The Calhoun Constitution

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.

Comments

[Brian Galvin]

Not to wade into the morass of "originalism/contra-originalism" divide, but I do believe the issue is "original meaning" rather than "original intent". The words of a duly-enacted Constitutional or statutory document (at least) necessarily mean what they say, while they don't necessarily say what the drafters meant.

[Alfred Brophy]

Thanks for this, Brian -- I can see that distinction is important in the originalism wars.

I'm not sure that matters a whole lot to my point: that the intent/meaning/structure of the 1787 was altered by subsequent Supreme Court decisions (I get this is irrelevant to originalists), by events like the War (perhaps largely irrelevant to originalists, but I think that a pretty important change), and by post-War amendments (ought to be important to originalists, because we have a new understanding of the relationship of states to the federal government).

[AGR]

I think it is because the Civil War amendments were designed to bring black people into citizenship. That is an enterprise about which many in this country remain ambivalent. Given American history, they were needed to work the change in relationship you speak of. The southern states wanted to be free to do what they wanted with "their Negroes". Any bets about which states will more likely refuse to accept the changes in Medicaid?

[anon]

"Any bets about which states will more likely refuse to accept the changes in Medicaid?"
That sort of blatently partisan attack on Southern states is risible. Twenty six states joined in suit against the ACA. This is a historic majority of the United States, and exceeds by at least a factor of two the number of "southern states."
As for refusing "the changes in Medicaid" your post doesn't disclose enough about your surmise to definitely state that you are not aware of the nature of those changes. The clues are there, however, because you appear to link the attitudes about states rights regarding "Negroes" at the time of the Civil War to present-day attitudes about the Medicaid expansion.
Any such argument is unnecessarily offensive race-baiting and divisive. The two issues are completely unrelated.
Of course, you can probably argue the reason that you believe issues at stake in teh Civil War are just like Medicaid expansion.
Then, we will have a basis to determine your understanding of the Medicaid expansion, and the reason that "liberal" justices agreed that Congress adopted an unwarranted means to accomplish it.

[Alfred Brophy]

Anon,

Just what are you talking about?

My point is that if someone is going to refer to the liberty-enhancing aspects of federalism that they should acknowledge that the 1787 Constitution's federalism was rejected by our nation during the Civil War and that rejection is shown by the Reconstruction Amendments, as well as in the acts of valor at places like Gettysburg. And I'd be interested in hearing whay someone -- perhaps you -- who takes the originalism argument seriously thinks that it's appropriate to continue to talk about 1787.

[anon]

Al:
I was reacting to AGR's post, from which I quoted. Here is a more full quote from it:
"I think it is because the Civil War amendments were designed to bring black people into citizenship. That is an enterprise about which many in this country remain ambivalent. ... Any bets about which states will more likely refuse to accept the changes in Medicaid?"
I thought your post was thoughtful, and thought-provoking. Moreover, I find most of your posts interesting, civil, and thoughtful. And, I don't think that you engage in race-baiting, as perhaps some others might. I particularly enjoy your trivia posts.
Suffice it to say I can't imagine reacting as I did to AGR's post to one of yours.

[AGR]

The South, where I grew up, has to live with its history. But are you going to say that race has not been a significant part of the white south's resistance to federal intervention throughout the years? Are we supposed to forget that now because it makes people today uncomfortable to remember what the south has been like for blacks from the earliest times there? Until the Great Migration, in the early part of the 20th Century, the vast majority of black people were trapped in the south. Before the Civil War, during the Civil War, and afterward, white southerners (not every single one of them, of course) wanted to be left alone to do what they pleased with "their Negroes". That is not debatable. They said it...over and over and over again. In the 1930s(!) FDR was afraid to support an anti-lynching bill (!?) out of fear of the white South's reaction.

I was responding to Al's overall question why the Constitution of the "original founders" is the one people talk about all the time, and not the Constitution wrought by the post-Civil War and the amendments to that document. I stand by my statement. There is great ambivalence about the original purpose of those amendments, and from the very beginning, there was a move to neutralize the power of the ideas of the men who helped craft them-- to make it about something other than bringing blacks into full citizenship. Think of how different things would be if we fetishized the original intent of the drafters of those amendment in the way we pore over Federalist 10, and the other writings of the drafters of the Constitution and the Bill of Rights.

If you go back to my original statement, I noted ambivalence on the part of many in this country. I did not confine that to the south. There is no question, however, that from debate over the crafting of the original Constitution, the fortunes of black people (then largely controlled by white slaveowners) have been on the minds of the leaders of the south and their constituents, who up until the 1960s tried to keep blacks subjugated and out of the political process. Really? Are we supposed to forget this, and act as if it never happened and that it just disappeared in the 1960s with passage of Civil Rights legislation. Does anyone who is a historian think that attitudes that went as deep as those did just disappeared overnight-- the habits of centuries?

We disagree that there is no link between attitudes about federal intervention into state functions and race. It has been there from the beginning. It's not the only thing, but I believe the demonization of the federal government that one sees in the south, with particular vehemence, is a legacy of the region's history with slavery and race. You say I'm race baiting when I raise this history. That's a way of denying the continuing power of history and avoiding the question.

Sure lots of states signed on to combat the ACA. We'll see what happens when the rubber hits the road and they have to turn down the money. I could be dead wrong, but I would bet more southern states will be more likely to do that.

[Adam]

But looking for example at the judiciary's treatment of state sovereign immunity - upheld originally - as an element of that originalist federalism, the pre-Civil War conception of the state versus the national never really changed.

I understand what is being said here on the question, but even after the Civil War, the states ad entities with interests separate from the national government never ceased.

[anon]

AGR states: "We disagree that there is no link between attitudes about federal intervention into state functions and race."
Justices Breyer and Kagan expressly joined in Part IV of Robert's majority opinion that "the Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion."
Hmmmm ... so, do Justices Breyer and Kagan need to be educated about the basis for their opinion? Is their opposition to this exercise of federal power based on uncertainty about "bringing blacks into full citizenship"?
Apparently, yes, according to AGR. AGR states that attitudes about race are linked to a position on the Medicaid expansion because racists in the South learned to despise the federal government and have never changed.
But, according to AGR, this link between attitudes about federal power and race is not limited to the South. AGR emphasizes the need to understand how "many" persons in this country, not only those in the South, are still not sure about "bringing blacks into full citizenship."
Therefore, he says, the Southern states won't be going along with Medicaid expansion, but perhaps other states also will not go along. The majority of those who don't go along will be in the South, however, AGR predicts.
These silly accusations are so sad in my view because these sort of statements are off-the-mark and invite a race-based analysis of the present struggle regarding the Medicaid expansion.
We don't need a history lesson or lecture about race to understand the Medicaid expansion. We don't need to create a debate about race with respect to every issue.
As Al stated in the start to this thread, we do need to consider the entire Constitution in deciding whether the Medicaid expansion violated legitimate views about Constitutional federalism.
Unlike AGR, apparently, I am confident that Justices Breyer and Kagan did so. And, I am also confident that they didn't spend even a moment thinking about how their decision would be in keeping with opposition by anyone at any time to "bringing blacks into full citizenship."

[AGR]

What is the invocation of Justices Breyer and Kagan supposed to accomplish here? Their reasons for coming to the decision do not negate my argument about tendencies in the south. People can have different reasons--different ways--of arriving at a conclusion. Think of the Court. One justice writes an opinion concurring in a result, but offers his/her own separate-- completely different rationale for it. I offered one to explain the recurring phenomenon of southern resistance to things federal. You respond with the intimation that things cannot be about race if some of the people involved are known to be liberal. That is one way discussions of the role that race has played in American history, and still plays in the country, get shut down.
Of the six states who spoke most vociferously about rejecting stimulus money, four were southern-- the other two being Idaho and Alaska, who have their own narratives about their connections to Washington. Three out of the four who are said to be holding firm against the Medicaid expansion are southern, even though they are states with among the poorest and most needy citizens in the country, a disproportionate number of whom are black. It was the same with stimulus money. Rationales were offered, paeans to “freedom”, just as in the sixties and before, white southerners offered their “way of life” to ward off critiques about the status of blacks in their society. Those words and phrases have meaning, and have to be examined in their historical and social contexts.
We are not going to meet on this. Legacies of slavery and race have helped shape white southern attitudes about the relationship between the federal and state government—and I have to make the racial distinction because black southerners have not, generally, seen things the same way. Not all white southerner have had the same view, either. But the fact that there is usually a huge divergence between white and black southerners’ attitudes about federalism should be a tip off that something is going on here. There are cultural and historical reasons why many in the south have always, and continue to be, particularly wary of federal involvement in their states. That attitude has more resonance in some eras than others, of course. But it is a recognizable feature of the region. It is often the case that those operating under the influence of a culture may not even know the origins of their beliefs. Calhoun still lives.

[Alfred Brophy]

I'm getting back to this discussion late, unfortunately.

One of the important points AGR and I share is that invocations of the supposed liberty-enhancing aspects of federalism have been used repeatedly both pre-Civil War and post-War to prevent laws that enhance African Americans' rights. We're not talking about racial equality, but even basic rights. There are so many examples one might refer to here -- AGR refers to the anti-lynching legislation (often it was opposed on constitutional grounds that it exceeded Congress' power). And the Civil Rights era is filled with examples of this as well. As AGR aptly points out, Calhoun's ideas remain disturbingly resilient.

What I'm increasingly surprised by is how we've allowed people who emphasize the liberty-enhancing aspects of federalism to get away with invocations of the Founding Era for so long without taking account of just how much the run up to Civil War and then its aftermath changed the Founding Era's view of federalism. Why is it that people who know this subsequent history don't emphasize that more? Seems like that's an important response to invocations of federalism in both scholarship and jurisprudence.

Ok -- shifting gears for a moment. Anon, thanks for the kind words on trivia questions. I hope to have some more shortly, though I'm really trying to keep focused on edits on University, Court, and Slave, so I'm likely to be thinking mostly about pre-Civil War jurisprudence until school starts.

Happy Independence Day to you all.

[anon]

I don't disagree at all that Southern attitudes toward federal power have been infected by the legacy of slavery.
What I do dispute is that Justices Breyer and Kagan, because they expressly agreed with Roberts on Medicaid expansion, were somehow unknowingly advancing an "anti black agenda" or attemting to deprive blacks of "full citizenship" ... I think that link is totally specious.
And, I do believe that these thoughtful Justices were fully cognizant of the effect of all of the provisions of the Constitution, including those added after the Civil War.
A constant preoccupation with finding racism where it doesn't exist is simply divisive and unnecessary. As AGR points out, Utah and Alaska are not opposing Medicaid expansion owing to racism, but rather, owing to attitudes about federalism.
Every position taken in politics is not linked to race. Attitudes about federal power exercised to coerce the states, are not always guided by a motivation to deprive black people of full citizenship.
In this case, again, it is simply a weak claim to contend otherwise.

[Alfred Brophy]

Anon,

You say "these thoughtful Justices were fully cognizant of the effect of all of the provisions of the Constitution, including those added after the Civil War." What's the evidence of this? Not the rhetoric in the joint dissent. They talk about the Framers and their affection for structural protections (in this case federalism). Where's the evidence they thought in any way that our country's experience with Civil War or the Reconstruction amendments altered our federalism?

This is increasingly making me think that there's something worth writing about how federalism decisions ignore the Civil War.

[AGR]

About to catch the fireworks! But, you are right, Al. This is fertile ground for investigation. I seem to recall that Akhil Amar has written on the subject of the drafters of these amendments as "founders/framers".

[anon]

Al
"What I do dispute is that Justices Breyer and Kagan, because they expressly agreed with Roberts on Medicaid expansion, were somehow unknowingly advancing an "anti black agenda" or attemting to deprive blacks of "full citizenship" ... I think that link is totally specious.
And, I do believe that these thoughtful Justices were fully cognizant ..."
The reference was not to the joint dissent, but to Justices Breyer and Kagan.

[AGR]

Who said that Justices Breyer and Kagan were advancing an "anti-black agenda" or "attempting to deprive blacks of 'full citizenship' "?

[Alfred Brophy]

I see Anon. Thanks for clarifying this.