As I'm sitting here editing University, Court, and Slave I've been thinking about the joint dissent in Sibellius. This statement interests me in particular:
The constitutional protections that this case involves are protections of structure. ... [T]he Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.
As close followers of my scholarship (as if anyone cares about what I think) may recall, I'm skeptical of the originalism project. I wonder, for instance, whether we can meaningfully understand original intent, whether the framers themselves thought that intent should bind us, and how we might translate their understanding of their world into ours. All sorts of things like that. So I am not the person to answer this, because I don't put much stake in the originalism project. My skepticism of originalism is borne of my reading in pre-Civil War constitutional law. In that era the Court and public interpreters of the Constitution were close in time to the framing of the Constitution but were so clearly understood that they were interpreting a flexible text. But, look, this isn't the place to replay for the millionth time the debate over originalism.
Two points here. First, my gosh that statement sounds remarkably like what Senator Calhoun and his Southern colleagues repeatedly told us about the Southern vision of the Constitution. (I get that Calhoun focused on the liberty-enhancing aspects of federalism AND saw the remedy as state nullification of offending federal action, but right now I'm focusing only on the first part of the Calhoun Constitution.) Second, that Calhoun vision of strong federalism was resoundingly defeated during the Civil War. Hence the illustration of this post of the field where Pickett's charge was defeated, which took place 149 years ago today. (I had thought about illustrating this with a monument, but I'm not to partial to the monument of the soldier using his gun as a club. I do recognize, of course, that illustrates the world view of the victors at Gettysburg and might strengthen the point I'm making here.) The active interpreters of the Constitution and makers of Union on Cemetery Ridge in Gettysburg made clear that they rejected the southern compact theory of the Constitution. And mind you I'm not talking only about some Bruce Ackerman constitutional moment argument here. We have three amendments to the Constitution that were designed to ratify the changes wrought by Civil War.
Now my question: why, when we're talking about the relationship between the state and federal government are we talking about the 1787 Constitution as though the vision of federalism had been un-altered by subsequent events and amendments? The omitted section in the quotation from the dissent above refers to the Reconstruction amendments, so those amendments and the process of Civil War were on the minds of the authors. I mean, I get it if you're arguing that the 1787 Constitution permits ACA, but I would think that if you're arguing that the 1787 Constitution's commerce clause prohibits ACA that there's more analysis that one needs to do, in terms of looking at the Civil War and its constitutional legacy.