the land . White.) 2 (1866). The Court surely felt the heat. of course. Wherein does the condition of Texas differ from theirs? Id.) 277 (1866). e. the doctrine was a "legal fiction" predicated on forgetting "the truth of his21 5 tory for the last eight years.. "a military despotism in Texas").S. after the excited talk at the two ends of the capitol had died away. Id.g. 121. It is true that no organized rebellion now exists there.S.However significant its contribution to sectional reconciliation. to do this without deciding or even considering whether these States have ever been out of the Union." 2.. at 636. Finding themselves safely at home. 103:1992 gressional Reconstruction (or. . See Fairman. and Ex parte Milligan.S. at 641 ("It was most faithful to the Constitution's purpose to say that there had always remained a place in the circle of the Union for each erring State. 131-32 (1960) (Frankfurter. supra note 127. and yet the courts of the United States administerjustice there as they do in Texas. . 71 U. I believe that it is not only possible. HeinOnline -." and provides for its government until a legal and republican State government could be legally established.The Union surely survived with victory at Appomattox. L. Dacotah is no State. who are governed by military force.S." was to turn Lincoln's wartime rhetoric of expedience into a stunningly amnesic endorsement of the survival thesis.. concurring) ("It was in aid of that process [of healing the wounds of sanguinary conflict] that this Court formulated the doctrine expressed in the famous sentence in Texas v. at 64-88. but to declare that the southern states did too.." Id. supra note 137. 21 2 the Court's famous doctrine of indestructibility required particularly selective memory work. 73 U.. Justice Grier continued: Is she not now held and governed as a conquered province by military force? The act of Congress of March 2d.. the case was not the Court's only decision touching on the legitimacy of Congressional Reconstruction. But this is no test of the State's being in the Union. at 737. (4 Wall. as discussed in Fairman. . at 373. J. at 637. 1867. as the defendants' opposition brief put it. (6 Wall. 21 . 215. Rev. President Johnson would later appropriate Lincoln's view in his messages vetoing Reconstruction measures beyond the Thirteenth Amendment as unconstitutional encroachments on states' rights. Mo. the Test Oath cases: Ex parte Garland. 2 1 4 As Justice Grier lamented in dissent.. is to again get them into that proper practical relation. at 182-252. supra note 127. Hyman & Wiecek. 2042 2003 . and to create an inexorable parallelism between the indestructibility of the Union and "indestructible States. supra note 47. Florida. e. supra note 127. the fiasco of Ex parte McCardle. cannot claim to be States of the Union. The Indian tribes. than with it. and Kutler. 363 U. Id. Fairman reports that the Court delayed argument on the case: "There was a serious question to be examined-calmly. 71 U.. Fairman.(quoting Johnson's veto message on the Civil Rights Bill of 1866)). ".) 318 (1867). 74 U.S.
I do not commit myself against this further than to say that such a ratification would be questionable. HeinOnline -. the Fourteenth Amendment would have failed ratification due to southern recalcitrance)." Fairman. . We the People: Transformations 99-252 (1998) (discussing the problematic ratification of the Reconstruction Amendments). 218. . 219. at 276. on what ground could the Fourteenth Amendment be considered "ratified" 2 19 within the meaning of Article V? If. one may not extol the benefit yet repugn the cost. Last Public Address. The trouble here.103 Colum. at 510 (concluding that without congressionally mandated Military Reconstruction in 1867. cf.. of course. U. Article V provides that amendments "shall be valid . on what ground could the 39th Congress refuse to seat congressmen and senators elected by President Johnson's provisional governments? 2 17 On what ground could Congresses composed exclusively of northern representatives not only propose the Reconstruction Amendments for ratification. . 220. . Brandwein. Id. Const. supra note 127. See generally 2 Bruce Ackerman. while a ratification by three-fourths of all the White.S. L. Foner. Although he does not see the implications of forced ratification for the survival thesis. but condition federal recognition of southern states on ratification of the same?2 18 And. is that the consent of the southern states was sought by the Reconstruction Congress. at 271-77. 220 States would be unquestioned and unquestionable. The 39th Congress was well within its rights in denying recognition to southern representatives and it did not need the consent of southern states to ratify and enforce the Reconstruction Amendments. as Justice Grier suggested. 2043 2003 . or by Conventions in three fourths thereof. when ratified by the Legislatures of three fourths of the several States."))). on the other hand. supra note 75. at 510. ... at 257 (agreeing that ratification by loyal states only would have left the Amendment "questionable and infirm"). supra note 75. at 105-06 (examining Fairman's interpretive biases).. to "conquered provinces"-most of these troubling constitutional questions disappear. supra note 76. supra note 127. and for reasons not altogether different from those Lincoln expressed in April 1865 just before he was shot: t has been argued that no more than three-fourths of those States which have not attempted secession are necessary to validly ratify the [Thirteenth] amendment. Fairman rightly admonishes that "to be honest with the facts. Lincoln.2003] CONSTITUTION AS COUNTERMONUMENT 2043 dox for Reconstruction: If the southern rebel states were still in the Union. see also Gillette. art. Rev. given that the rebel-dominated provisional governments of ten southern states (enough for a veto under Article V) rejected the Fourteenth Amendment until they were replaced by federal military rule under the Reconstruction Act of 1867. see Fairman. see also Fairman. the southern states lost their status as states by seceding-had reverted.. supra note 211. 217. as the one or the other Mode of Ratification may be proposed by Congress . V. at 851. at 86-88 (detailing the role of federal military intervention in Georgia late in 1869 to ensure ratification of Fifteenth Amendment after Democrats had expelled black members of legislature and refused to ratify the Amendment in 1868). supra note 127.
§ 4. HeinOnline -. 68 U. at 111. art. IV. supra note 219. More importantly. 224. Ratification by northern states alone under a conquered province theory certainly would have been "questionable" (especially if the primary goal after Appomattox was sectional reconciliation). as Bruce Ackerman observes. supra note 75. supra note 75. L. at 402.S. 2044 2003 . But the coherence and persuasiveness of the grasp-of-war doctrine diminished with each passing year after Appomattox. 375.S. Intermediate theoretical positions abounded at the time. art. It transformed the Union Army into a bureaucratic engine expressing the national interest in Reconstruction and the ratification of the Fourteenth Amendment. the most prominent theories relied either on federal war powers (the so-called "grasp-of-war" doctrine) or on the Guarantee Clause. Supplement to the Reconstruction Act (July 19. 383-88. . at 379. For the language of the statute and supplemental legislation. 1867). The Lawfulness of the Reconstruction Amendments.2044 COLUMBIA LAW REVIEW [Vol. since it marked a sharp break with Federalist traditions. that the first strategy is dominant-the ugly facts of ratification have simply been consigned "to the collective unconscious. at 99. and authority Linder the Guarantee Clause turned entirely on novel ideas about the minimal attributes of a "republican form of government. neither theory squarely meets the problem of deliberate deviation from the Article V process for constitutional change. 222. § 4. 403-07. 296. 1867). 23. cf. Hyman & Wiecek.103 Colum. reprinted in Radical Republicans. the plain facts of federal military control in the South following the Reconstruction Act of 1867 make this argument exceedingly difficult to sustain. Rev. at 382. see The First Reconstruction Act (Mar. though. at 267-70. Ackerman. supra note 75. Const. Thus it appears that the Reconstruction Amendments and all the enforcing legislation that followed were either lawless-the fruit of "naked violations of Article Five"22 '-or structurally transformative. reprinted in Radical Republicans. . 223 Thus it is no surprise. ''224 The Reconstruction Act especially gets short shrift in historical accounts. supra note 47. IV. . But outside the monumentalist mode of the survival thesis. fundamentally altering the balance of power between the states and the national government. Supplement to the Reconstruction Act (Mar. L. conceding that principles of state autonomy were violated in the process). The latter move requires evidence that ratification was consensual and that Congress treated the rebel states as states (though in some form of suspended animation) rather than as conquered provinces. but the involuntary circumstances of southern ratification made the more inclusive approach to the amendment process "questionable" too. 103:1992 Lincoln was only half right. Chi. This is a mistake. 380-82. reprinted in Radical Republicans. Tojustify military rule and delayed federal recognition of the rebel states. See U. John Harrison. for our purposes." shrouded by a "curious silence. [It also] made it the business of each of the five district commanders to register the black and white voters Congress 221. 326 (discussing reliance on both by Reconstruction Congress). revivalists must either ignore it altogether or try to build a reassuring narrative of congressional deference to states' rights. Rev. Ackerman. 223. 2." U. 436-51 (2001) (arguing that ratification of Reconstruction Amendments was highly irregular but nevertheless legitimate.2 22 To escape this paradox. supra note 219. 1867). Const.
" 229 Can we still (authoritatively) reach back to robust antebellum federalism principles without recalling this deep unity. a "re-founding" 22 8 in Reconstruction-a re-founding in which first principles of federalism were revised by the postbellum moral and political authority of national power. without reading the Reconstruction Amendments as a national re-founding and giving interpretive weight to the basic conditions of that re-founding? 230 It is not enough to avoid the thrust of this question to point to the Reconstruction centrists and Redemption as evidence of the survival thesis if the desire behind the 225. This is where I part company with Ackerman who. There is.. ratification was "consensual" in only the most formalistic sense-a framework for higher lawmaking that "would have horrified the Federalists" precisely because it presupposed 22 7 diminished concern for state sovereignty. Id. L. Id. A Discourse on the Constitution and Government of the United States. at 202. at 198. competing state "governments" seizing state offices. reprinted in Lence. he writes. supra note 75. Calhoun. The "seriousness of the breach with old Federalist values" was palpable: "[T]he Nation was now telling the People of the Southern states how their constitutional will might validly be expressed. Compare John C.20031 CONSTITLTION AS COUNTERMONUMENT 2045 considered eligible.. would have been equally horrifying to the founding generation. Ackerman. quite rightly I think. 228. especially interventions in the early. Both substance and process put national citizenship first . supra note 219. at 203-04. at 76-210. at 7.and mid-18 7 0s to deal with southern state elections marred by systematic fraud and intimidation at the polls.. McConnell. by seeking legitimacy for the re-founding in popular sovereignty. once ratified. Id. 229. 226. 227. 115 (1994) (using Redemption to develop critique of Ackerman's theory)." 2 26 Southerners could resist only on pain of delaying both representation in Congress and the withdrawal of federal troops. at 133-59. See id. Id. 11 Const. The Army would then supervise a first round of elections for a constitutional convention... 230. between the nationalizing substance of the Fourteenth Amendment and the nationalizing process through which [Congress] proposed to enact it into law. must accept the undoing of the re-founding by widespread popular support for Redemption. 95-97 (disputing nationalist inferences drawn from the Preamble of the Constitution before the Civil War). 83-85. supra note 202. Comment. redefin [ing] We the People of the United States as We the People of the United States.103 Colum. at 199. See generally Michael W. HeinOnline -.. and armed. See generally Gillette.. and a second round determining whether a majority supported the new constitution emerging from the convention . Thus. [T]he new state could gain representation in Congress only after it had approved the Fourteenth Amendment and the amendment had 225 gained the support of a three-fourths majority of the states. Ackerman finds. at 204. 2045 2003 . The framework for federal enforcement of the Reconstruction Amendments. The Forgotten Constitutional Moment. "a deep unity. flagrant violence against blacks. Similar problems exist in the ratification of the Thirteenth Amendment byJohnson's provisional governments. Rev.
S. 3. This view of the Amendment was alive in 1865: It animated the Civil Rights Act of 1866 before the memory work of Reconstruction centrists and the desire for closure took firm hold of congressional Republicans. 235. indeed all three Reconstruction Amendments. From the perspective of countermemory. supra note 47." 2 35 Once removed from the morally and politically charged moment of emancipation and northern victory. . Hyman & Wiecek. Rev. 234.103 Colum. with the domestic institutions thereof. 233. But we have forgotten other facts about the Thirteenth Amendment that are even more problematic for the survival thesis. it is perhaps easy to see why it fell into desuetude with the "spreading myopia"2 3 4 of the "Retreat from Reconstruction. The Original Thirteenth Amendment. judges. 3. 232. It lost its dynamic meanings of 1865. 2046 2003 . 103:1992 "skyrocketing respect for state rights and forjudicial review"'23' animating the centrists and Redemption was fundamentally corrupt. at 464. and to isolate them from their historical connections" (quoting Patricia Allen)). supra note 47. includ- 231. at x. we have forgotten the original Thirteenth Amendment. and legislators all but lost sight of the Thirteenth Amendment as the standard by which to measure the nation's duty to every individual as against every other person or unit of government. L.2046 COLUMBIA LAW REVEW [Vol. Gillette. nothing more. supra note 47. within any State. at 468 (arguing that one effect of Slaughter-House's deemphasis of Thirteenth Amendment was "to separate the pieces of Republican policy. concerning defenses of national rights. 36 (1873). the Thirteenth Amendment. at 431." 23 6 If the spirit of that moment were revived and the Thirteenth Amendment were read to include a substantive equality principle. lawyers. 236.S. Id. Id. at 464. Not only have we forgotten original meanings of the Thirteenth Amendment as ratified in 1865. at 465. supra note 75. "administrators. 237. Id. the implications for federalism would be far reaching since the Amendment contains no state action limit. at 465." Hyman and Wiecek write. Hyman & Wiecek. cannot be read without recalling the unamendable Amendment the nation was on the verge of accepting in order to avoid civil war: No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere. see also The Civil Rights Cases. the language was clearly susceptible to the monumentalist interpretation that it "ended slavery. With the aid of the Slaughter-House Cases. HeinOnline -. Hyman & Wiecek. By 1880 it was almost a relic. ' 232 The Amendment "not only faded. 109 U.23 7 we have forgotten all this."Between 1870 and the mid1880s. 83 U." 233 Looking now at the text of the Thirteenth Amendment. 24-25 (1883) (stating that broad construction of Thirteenth Amendment would "run[ ] the slavery argument into the ground").
Id. and the Thirteenth Amendment 18 (2001). ratherthan making a genuine change to the Constitution. at 46 (describing Republican support for proposed Amendment). The President's signature is not required by Article V. But support for the Amendment was not the result of expedience alone. Id. The original Thirteenth Amendment was thus a paradigmatic expression of robust antebellum federalism principles. 2047 2003 . "roughly 150 slavery amendments. Final Freedom: The Civil War. see also Hyman. Rev. 243 "[T] he fantasy of constitutional compromise. Globe. 2d Sess. merely prevented 'misconstruction of existing provisions... sought to protect rather than abolish slavery. 244. voted for ratification. See id. Even early opponents "were satisfied by the claims of other Republicans that the amendment. 241.. "was shattered by Confederate guns aimed at Fort Sumter" just a month after the Corwin 244 Amendment was sent to the states for ratification. 36th Cong. Id. supra note 137.43. Id. at 21 (emphasis added) (quoting Congressman Albert Porter).' "245 Lincoln's endorsement of the Amendment a day after its passage in his First Inaugural Address confirmed this view: 238. . There were. L. Michael Vorenberg. Maryland and Ohio.. See id. to view the Amendment as the unfortunate result of constitutional brinksmanshipa bizarre and ultimately unsuccessful compromise provoked by the equally bizarre and unsuccessful attempt at secession. the Abolition of Slavery. Cong. 1284 (1861). at 21. at 21 n.103 Colum. '239 And in the midst of the secession crisis. at 22 (challenging Hyman's claim that Amendment reflected pressures of low moment in constitutional ethics). the so-called "Corwin Amendment" was the only one passed by both houses of Congress. but it demonstrates the breadth of support the Amendment enjoyed and the hopes much of the nation had invested in it. Id. There was some early opposition to the Amendment. between December 1860 and March 1861. Michael Vorenberg reports. but "moderate and radical Republicans began to change their minds [as they] grew to see the wisdom of using the amendment to hold onto the border states and thwart secession. 239. 245. 241 As an unamendable Amendment it not only would have protected slavery in the southern states as long as those states wished. Two states. 2 40 But the language I have quoted is rightfully considered the original Thirteenth Amendment-among all the alternative proposals. signed by President Buchanan (just before Lincoln took office. when Lincoln took office.2003] CONSTITUTION AS COUNTERMONUMENT 2047 ing that of persons held to labor or service by the laws of that 1 23 8 State. 243.. "[a]lmost all of the proposed slavery amendments . and then submitted to the states for ratification. on these grounds. at 19. More Perfect Union." Vorenberg writes. it would have permanently insulated all "domestic institutions" of the states from federal intervention. as it happened). 240. proposed. 242.. HeinOnline -. at 20-21. '24 2 It is tempting.
without considering the "differences between what might have been. for restoring rebel states to the Union. at 22 ("Lincoln and his party thought of the amendment not as a genuine constitutional change. including that of persons held to service. I fully recognize the rightful authority of the people over the whole subject. it invites all the objections familiar to historical and structural interpretation. supra note 137. To avoid misconstruction of what I have said. and perhaps others too.. Countermemory seeks to recover constitutional meaning obscured by monumentalist historical consciousness. Justice Kennedy gave a paradigmatic statement of the Court's view of the conditions of entering the Union in Alden v. the Reconstruction Amendments cannot be read (and first principles of robust federalism cannot be invoked). Rev.103 Colum. While the Union may have survived the Civil War. however. . but rather as an expedient tool to preserve the loyalty of the upper South and to breed unionism in the deep South. holding such a provision to now be implied constitutional law. First Inaugural Address. the Constitution-insofar as it endorsed slavery and implicitly recognized first principles of robust federalismdid not. 248. . Hyman. 2048 2003 . see also Vorenberg.2048 COLUMBIA LAW REVIEW [Vol. supra note 194. at 655 (emphasis added).. id. I have no 24 6 objection to its being made express and irrevocable. and I should. . I want to return to the objection that the method of constitutional interpretation I have pursued breaks from authoritative methodologies. Maine: HeinOnline -. at 47. I understand a proposed amendment to the Constitution-which amendment. to the effect that the Federal Government shall never interfere with the domestic institutions of the States. If the compromise that failed to avert war was merely an attempt to make explicit robust antebellum federalism principles-an attempt to confirm well-recognized and widely accepted principles of implied constitutional law-we can begin to see the salience of Marshall's theory of constitutional demise for federalism jurisprudence. I depart from my purpose not to speak of particular amendments so far as to say that. 247. L.." 2 4 7 The federalism revival depends upon forgetting these differences. supra note 239. As such."). More Perfect Union. Lincoln. favor rather than oppose a fair opportunity being afforded the people to act upon it. I have not seen-has passed Congress. But it is hardly radical to say that the conditions established for saving the Union. matter at least as much as the conditions the Rehnquist Court recites for the entry of the original thirteen states into the Union2 4 8 Outside monu246. at 20 (noting that Lincoln had considered slavery-protecting amendments and may even have played role in Corwin Amendment). and what came to be. 103:1992 I cannot be ignorant of the fact that many worthy and patriotic citizens are desirous of having the National Constitution amended. While I make no recommendation of amendments. Viewed from the perspective of countermemory. CONCLUSION In closing. under existing circumstances.
as the Constitution's structure. Scanlon. which the artists compared to "a self-mutilation"-"a great black knife in the back of Germany.S. . Rather. Young. If context matters to text there.S. 249. But countermemory shares with the revivalist's project the central methodological premise that constitutional structure and historical context (along with the memory work we do to reveal both). at least when the issue is the scope of federalism principles. and the authoritative interpretations by this Court make clear. the coercive assertions of national power underlying emancipation and ratification.. supra note 1. supra note 1. The Court's new Eleventh Amendment jurisprudence. the terms of the Eleventh Amendment. Recovering our "subterranean history" 249 -the fact of slavery and secession. and which they retain today . especially the meaning of 25 ° federalism. is convenient shorthand but something of a misnomer. Sniping between the majority and dissenters about the implications of the Founding for the Eleventh Amendment is particularly bitter in Alden. 527 U. 234. it surely matters with the Reconstruction Amendments. nor is limited by. 730 (accusing dissent of "attempt[ing] to rewrite history" and asserting that "[ o rest on the words of the [Eleventh] Amendment alone would be to engage in the t] type of ahistoricalliteralism we have rejected in interpretingthe scope of the States'sovereign immunity since the discredited decision in Chisholm [v. employs hotly contested histories and bold structural inferences to locate a meaning in the Amendment the plain words simply cannot bear. Georgia]" (emphasis added)).2 (1985)). HeinOnline -. are relevant to constitutional meaning. 706. special reasons must be given (reasons not articulated in the cases) to limit this method to the Founding and the Eleventh Amendment.103 Colum. Like the Gerzes' sinking monument against fascism. for the sovereign immunity of the States neither derives from. 713. Young. at 45. Simply put.20031 CONSTITUTION AS COUNTERMONUMENT 2049 mentalist historical consciousness. This is not to say that countermemory and the Court's approach are methodologically identical. the conditions of re-enty speak at least as forcefully to federalism principles as the original conditions of entry. "The Constitution never would have been ratified if the States and their courts were to be stripped of their sovereign authority except as expressly provided by the Constitution itself. And countermemory is quite radical insofar as it refuses to credit "Eleventh Amendment immunity"." 527 U. Thus. L. at 724. but. 139 and accompanying text. 250. It promises not a comforting play of recognitions but the frustrating labor of exposing and provoking resistance. the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution.S.. 727 (1999) (emphasis added) (quoting Atascadero State Hospital v. 251. 239 n. and the robust federalism of the original Thirteenth Amendment-may prove inconvenient for inferences the revivalists want to draw from the Founding. at 34. neither side disputes that history matters to how we answer questions about state sovereignty. 473 U. 2049 2003 . See supra notes 114-119. to cite the most pronounced example. except as altered by the plan of the Convention or certain constitutional Amendments. Rev. slowly being plunged in" 25 1-reading the Reconstruction Amendments as countermonuments will prove exceptionally difficult memory work for anyone committed to the elaboration of a reassuring national narrative. its history. . as this and other cases show.
531 U. belie the contrary conclusion of revivalists.").S.2050 COLUMBIA LAW REVIEW [Vol. see also United States v. thinking Marshall's thought might lead to a burden-shifting presumption against robust fed252. 254. 549.S. Lopez. 529 U. Madison wrote there that "[t]he powers delegated by the proposed Constitution to the federal government are few and defined [while t]hose which are to remain in the State governments are numerous and indefinite. 356.S. 514 U. 253 However startling and pernicious the assertion may seem. in the sense famously expressed by Madison in The Federalist Number 45. Redesigning. 527 U. 45. countermemory warns against embracing such skepticism too quickly. Both the massive growth of the federal government over the last century and its nearly pervasive role in traditional state functions. 514 U. there is good reason to prefer it to the amnesic double move of the revivalists. thinking it is a necessary condition both of understanding the moral. [l]et the former be sacrificed to the latter. the realities of national power lend an air of conceit and impracticability to the federalism revivalU54-countermemory may thus help liberate us from a legal fiction that has itself become pernicious. To name just one: Can Congress's power to enforce the substantive provisions of the Reconstruction Amendments be determined without reading the Enforcement Clauses as written against the abuse ofjudicial review in Dred Scott? 253. doctrinal. it is worth noting. at 257 (James Madison) ("[A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people. the voice of every good citizen must be. 45. 2050 2003 . 666. 598. unthinkable. 693 (1999). Can it guide adjudication? Many possibilities. see also Scheiber." The Federalist No. Florida Prepaid Postsecondary Education Expense Board. 376 (2001). College Savings Bank v. is dead. L. Rev. and Lopez. Garrett. South Carolina State Ports Authority. University of Alabama v. 252 And there is the additional question of whether judges can ethically endorse a methodology that seeks not only to break from late nineteenth-century precedents but to operate outside the national narrative and against the predations of collective memory. 655 (2000). at 257 (arguing that with the New Deal "the entire structure of federalism underwent a sudden and comprehensive change" and surveying other twentieth-century impacts on federalism in light of new arguments for devolution of power to the states). 772 (2002). at 615. See Justice Breyer's dissents in Federal Maritime Commission v. 103:1992 the perverse desire of Reconstruction centrists for closure. On the more radical end of the spectrum of possibilities opened by thinking Marshall's thought. Indeed.S. 743. we might come to the conclusion that robust federalism. and ought not be. HeinOnline -. at 260 (James Madison) (Clinton Rossiter ed. I hope at least to have shown that Justice Marshall's provocative reversal is not.103 Colum. Further work with countermemory is needed to explore answers to these questions. also endorsed a strong conception of popular sovereignty in No.S. perhaps too many.. But from the memory work we have done. supra. Rather. supra note 121. Morrison. 552 (1995) (quoting this passage to express "first principles" of federalism).S. On the more moderate end of the spectrum. 45. But if countermemory can guide adjudication. can be seen in rejecting the survival thesis. United States v. and political consequences of the federalism revival and of imagining compelling alternatives. 1999). See The Federalist No. 535 U. Madison.
a presumption against robust federalism would require the Court to show that liberty interests will in fact be well served by striking down the act of Congress in question. L." traditional areas of state concern. Id. should carry little weight." 255 It "answers one vital need of a community. is to admit that we have forgotten too much about our great national trauma. the bare assertion that first principles of federalism are liberty-enhancing. Fourteenth. '25 6 To interpret the Reconstruction Amendments as countermonuments. 255. often emphasizing that respecting federalism principles is liberty-enhancing. a final point. at 784. supra note 45.103 Colum. 256. It is to commit to reading the Thirteenth. Rev. The Court now regularly invokes robust federalism principles as a structural constraint on congressional prerogatives. to strife. especially after deeply divisive political traumas. and the Court's obsessive presentiment about "centralization. and Fifteenth Amendments as written both for and against the strange unity and peace they secured. If the Reconstruction Amendments represent a re-founding. 2051 2003 . to think Marshall's thought. HeinOnline -. "[F] orgetting.2003] CONSTITUTION AS COUNTERMONUMENT 2051 eralism. Booth." James Booth has written. and the "dignitary" rights of states. it allows an end. Before employing these principles to constrain congressional prerogatives. "is an essential part of politics because it is an ally of peace and unity.
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