I've expressed surprise before about how pre-Civil War visions of federalism crop up in 21st century opinions. And I had that same reaction when I heard Chief Justice Roberts referring to the equal dignity of states in Shelby County, because I so associate that argument with John C. Calhoun's arguments protecting southern states against federal government infringement on slavery. Calhoun built an entire constitutional world around the idea that the federal government could do nothing to infringe on the rights of states -- and that meant Congress couldn't tax them disproportionately (or the product of slave labor) or exclude slavery from the territories, for instance. Of course just because one section used the equal dignity argument for invidious purposes does not mean that it's illegitimate in all other circumstances. I would have thought that the Civil War had clipped a lot of the power of the equal dignity argument -- just as it clipped a lot of ideas about states rights in the popular imagination, even in the south.
Anyway, Joseph Fishkin has a very fine and brief essay up on the career of the equal dignity argument post-Civil War. Here is his abstract:
The plaintiffs in Shelby County v. Holder argue that section 5 of the Voting Rights Act should be struck down because it offends the “equal dignity" of the covered states — an argument the Court appeared to credit in its last brush with section 5 in NAMUDNO. This Essay, written in advance of the decision in Shelby County, critically examines this equal dignity of the states argument and situates it in a larger context. Americans have been fighting for 150 years, since the Civil War and Reconstruction, about the structural implications of the events of 1861-70 for the sovereignty, dignity, and equality of the states — especially the Southern states. The implications of adopting the “equal dignity” of the covered states as a constraint on Congress’s Reconstruction Power are deeply problematic and profound.
The image is of John C. Calhoun's office at Fort Hill Plantation on the Clemson University campus.
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