103 Colum LRev

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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
I.
COLLECTIVE MEMORY, NATIONAL IDENTITY, AND CONSTITUTIONAL INTERPRETATION .............................
II. III.
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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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
EXORDIUM
"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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"[A] reconstructed fountain," he insisted, "would only encourage the public to forget what had happened to the original. '5 Remembering not just the fountain, but its absence and the circumstances surrounding its removal required something more, or, as it happened, something less. In order "to rescue the history of this place as a wound and as an open question, to penetrate the consciousness of the Kassel citizens so that such things never happen again," 6 Hoheisel proposed and built a "negative form" monument-a hollow concrete replica of the original fountain, inverted, "mirror-like," so that its base sits at ground level in the square and its tip juts twelve meters into the ground. 7 The surface of the square now conforms to the outline of the fountain's base, with "thick glass windows" at the center and an iron grate around the borders through which water cascades to the tip below.8 "As we enter the square," Young describes, "water fills narrow canals at our feet before rushing into a great underground hollow, which grows louder and louder until finally we stand over the Aschrott-Brunnen. Only the sound of gushing water suggests the depth of an otherwise invisible memorial, an inverted palimpsest that demands the visitor's reflection." 9 In the square a bronze tablet describes the loss of the original fountain, but the tablet is not the primary site of memory."' Instead, the negative-form monument shifts the burden of memory directly to its visitors, announcing the absence of the original fountain through the dislocated sound of rushing water and pressing the city's ugly, "subterranean history" to consciousness. Visitors, Young and Hoheisel insist, become the memorial: [A]s the only standing figures on this flat square, our thoughts rooted in the rushing fountain beneath our feet, we realize that we have become the memorial. "The sunken fountain is not the memorial at all," Hoheisel says. "It is only history turned into a pedestal, an invitation to passersby who stand upon it to search for the memorial in their own heads. For only there is the memorial to be found.""I Hoheisel's negative-form monument thus remembers an absence "by re12 in producing it" "precisely duplicated negative space." 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. To avoid the "generic liabilities of monuments," artists like Hoheisel are using the
5. Id. 6. Id. 7. Id. at 45. 8. Id. 9. Id. 10. See id. 11. Id. at 46. 12. Id. at 45.
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techniques of "Gegen-Denkmal (countermonument)." 3 Thus when Jochen and Esther Gerz were invited by the city of Hamburg to create a "Monument Against Fascism, War and Violence" in the mid-1980s, they immediately recognized the contradiction of using traditional monumental forms. "To their minds, the didactic logic of monuments, their demagogical rigidity, recalled too closely traits they associated with fascism itself." 14 So they sought to design "a monument against itself: against the traditionally didactic function of monuments, against their tendency to displace the past they would have us contemplate-and finally, against the authoritarian propensity in all art that reduces viewers to passive spectators."15 The result is a disappearing monument: a "twelve-meter-high, onemeter-square pillar... made of hollow aluminum, plated with a thin layer of soft, dark lead," which sinks into the ground at one-and-a-half-meter increments as citizens and visitors score the lead with a steel-pointed stylus. 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 . . . just beyond a dioxin dump"), they explicitly invited desecration of the monument: We invite the citizens of Harburg, and visitors to the town, to add their names here to ours. In doing so, we commit ourselves to remain vigilant. As more and more names cover this 12 meter tall lead column, it will gradually be lowered into the ground. One day it will have disappeared completely, and the site of the Harburg monument against fascism will be empty. In the end, 17 it is only we ourselves who can rise up against injustice. As Young notes, "The more actively visitors participate, the faster they cover each section with their names, the sooner the monument will disappear." 18 Once completely gone, the Gerzes plan to cover the top surface of the monument with "a burial stone inscribed to 'Harburg's Monument against Fascism,"' leaving the "burden of memory" to its visitors alone. 19 A "self-abnegating monument," Young insists, is an appropriate tool for recalling the Holocaust without, in the very act of remembering, reducing it to a simple past: How better to remember forever a vanished people than by the perpetually unfinished, ever-vanishing monument? As if in mocking homage to national forebears who planned the Holocaust as a self-consuming set of events-that is, intended to de13. Id. at 28. 14. Id.; see also Michael Gibson, Hamburg: Sinking Feelings, Art News, Summer 1987, at 105, 105-07. 15. Young, supra note 1, at 28. 16. Id. 17. Id. at 28, 30 (quoting inscription near monument's base). 18. Id. at 30. 19. Id.
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stroy all traces of itself, 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. As the self-destroying sculpture ofJean Tinguely and others challenged the very notion of sculpture, the vanishing monument similarly challenges the idea of monumentality and its implied corollary, 1 2 permanence. Of course, people did more than simply sign the monument and solemnly gather to observe its gradual disappearance. Names were scratched out and superimposed on others; love notes, caricatures, the ' inscription "Ausldnder raus,"2 1 and swastikas "inevitably" appeared; some citizens even complained that the monument was simply "a trap for graffiti." 2 But the Gerzes maintained that, contrary to the logic of traditional monuments (permanence, inviolability, singular meaning), their project embraced these breaches in commemorative ritual. "As a social mirror, [the countermonument] becomes doubly troubling in that it reminds the community of what happened then and, even worse, how they now respond to the memory of this past." 2- Thus the Gerzes intended it from the start "to torment ...[to] objectify] ...not only the Germans' secret desire that all these monuments just hurry up and disappear, but also the urge to strike back at such memory, to sever it from the national body like 24 a wounded limb." 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."2 5 In his design, "pedestrians strolling along the Sonnenallee, next to the sportsground (former site of the KZ-Aussenlager [satellite concentration camp]), trip a light-beam trigger, 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."'26 The text stretches from the sidewalk, up the wire fencing surrounding the sports field, across the field, and into the trees. As Radermacher emphasizes, "the site alone cannot remember" since all vestiges of the labor camp are gone, but the light projection memorial "catches visitors unaware . .. intrudes itself into the pedestrians' thoughts. '27 Even the act of avoiding the light trigger, by ducking or
20. Id. at 28, 31. 21. Id. at 37 ("Foreigners, get out," marking, as Young notes, present German "antipathy toward more recent national 'guests"'). 22. Id. at 35. One local shopkeeper said, "They ought to blow it up." Id. at 34. 23. Id. at 35. 24. Id. at 34. 25. Id. at 40. 26. Id. During World War II, the German branch of the American firm National Cash Register Company bought the property and btilt a factory and barracks for slave laborers. Hundreds of foreign and Jewish women were brought to the site for forced labor. Some escaped later in the War after being moved to the Ravensbrftck concentration camp. See id. at 42. 27. Id. at 41.
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walking on the other side of the street, requires remembering the presence of the projected memorial. As Young puts it, "to avoid the memorial here, we would first have to conjure the memory to be avoided: that is, we would have to remember what it is we want to forget." 28 Notwithstanding (or perhaps because of) the proliferation of these and other countermonuments on the German landscape, "Holocaust memorial-work in Germany today remains a tortured, self-reflective, even paralyzing preoccupation. '29 There is, as Young observes, an "essential '30 paradox in any people's attempt to commemorate its own misdeeds. Even if "the victors of history have long erected monuments to their triumphs and victims have built memorials to their martyrdom, only rarely does a nation call upon itself to remember the victims of crimes it has perpetrated." 31 Sustaining public faith in the sacred commitments of any political community (but especially large, heterogeneous nation-states) requires sophisticated mnemonic technique-a complex interplay of memory and forgetting. Public commemoration goes, most commonly, 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. So in a kind of "reversed ventriloquism," as Benedict Anderson claims, nations have "learned to speak 'for' dead people"-to fashion from their deaths affirming narratives that lend coherence, trajectory, and emotional charge to national identity. 33 Hence the "state-sponsored monument's traditional function as self-aggrandizing locus for national 34 memory. And hence the paradox in a nation building monuments to its own misdeeds, especially when those misdeeds rise to the level of mass historical injustices. How, we might ask with Young, "does a state incorporate its crimes against others into its national memorial landscape," when the very purpose of such a landscape is to sustain faith in the national project, to celebrate its successes and the inviolability of its core values, "to affirm the righteousness of [its] birth, even its divine election"?- 5 "How does a
28. Id. 29. Id. at 20. 30. Id. at 34. 31. Id. at 21. 32. See id. at 2 ("The matrix of a nation's monuments emplots the story of ennobling events, of triumphs over barbarism, and recalls the martyrdom of those who gave their lives in the struggle for national existence-who, in martyrological refrain, died so that a country might live."); see also James Tatum, Memorials of the American War in Vietnam, 22 Critical Inquiry 634, 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, as well as its celebration of victory in a war for independence."). See generally Pierre Nora, Between Memory and History: Les Lieux de Mgmoire, Representations, Spring 1989, at 7. 33. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism 198 (rev. ed. 1991). 34. Young, supra note 1, at 21. 35. Id. at 2, 22.
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state recite, much less commemorate, the litany of its misdeeds, making them part of its reason for being? Under what memorial aegis, whose rules, does a nation remember its own barbarity,""" without succumbing to what Nietzsche called "a consuming historical fever"?3 7 Indeed, 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,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, its deepest perversions of its core values? In short, is the collective memory of any nation "plastic"' 4" enough for the historical consciousness from which countermonuments spring?
I. COLLECTIVE MEMORY, NATIONAL IDENTITY, AND
CONSTITUTIONAL INTERPRETATION
These questions are not merely aesthetic, a matter for local historical societies and memorial commissions to debate with the artists who serve them. A compelling "narrative of 'identity"' and compelling symbols of that narrative are imperative, Anderson argues, to the process of collective imagination that generates "emotional legitimacy" for the national project. 4 1 I would go further than Anderson, though. Stable and coherent national narratives do not simply provide emotional legitimacy. In modern liberal democracies, where sovereign power operates on the principles of consent, public accountability, and constitutional restraint, 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.
36. Id. at 22. 37. Friedrich Nietzsche, On the Advantage and Disadvantage of History for Life 8 (Peter Preuss trans., Hackett Publ'g Co. 1980) (1874). There is, Nietzsche warns, "a degree of doing history and an estimation of it which brings with it a withering and a degenerating of life ... a degree of insomnia, of rumination, of historicalsense which injures every living thing and finally destroys it, be it a man, a people or a culture." Id. at 7, 10. 38. Young, supra note 1, at 6. 39. Nietzsche, supra note 37, at 11. 40. Nietzsche, supra note 37, at 10 ("To determine ... the limit beyond which the past must be forgotten if it is not to become the gravedigger of the present, one would have to know precisely how great the plastic power of a man, a people or a culture is."). 41. Anderson, supra note 33, at 4, 205. Minimally, that project includes the integration of heterogeneous and geographically dispersed populations into a functional unit of sovereignty, what Anderson calls an "imagined community," and the mobilization of distinct individuals for sacrifices necessary to meet national objectives. See id. at 6-7. See generally Maurice Halbwachs, On Collective Memory (Lewis A. Coser ed. & trans., Univ. of Chicago Press 1992) (1952). 42. See Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 4 (1983) ("No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning."); Scott A. Sandage, A Marble House Divided: The Lincoln Memorial, the Civil Rights Movement, and the Politics of Memory, 1939-1963, 80J. An. Hist. 135, 136 (1993)
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Collective memory, then, has deep legal and political salience. It is arranged, deployed, and contested not simply on commemorative days and through public monuments and rituals, but in and through the institutions of state power. For all their formal insulation from the demands of popular consciousness, it is primarily the courts that bear the explicit institutional burden of collective memory. All institutional actors take oaths of allegiance in one form or another, but courts are specially charged with remembering and enforcing prior commitments against the public and private demands of the present. This is obvious with respect to constitutional adjudication. As Chief Justice Marshall famously declared in Marbury v. Madison, "The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written .... It is emphatically the province and duty of the judicial department to say what the law is." 43 But, quite apart from the question of fidelity to founding instruments, justice in common law regimes is structurally embedded in an economy of memory. As Alfred Kelly has noted, "When a court ascertains the nature of the law to be applied to a case through an examination of a stream of judicial precedent, after the 44 time-honored Anglo-American technique, it plays the role of historian. Even more fundamentally, James Booth insists, justice "is in one of its key dimensions the memory of evil past": The Furies, Daughters of the Night, who "hold the memory of evil," labor mightily to ensure that the evil they remember, the memory of miasma or guilt-pollution, does not pass into oblivion. In their undying search for those tainted by guilt (the polluted), the Furies are the handmaidens of justice. They are its memory, ensuring that the passage of time does not overwhelm 45 the work of justice. A trial, on this register, "is an assertion of the power of memory-justice. Memory seizes the crime, keeps it among the unforgotten, and insists on '46 retribution. Courts, in sum, are mnemonic institutions par excellence, and Young's provocative questions about the capacity to remember national misdeeds take on added urgency when applied to adjudication. What follows, for instance, if we ask not how to remember or represent the absence ofjustice in public space, but in the construction and interpreta(recounting civil rights movement's strategic appropriation of Lincoln's memory and monument). 43. 5 U.S. (1 Cranch) 137, 176-77 (1803) (emphasis added). 44. Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 Sup. Ct. Rev. 119, 121; see also I Alexis de Tocqueville, Democracy in America 276 (Phillips Bradley ed., Vintage Classics 1990) (1835) (describing American legal profession's deep commitment to past through precedent). 45. W.James Booth, The Unforgotten: Memories ofJustice, 95 Am. Pol. Sci. Rev. 777,
777 (2001) (citations omitted). 46. Id. at 779; see also id. at 786.
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tion of sacred national texts? If we take countermonuments to signify a specific form of historical consciousness-a method of memory (or "countermemory," 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, with all its didactic, demagogic, and amnesic liabilities? In the American context, these questions have special relevance to the work of interpreting the Reconstruction Amendments. Chattel slavery and segregation are historical injustices of a magnitude not unlike the crimes responsible for the problem of memory Germany now confronts. Moreover, the Reconstruction Amendments represent self-conscious attempts to publicly address the fact of historical injustice through higher law-making. They therefore foist unique problems of memory onto the courts-problems quite distinct, I believe, from the interpretation of other parts of the Constitution. 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, its clear and ambitious break with that past eases the work of memory. The evils of a prior regime can be remembered (and disowned) as such: as the evils of another. Far from diminishing the authority of the founding instrument, collective consciousness of these evils (even if falling well short of collective consensus) tends to enhance the legitimacy of the Constitution. The Reconstruction Amendments, by contrast, mark injustices that cannot be disowned, injustices opaquely but deliberately inscribed in the founding instrument itself, injustices that are unavoidably American-inseverable from the national body. 47 And unlike other constitutional amendments, many of which contain equally Delphic language in response to perceived or potential injustices, the problem of memory with respect to the Reconstruction Amendments is compounded by embarrassing defects (lawlessness, to be blunt) in their ratification and by the spectacular failure of democracy against which they were written. Chattel slavery flatly contradicts the most basic principles of liberal democratic government. It cuts, as Ralph Ellison has written, "to the moral heart of the American social drama. ' 48 And democracy was, the War and Amendments painfully remind us, inadequate to the task of eradicating it.
47. See Harold M. Hyman & William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835-1875, at 89-90 (1982) (listing slavery compromise provisions of Constitution of 1787). As Robert Meister insists, "the meaning of rights depends on history," so "[i)n the aftermath of evil, liberal constitutions do not merely enshrine abstract principles of justice; they also memorialize particular histories of injustice." Robert Meister, Forgiving and Forgetting: Lincoln and the Politics of National Recovery, reprinted in Human Rights in Political Transitions: Gettysburg to Bosnia 135, 163-64 (Carla Hesse & Robert Post eds., 1999) (1995). 48. Ralph Ellison, Change the Joke and Slip the Yoke, in The Collected Essays of Ralph Ellison 100, 103 (John F. Callahan ed., 1995). For similar reasons, the Nineteenth Amendment is perhaps another candidate for the method of countermemory. See Reva Siegel's revealing analysis in Reva B. Siegel, Collective Memory and the Nineteenth
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Thus the problem of memory with the Reconstruction Amendments differs from other questions of constitutional interpretation. Memory here confronts the paradox Young identifies: the insatiable temptation for a nation to elide its grave misdeeds in the very act of remembrance. In what follows, I argue that this temptation-what, with Nietzsche, we may call the logic or desire of monumental history-has dominated judicial interpretation of the Reconstruction Amendments. 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. The root causes, however, antedate not only the decisions of the current Court but the Reconstruction-era Court and the Reconstruction Amendments themselves. To trace this strange history will not require the revelation of new historical evidence; the primary and secondary sources are well recognized and long studied. I begin, instead, by describing the historical consciousness of countermemory. 49 With this alternative conceptual framework set out, 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. 50 This is so, I suggest, 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," and the puzzles of federalism and separation of powers with which it was 51 inextricably intertwined, 'Just hurry up and disappear." The Reconstruction Amendments are thus ripe for interpretation as countermonuments-monuments against the axioms that justified slavery (primarily, states' rights and racism), monuments that reproduce these principles "in precisely duplicated negative space. '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, the Constitution did not." Constitutional scholars have recoiled
Amendment: Reasoning About "The Woman Question" in the Discourse of Sex Discrimination, in History, Memory, and the Law 131, 152, 179 (Austin Sarat & Thomas R. Kearns eds., 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"); Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 948, 1022 (2002) (criticizing "[e]rasure of the Nineteenth Amendment from our collective memory and constitutional canon"). 49. See infra Part II. 50. See infra Part III. 51. See Young, supra note 1, at 34; see also supra note 24 and accompanying text; infra note 174 and accompanying text. 52. See supra note 12 and accompanying text. 53. Thurgood Marshall, Commentary: Reflections on the Bicentennial of the United States Constitution, 101 Harv. L. Rev. 1, 4 (1987) (emphasis added). Justice Marshall is not
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in horror from this proposition, 54 and the Supreme Court, from nearly the start of the Union, has been categorically indisposed to think Marshall's thought. "[C]ollisions may take place," Chief Justice Marshall admitted in Cohens v. Virginia: But a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it may be 55 destined to encounter. But the Civil War and Reconstruction were more than mere collisions-a perfect storm perhaps; in any event, more than the Framers provided for. Or so Justice Marshall and the Reconstruction Amendments themselves powerfully suggest. Rather than recoil from Marshall's thought, I hope to 56 show that countermemory reveals its deep salience. Of course, we still shall have to ask whether his thought stands for a viable mode of constitutional interpretation, a mode of historical consciousnessjudges can ethically embrace. (Marshall's utterance, it is worth noting, came from his Reflections on the Bicentennial of the United States Constitution,57 a speech, not an opinion for the Court.) 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. But, in view of the revivalism driving the current Court's federalism jurisprudence, I think the inquiry worth making. We already may have entered a period of "radical" constitutional 8 5 interpretation.
alone in insisting that the legacy of slavery matters deeply to constitutional interpretation. See Derrick Bell, Learning the Three "I's" of America's Slave Heritage, 68 Chi.-Kent L. Rev. 1037, 1041 (1993); Sanford Levinson, Slavery in the Canon of Constitutional Law, 68 Chi.-Kent L. Rev. 1087, 1104 (1993); Sanford Levinson, Why I Do Not Teach Marbuiy (Except to Eastern Europeans) and Why You Shouldn't Either, 38 Wake Forest L. Rev. 553, 560 (2003) [hereinafter Levinson, Marbury] ("It is difficult to think of any single issue that is more important to American constitutionalism, however defined, than chattel slavery."). 54. See, e.g., Laurence H. Tribe, American Constitutional Law 10 n.2 (2d ed. 1988). Tribe writes that Marshall's statement remains a radical overstatement .... This treatise treats the Constitution as it stands in 1987 as the contemporary, amended version of a text traceable to 1787-not in an unbroken line, to be sure, but in a historically connected set of processes. That those processes were anything but smooth ... does not require abandoning the view that it is to the entire Constitution, and not just some parts, that we owe our allegiance. Id. 55. 19 U.S. (6 Wheat.) 264, 387 (1821). 56. See infra Part IV. 57. See Marshall, supra note 53. 58. See United States v. Lopez, 514 U.S. 549, 615 (1995) (Souter, J., dissenting) (warning that case could have "epochal" significance); id. at 602 (Stevens, J., dissenting)
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CONSTITUTION AS COUNTERMONUMENT2 II.

THE METHOD OF COUNTERMEMORY
2003
Countermemory is defined by a principle of resistance. It resists not only the self-aggrandizing, didactic logic of what Nietzsche calls "monumental history" but the paralyzing, preservationist impulse of "antiqua59 rian history," and even the truth-seeking revisionism of "critical history. 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. 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, that in them the high points of humanity are linked throughout millennia, that what is highest in such a moment of the distant past be for me still alive, bright and great"; antiquarianism's promise of "the contentment of a tree with its roots, the happiness of knowing oneself not to be wholly arbitrary and accidental, but rather as growing out of a past as its heir"; and critical history's misguided "attempt, as it were, 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. In the German countermonuments, for instance, we find that "any number of cherished memorial conventions" are simply "flout[ed]": [Their] aim is not to console but to provoke; not to remain fixed but to change; not to be everlasting but to disappear; not to be ignored by passersby but to demand interaction; not to remain pristine but to invite ... violation and desanctification; not to accept graciously64the burden of memory but to throw it back at the town's feet. Countermonuments are built to throw back the burden of memory-to resist, in other words, the dependence of collective memory on didactics and collective amnesia. If traditional monuments do "not remember events so much as bury them altogether beneath layers of national myths and explanations"; if they "'coarsen' historical understanding as much as they generate it"; if instead of "embodying memory, the monument dis(agreeing "with Justice Souter's exposition of the radical character of the Court's holding and its kinship with the discredited, pre-Depression version of substantive due process"); Philip P. Frickey & Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 Yale L.J. 1707, 1720 (2002) (characterizing federalism cases of 1990s as "radical transformation"). 59. See Michel Foucault, Nietzsche, Genealogy, History, in Hommage d Jean Hyppolite 145 (Presses Universitaires de France 1971), reprinted in 2 Essential Works: Aesthetics, Method, and Epistemology 369, 385-89 (James D. Faubion ed., Robert Hurley et al. trans., 1998). 60. Id. at 385. 61. See Steven Knapp, Collective Memory and the Actual Past, Representations, Spring 1989, at 123, 123 (criticizing revisionism). 62. Foucault, supra note 59, at 380. 63. Nietzsche, supra note 37, at 15, 20, 22. 64. Young, supra note 1, at 30.
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places it altogether, supplanting a community's memory-work with its own material form," countermonuments and the mode of historical consciousness they reflect are committed to a more rigorous form of memory work, one that seeks out and exposes precisely what collective memory 65 wishes (indeed, needs) to forget, what memory resists remembering. Beneath the consoling play of recognitions, then, countermemory reveals discontinuity, "a barbarous and shameful confusion." 66 And for this very reason, countermemory not only depends upon and excavates resistance, it provokes it. It recalls absences, isolates and emphasizes facts inconvenient to the coherence and emotional appeal of collective memory and national identity (without, at the same time, permitting any facile incorporation of these facts back into the national narrative). It therefore deprives history of its force for life," 7 and (more specifically for our purposes), undermines the support collective memory lends to institutional arrangements. 68 Strong medicine should be sparingly prescribed, but, as the German countermonuments suggest, countermemory is an important technique for resisting the elisions mass historical injustices invite in the collective memory of their perpetrators and beneficiaries. Indeed, when responding to mass historical injustices, it may be that justice (at least the dimension of justice that responds to memory) 69 cannot be done without countermemory. 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. Such moments are especially prone to the cathectic predations of collective memory. As Benedict Anderson insists (following Ernest Renan), "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. ' 71 Indeed, for many nations, remembering his65. Id. at 5. 66. Foucault, supra note 59, at 381. 67. As Nietzsche reminds tIs, "[a] 11acting requires forgetting, as not only light but also darkness is required for life by all organisms." Nietzsche, supra note 37, at 10. 68. "An entire historical tradition," Foucault argues, aims at dissolving the singular event into an ideal continuity-as a theological movement or a natural process. "Effective" history, however, deals with events in terms of their most unique characteristics, their most acute manifestations. An event, consequently, is not a decision, a treaty, a reign, or a battle, but the reversal of a relationship of forces, the usurpation of power, the appropriation of a vocabulary turned against those who had once used it, a domination that grows feeble, poisons itself, grows slack, the entry of a masked "other." Foucault, supra note 59, at 380-81. 69. Booth rightly notes the tendency of contemporary theorists to frame justice in terms of the claims of the living, and perhaps also those to come, rather than the dead. Booth, supra note 45, at 777. 70. Anderson, supra note 33, at 201 (quoting Ernest Renan, Qu'est-ce qu'une Nation?, in I Oeuvres Complktes 887, 891-93 (1947)); see also Halbwachs, supra note 41, at 86 (discussing importance of selective memory to successful social transformations).
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torical injustices in such a way as to find reassurance in them has become "aprime contemporary civic duty ...a systematic historiographical campaign."'7 1 Tellingly, 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. (We can be sure, however, that if the Confederacy had succeeded in maintaining its independence, this "civil war" would have been replaced in 72 memory by something quite unbrotherly.) Like the "colossal religious conflicts of mediaeval and early modern Europe" in which the origins of French national identity are retroactively located, and like the "diverting spectacle of a great Founding Father whom every schoolchild is taught to call William the Conqueror" in textbook English history, the war between the states is persistently figured as 73 a "reassuringfratricide." Of course, if Renan is right that "'essence d'une nation, est que tous les individus aient beaucoup de choses en commun, et aussi que tous aient oubli6 bien des choses," 74 it could hardly be otherwise-we desperately need the reassurance. Thus history's connection to collective memory must be severed, or at least suspended, if we are to recover and do justice to what we have lost by seeking that reassurance. And it is countermemory that recalls what collective memory wants to forget.
III.
REMEMBERING/FORGETrING RECONSTRUCTION
The desire for a reassuring national narrative regarding slavery, secession, fratricide, and Reconstruction runs deep indeed. Because the want is so persistent, manifestations of monumental historical consciousness regarding these events abound in our cultural landscape. 75 But I want to focus on one of the most disturbing and potentially far-reaching
71. Anderson, supra note 33, at 200-01. 72. Id. at 201. 73. Id. at 200-01 (emphasis added). 74. Id. at 199 (quoting Ernest Renan, Qu'est-ce qu'une Nation?, in 1 Oeuvres Completes 887, 892 (1947)). My translation reads: "[T]he essence of a nation is that all its individuals have many things in common, and also that all have forgotten many things." 75. See Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1867, at xix-xxiv (1988) (canvassing Reconstruction historiography); Sanford Levinson, Written in Stone: Public Monuments in Changing Societies 33 (1998) [hereinafter Levinson, Monuments] (discussing Civil War monuments and controversies over displaying Confederate Flag in public spaces); Harold M. Hyman, Introduction to The Radical Republicans and Reconstruction, 1861-1870, at xvii, xvii-lxviii (Harold M. Hyman ed., 1967) [hereinafter Radical Republicans] (describing tendentious cinematic depictions of Civil War, southern whites, Yankees, and blacks); Richard Rubin, The Colfax Riot: Stumbling on a Forgotten Reconstruction Tragedy, in a Forgotten Corner of Louisiana, Atlantic Monthly, July/Aug. 2003, at 155, 155; William Gillette, Retreat from Reconstruction, 1869-1879, at 115-16 (1979) (describing Colfax Riot); see also infra note 183.
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contemporary examples. In a line of recent cases, 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, but also its authority to abrogate state sovereign immunity in the exercise of standard Article I powers. Although the Court's jurisprudence in these areas is still developing and (given the narrow majority supporting it) unstable, the opinions mark a bold revival of federalism principles. In what follows, I briefly detail the cases as well as the federalism principles on which they purport to stand. I then argue that this robust strain of federalism is a manifestation of monumental historical consciousness. More precisely, I contend that federalism, in the strong sense the Court has endorsed, is viable only as an expression of monumental historical consciousness-that is to say, only as the result of memory work predicated on forgetting the structural significance of the Civil War and 76 Reconstruction Amendments. A. Revivalist Federalism Though earlier decisions surely hinted at what was to come, 77 the federalism revival began in earnest with a series of decisions in the middle of the last decade. In 1995, the Court struck down the Gun-Free School Zones Act as an impermissible extension of Commerce Clause powers in Lopez v. United States.78 The law made it a federal crime "knowingly to
76. To put it in Anderson's terms, 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. 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, but the focus of this Article is on the suppression of the link between these Amendments and the Court's new federalism jurisprudence. Federalism cases and the memory work they display therefore take center stage. For analyses of the implications of collective memory for the substantive provisions of the Fourteenth Amendment, see generally Pamela Brandwein, Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth (1999), and Meister, supra note 47. While I share Brandwein's conviction that the significance of the Reconstruction Amendments has been obscured by the Court, her analysis does not treat Rehnquist Court cases, see Brandwein, supra, at 7-8; cf. id. at 211-14, and, perhaps more importantly, remains more or less confined within the domain of traditional intentionalist methodology. 77. See, e.g., New York v. United States, 505 U.S. 144, 188 (1992) (holding that Congress lacks power under Commerce Clause to compel states to provide for disposal of radioactive waste produced within their borders); Gregory v. Ashcroft, 501 U.S. 452, 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"). 78. 514 U.S. 549, 583 (1995). In the same year, the Court also split over the states' power to impose term limits on members of Congress. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837 (1995) (Stevens, J., plurality opinion); id. at 844 (Kennedy, J., concurring); id. at 925-26 (Thomas, J., dissenting). The issue provoked vigorots debate between Justice Stevens, writing for the majority and concluding that control over federal
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possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."79 The case is a landmark because, for the first time since its famous 1937 retreat from aggressive Commerce Clause scrutiny,80 the Court "held that a federal statute regulating the citizenry exceeded congressional authority under the commerce power."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. The following year, the Court ruled in Seminole Tribe v. Florida, 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.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. 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, the Eleventh Amendment trumps congressional power when it comes to authorizing private suits to enforce the federal rights it creates. As Chief Justice Rehnquist wrote for the majority, "Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting states. '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, Congress validly abrogates immunity under the enforcement clauses of the Reconstruction Amendments, or the federal government musters the resources to bring suit itself.86 And the Court reached this result even
legislators was not among the reserved rights of the states under the Tenth Amendment, see id. at 802, and Justice Thomas, whose ardent defense of state sovereignty approaches the "constitutional ontology" of antebellum states' rights advocates. See id. at 851 (Thomas, J., dissenting); see also Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78, 98-99 (1995) (drawing comparison between Thomas's position and antebellum views). 79. Lopez, 514 U.S. at 551 (quoting 18 U.S.C. 922(q) (])(A) (Supp. V 1988)). 80. See generally NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942). 81. Frickey & Smith, supra note 58, at 1721. 82. Lopez, 514 U.S. at 562-64. 83. 517 U.S. 44, 72-73 (1996). In defense of state sovereignty, the Court had already imposed a "clear statement rule" on legislative efforts to abrogate sovereign immunity. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (affirming that to abrogate state's Eleventh Amendment immunity Congress must make its "intention unmistakably clear in the language of the statute"). 84. Seminole Tribe, 517 U.S. at 51-52. 85. Id. at 72. 86. Indirectly, of course, the federal government may coerce compliance using its spending power. See U.S. Const. art. I, 8; cf. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 n.13 (1981) (Rehnquist, C.J.) (stating in dictum, "There are
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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. As Rehnquist derisively wrote: "Manifestly, we cannot... assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against nonconsenting States. Behind the words of the constitutional provisions are postulates which limit and control." . . . 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.'Finally, in City of Boerne v. Flores, decided in 1997, 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, 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, by appropriate legislation," the substantive provisions of the Amendment.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) ,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."). And private individuals still have recourse against offending state officials through 42 U.S.C. 1983 (2000) and actions for injunctive relief under Ex parte Young, 209 U.S. 123 (1908). See Nev. Dep't of Human Res. v. Hibbs, 123 S. Ct. 1972, 1994 (2003) (Kennedy, J., dissenting) (noting continuing availability of Ex parte Young). 87. Seminole Tribe, 517 U.S. at 68-69 (quoting Principality of Monaco v. Mississippi, 292 U.S. 313, 322, 326 (1934) (quoting Hans v. Louisiana, 134 U.S. 1, 15 (1890))). The Eleventh Amendment provides: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any Foreign State." U.S. Const. amend. X1. 88. 521 U.S. 507, 535-36 (1997). 89. U.S. Const. amend. XIV, 5. 90. In the earlier case, 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. Employment Div. v. Smith, 494 U.S. 872, 890 (1990). The Court held that the right to free exercise of religion included no exemption from neutral, generally applicable laws such as Oregon's drug statute. Id. at 878-79. "[lIn direct response" to the case, 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." Boerne, 521 U.S. at 512, 515.
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tional actions," 9 1 the standard the Court created to determine when Con92 gress has overstepped its Section 5 authority is remarkably miserly. Each case has been reaffirmed in subsequent decisions striking down or limiting a wide array of congressional enactments, most of which were designed to protect groups that have long suffered unequal treatment at the hands of both public and private actors. 93 But what unifies at least
91. Boerne, 521 U.S. at 519-20. 92. As the Boerne Court put it, "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520. To avoid separation of powers and federalism concerns, 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. The Court has repeatedly suggested that Congress also may legislate to prevent unconstitutional conduct (even if preventive legislation proscribes innocent conduct in the process), but, with the exception of Nevada Department of Human Resources v. Hibbs, 123 S. Ct. 1972, 1994 (2003) (upholding Family Medical Leave Act as valid exercise of Section 5 powers and concluding that statute abrogates state sovereign immunity), no statute has survived the Boerne 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. See United States v. Morrison, 529 U.S. 598, 626 (2000) (citing Katzenbach v. Morgan, 384 U.S. 641 (1966), and South Carolina v. Katzenbach, 383 U.S. 301 (1966)); see also Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power, 78 Ind. L.J. 1, 17-30 (2003) [hereinafter Post & Siegel, Protecting] (criticizing Boerne test and Court's claim of exclusive authority to give Fourteenth Amendment meaning). While it is surely too soon to assess the full impact of Hibbs, 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, it ratifies it, see Hibbs, 123 S. Ct. at 1977-78; (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, see id. at 1984 (Souter, J., concurring); 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.e., congruent and proportional) response to unconstitutional conduct by the states, see id. at 1982 (unlike other groups Congress has sought to protect, "[h]ere . . . Congress directed its attention to state gender discrimination, which triggers a heightened level of scrutiny"; "[b]ecause the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rationalbasis test ... it was easier for Congress to show a pattern of state constitutional violations"); see also Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Polycentric Interpretation of the Family Medical Leave Act, 112 Yale LJ. 1943, 2058 (2003) (criticizing Court's model for reviewing Section 5 legislation in context of Hibbs). In short, notwithstanding the outcome in Hibbs, it remains difficult to imagine prophylactic legislation for other groups surviving the Boerne test. For an analysis of the Court's jurisprudence on groups entitled to heightened scrutiny, see Tribe, supra note 54, at 1436-1672. 93. See, e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 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); United States v. Morrison, 529 U.S. 598, 613-17, 619, 625-26 (2000) (striking down Violence Against Women Act as beyond Congress's commerce powers and its enforcement powers
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the majority opinions in the cases is not any new doctrinal or empirical revelation. Nor are the cases driven (at least in the first instance) by animosity or indifference toward the plight of the groups concerned. Instead, 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. Thus in Lopez, 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, "it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign.'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; statute was designed to provide victims of gendermotivated violence a federal remedy on grounds that state courts were biased against such victims); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (finding that states are immune from suit in federal court for violation of Age Discrimination in Employment Act); Alden v. Maine, 527 U.S. 706, 758-60 (1999) (holding that Congress is without power to subject unconsenting state to suit even in state courts; dismissing suit by state employees against state of Maine for violating overtime provisions of Fair Labor Standards Act); see also Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 Yale L.J. 441, 458 (2000) (criticizing the Court's narrow view of authority under Section 5). For the cases restricting or striking down other federal remedies, see Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 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, but in Article I administrative proceeding), College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 683-84, 691 (1999) (dismissing federal suit for false advertising against state agency under Lanham Act on sovereign immunity grounds), and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 647-48 (1999) (dismissing federal patent infringement suit against state agency on sovereign immunity grounds). 94. 1 say the Court appears to be animated by states' rights rather than animosity toward certain groups benefiting from congressional legislation because, with Nietzsche, we may worry that the Court, as a "connoisseur" of past institutional commitments, 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. Cloaked in this disguise they turn the proper sense of monumental history into its opposite; whether they know it clearly or not, at any rate they act as though their motto were: let the dead bury the living. Nietzsche, supra note 37, at 17-18; see also Post & Siegel, Protecting, supra note 92, at 17-30 (criticizing Supreme Court's arrogation of the "exclusive prerogative to declare constitutional meaning"). 95. United States v. Lopez, 514 U.S. 549, 564 (1995) (emphasis added).
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retained by the States."9 6 And in a concurring opinion purporting to cautiously endorse the Court's break with sixty years of deference to Congress, Justice Kennedy tendered a disquisition on "the significance of federalism in the whole structure of the Constitution," 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, 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. 98 The Court's role is especially important, Kennedy opined, when "the exercise of national power seeks to intrude upon an area of traditional state concern." 99 The Gun-Free School Zones Act offends because "education is a traditional concern of the States," and "[i]n these circumstances, we have a particular duty to ensure that the federal-state balance is not destroyed."1 00 Similarly, in Boerne, 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), 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."1 0 Indeed, but for the concern for states' rights, it's not obvious the Court would have viewed the threat to separation of powers as gravely as it did.
96. Id. at 567; see also id. 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.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495, 548 (1935))). 97. Id. at 575 (Kennedy, J., concurring). Lopez is not the only settingJustice Kennedy has used to offer instruction on the roots of federalism. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) (arguing that Framers were determined to "split the atom of sovereignty"). 98. Lopez, 514 U.S. at 578 (Kennedy, J., concurring) (citations omitted). The assertion that federalism is liberty-enhancing is often linked back to James Madison's Federalist No. 51 and Alexander Hamilton's Federalist No. 28. See, for example, Justice O'Connor's majority opinion in Gregory v. Ashcroft, 501 U.S. 452, 459-60 (1991). 99. Lopez, 514 U.S. at 580 (Kennedy, J., concurring). 100. Id. at 580-81 (citations omitted). Justice Thomas's concurring opinion, far from expressing cautious endorsement of the Court's holding, argues that federalism demands repudiation of the "substantial effects" test altogether. Id. at 584-85 (Thomas, J., concurring). Read with his dissent in U.S. Term Limits, Thomas's views on states' rights are perhaps the most strident on the Court. See U.S. Term Limits, 514 U.S. at 845 (Thomas, J., dissenting). 101. City of Boerne v. Flores, 521 U.S. 507, 534 (1997).
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For the majority, the harm in RFRA was not simply that it defined free exercise more broadly than the Court had, but that the broader definition interfered with the operation of constitutionally innocent state laws-or, put another way, with the states' legitimate exercise of their police powers. By requiring review of any state law that has the incidental effect of burdening a particular religious practice, the Court stressed, RFRA impermissibly burdened states without any evidence that they had engaged in widespread religious discrimination: The substantial costs RFRA exacts, 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 .... Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to 2 maintain separation of powers and the federal balance." In United States v. Morrison, where the principles underlying Lopez and Boerne converge, the Court is even more explicit about protecting federalism principles.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, the majority again insisted that vigorous judicial review is essential to the preservation of dual sovereignty.' 1 - On the question of commerce power, the Court worried that "if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence ... is certain to have lesser economic impacts than the larger class of which it is a part."'' 1 More troublingly for the Court, if Congress may legislate whenever the aggregated economic effects of individual, noncommercial conduct impact interstate commerce, then Congress may reach "family law and other areas of traditional state 7 regulation." 10 However expedient such a consolidation of police power in the national government might seem, the Court concluded: "The Constitution requires a distinction between what is truly national and what is truly local. In recognizing this fact we preserve one of the few
102. Id. at 534, 536. 103. United States v. Morrison, 529 U.S. 598 (2000). 104. 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. Id. at 619. 105. See id. at 616 n.7 ("As we have repeatedly noted, the Framers crafted the federal system of Government so that the people's rights would be secured by the division of power .... No doubt the political branches have a role in interpreting and applying the Constitution, but ever since Marbuiy this Court has remained the ultimate expositor of the constitutional text."). 106. Id. at 615. 107. Id.
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principles that has been consistent since the [Commerce] Clause was adopted."108 On the question of enforcement power under the Fourteenth Amendment, the Court admitted, as it had in Boerne, that Section 5 explicitly permits Congress to "intrud[e] into 'legislative spheres of auton0 omy previously reserved to the States." ' 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." 110 VAWA fails precisely because it transgresses one of these federalism-protecting limits-"it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias." '' The Act not only reaches beyond any "bad" state actors, it usurps state authority to regulate the conduct of its citizens. 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.1 12 "[N]o civilized system ofjustice could fail to provide ... a remedy for the conduct of the respondent" (the male college student who raped the plaintiff seeking damages under VAWA). "But," the Court reasoned, "that remedy must be provided by the Commonwealth of Virginia, and not by the United States."' 13 In the Court's Eleventh Amendment decisions, federalism "reminders" have become positively strident. In language that, on its face, appears only to preclude Congress from authorizing diversity suits against states "by Citizens of another State, or by Citizens or Subjects of any Foreign State," the Court locates a wholesale prohibition on private suits absent state consent." 4 As the ChiefJustice wrote in Seminole Tribe, the text stands for the larger principle "that each State is a sovereign entity in our federal system; and ... that '[i]t is inherent in the nature of sovereignty
108. Id. at 617-18 (citations omitted). 109. Id. at 619 (quoting City of Boerne v. Flores, 521 U.S. 507, 518 (1997) (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976))).
110. Id. at 620. 111. Id. at 626.

112. Id. (criticizing congressional findings of state discrimination against victims of gender-motivated crimes).
113. Id. at 627. In other Section 5 cases, the federalism rationale is equally emphatic. See supra note 93. 114. U.S. Const. amend. XI. See William A. Fletcher, The Eleventh Amendment: Unfinished Business, 75 Notre Dame L. Rev. 843, 848 nn.37-38 (2000) (surveying major scholarly interpretations of Eleventh Amendment); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant ofJurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1033-34 (1983); John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1890-91 (1983).
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not to be amenable to the suit of an individual without its consent."' 11 5 In the Court's most recent extension of Seminole Tribe, Justice Thomas emphasized the historical freight of the proposition, 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. States, upon ratification of the Constitution, did not consent to become mere appendages of the Federal Government. Rather, they entered the Union "with their sovereignty intact. " An integral component of that "residuary and inviolable sovereignty," retained by the States is their immunity from private suits." 16 Viewed in this context, Justice Thomas insisted, the Eleventh Amendment-drafted and ratified to overturn Chisholm v. Georgia, "7 a decision construing the state-citizen diversity clause of Article III, Section 2, to authorize suit against Georgia by a citizen of South Carolina-"does not define the scope of the States' sovereign immunity; it is but one particular exemplification of that immunity."' 18 Thus when Congress authorizes private suits against the states for their failure to abide federal laws, 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. B. Monumentalist Memory Work: Assuring the Survival of Antebellum Federalism Principles The current Court's defense of "dignitary" rights against federal law enforcement efforts, its consistent solicitude for "areas of traditional state
115. Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996) (quoting Hans v. Louisiana, 134 U.S. 1, 13 (1890) (internal quotation omitted) (citation omnitted)). 116. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 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); see also id. at 756 ("To decide whether the Hans presumption applies here ... 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."). 117. 2 U.S. (2 Dall.) 419 (1793). 118. Fed. Mar. Comm'n, 535 U.S. at 753 (emphasis added). 119. Id. at 760 (emphasis added). On the "dignitary rights" theory of state sovereignty, see Alden v. Maine, 527 U.S. 706, 749 (1999) ("Private suits against nonconsenting States... present 'the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties,' regardless of the forum." (quoting Ex parte Ayers, 123 U.S. 443, 505 (1887))), id. at 758 ("Congress must accord States the esteem due to them as joint participants in a federal system, one beginning with the premise of sovereignty in both the central Government and the separate States."), and Seminole Tribe, 517 U.S. 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.'" (quoting Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993))).
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concern," and its obsessive presentiment about consolidating "general police powers" in the federal government or upsetting the liberty-enhancing balance of federal and state powers, are not merely rhetorical flourishes. 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. 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. 120 And, of course, by appearing to recall the kind of "limits" Chief Justice Marshall warned we are preternaturally tempted to forget, the federalism revival lays claim to the ostensibly unimpeachable authority of 21 returning to first principles and founding intentions. This method of legitimating judicial review is well recognized. But deeper mnemonic forces are at play here. The historical consciousness of the federalism revival, the logic of its memory work, turns on a chillingly amnesic reproduction of antebellum conceptions of state sovereignty-something approaching what it would mean for Kassel simply to
120. See, e.g., United States v. Morrison, 529 U.S. 598, 622-24 (2000) (limiting United States v. Guest, 383 U.S. 745 (1966), in which concurring Justices expressed view that Congress could prohibit actions by private individuals pursuant to Section 5); Seminole Tribe, 517 U.S. at 66 (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), which held Congress has authority to override states' sovereign immunity when legislating pursuant to Commerce Clause); United States v. Lopez, 514 U.S. 549, 555-57, 561 (1995) (limiting substantial effects test established in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), United States v. Darby, 312 U.S. 100 (1941), and Wickard v. Filburn, 317 U.S. 111 (1942)). 121. As Chief Justice Rehnquist insisted at the outset of his analysis in Lopez: We start with first principles. The Constitution creates a Federal Government of enumerated powers. As James Madison wrote: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." This constitutionally mandated division of authority "was adopted by the Framers to ensure protection of our fundamental liberties." 514 U.S. at 552 (emphasis added) (citations omitted) (quoting The Federalist No. 45, at 260 (James Madison) (Clinton Rossiter ed., 1961), and Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)); see also Alden, 527 U.S. at 706 (starting from premise that "[t]he Constitution's structure and history ...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"). As the dissenting opinions suggest, the federalism/nationalism valence of the "first principles" invoked by the majority is far from clear. See infra note 146; see also Harry N. Scheiber, Federalism and the American Economic Order, 1789-1910, 10J.L. & Soc'y 57, 100-15 (1975) [hereinafter Scheiber, Economic Order] (discussing centralization and expansion of federal power in nineteenth century); Harry N. Scheiber, Federalism and the Constitution: The Original Understanding, in American Law and the Constitutional Order: Historical Perspectives 85, 94-95 (Lawrence M. Friedman & Harry N. Scheiber eds., 1978) (describing Madisonian-Hamiltonian division over the "conception of federal-state relationships in the compound system of government they formulated"); Harry N. Scheiber, Redesigning the Architecture of Federalism-An American Tradition: Modern Devolution Policies in Perspective, 14 Yale L. & Pol'y Rev. 227, 233-40 (1996) [hereinafter Scheiber, Redesigning] (discussing conflicts surrounding development of federal powers post-Civil War).
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have rebuilt the Ashcrott-Brunnen in place rather than represent the fact of its destruction and the forces responsible for its absence. Outside this monumentalist framework for thinking federalism, the conditions of entering the Union and the authoritative inferences drawn from "defining feature[s] of our Nation's constitutional blueprint," could not be invoked without simultaneously recalling and giving weight to the paradoxical conditions of saving and re-entering the Union in the 1860s. 122 Our descent into a protracted, internecine war following secession was over nothing, after all, if not the fate of a particularly robust strain of federalism and the grave, anti-democratic injustices it insulated. The assertion is deceptively familiar, almost platitudinous and hollow, but it is just this deceptive familiarity on which the federalism revival relies for interpretive legitimacy. Without a reassuringly familiar register for both remembering and suppressing our most profound democratic failure, a failure of federalism, 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, rather than radically altering, the imagined terms of the Foundingwould stall out. So elisions regarding the Civil War and Reconstruction in the Rehnquist Court's federalism revival should hardly be surprising. Only monumentalist memory work could strip away the conceptual paradoxes, not to mention the moral terror, of a project dedicated to reaching past the ruptures of the 1860s to the robust federalism of the Founding. Monumentalist historical consciousness is all the more necessary if the reach back is to be made to appear self-evident and obligatory. But however ambitious and amnesic this memory work is, the Court's elisions are not sui generis. On the contrary, the monumentalist mode enjoys a rather distinguished pedigree in the nation's collective memory, and the Court has drawn liberally from that memory for credibility in its recent decisions constraining federal power. In Boerne, for instance, the concentration of general police powers in Congress under the Fourteenth Amendment is figured not merely as an affront to federalism principles, a priori, but as one of the more pernicious dangers the Reconstruction Congress and Court assiduously sought 23 to avert.'1 The original draft of the Enforcement Clause, the so-called "Bingham proposal," 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. 1 4 It was tabled, the Court insisted in Boerne, precisely because "Democrats and con122. Fed. Mar. Comm'n, 535 U.S. at 751. Whether, practically and ethically, judges can get "outside" this framework and remain there for purposes of constitutional interpretation is addressed in the next section. 123. Although many decisions were issued after 1877, in this Article I nevertheless refer to the Court under Chief Justices Chase and Waite as the Reconstruction Court. 124. City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
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servative Republicans" in the 39th Congress believed it "gave Congress too much legislative power at the expense of the existing constitutional structure."' 25 Only after changing the language regarding congressional power from "to make all laws necessary and proper," to "to enforce, by appropriate legislation," were concerns in the Reconstruction Congress 1 26 about federal usurpation of general police powers supposedly quelled. And, no doubt to bolster its facile inference from an exceedingly complex historical record, the Boerne Court was quick to add that "[t] he remedial and preventative nature of Congress' enforcement power, and the limitation inherent in the power, were confirmed in our earliest cases on 12 the Fourteenth Amendment."' 7 The Court then cited the Civil Rights Cases, which struck down the Civil Rights Act of 1875, for the proposition that Congress was not authorized to pass "general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the Amendment, they are prohibited from making or enforcing .... The power to "legislate generally upon" life, liberty and property, as opposed to the "power to provide modes of redress" against offensive state action, was "re12 pugnant" to the Constitution. 3 Similarly, in striking down VAWA as beyond Congress's Fourteenth Amendment enforcement power, the Morrison Court drew heavily on the memory of the Reconstruction-era Court regarding the intended scope of that power. "Foremost among [the] limitations" embedded in the history and language of the Fourteenth Amendment, the Court wrote, "is the time-honored principle that the [Amendment], by its very terms, prohibits only state action. . . . 'That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.'-"129 The majority not only cited relevant Reconstruction-era cases to support this 1 proposition (the Civil Rights Cases,' United States v. Harris, 1 and Vir125. Id. 126. "Under the revised Amendment, Congress' power was no longer plenary but remedial. . . .The revised Amendment proposal did not raise the concerns expressed earlier regarding broad congressional power to prescribe uniform national laws with respect to life, liberty and property." Id. at 522-23 (citing Cong. Globe, 39th Cong., 1st Sess. 2542 (1866); Cong. Globe, 42d Cong., 1st Sess. appx. at 151 (1871)). Note, however, that the Court in the Civil Rights Cases used "necessary and proper" interchangeably with "enforce, by appropriate legislation." See The Civil Rights Cases, 109 U.S. 3, 13-14 (1883). 127. Boerne, 521 U.S. at 524. On the complexity of the historical record and the general difficulty of drawing conclusive inferences from mixed motives among authoritative institutional actors, see generally Brandwein, supra note 76, at 1-3; 6 Charles Fairman, Reconstruction and Reunion: 1864-1888 (1971); infra note 172. 128. Boerne, 521 U.S. at 525 (quoting The Civil Rights Cases, 109 U.S. at 15). 129. United States v. Morrison, 529 U.S. 598, 621 (2000) (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948)). 130. 109 U.S. at 3. 131. 106 U.S. 629 (1883).
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ginia v. Rives' 3 2 ), it canonized them, 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, but also from the insight attributable to the Members of the Court at that time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, 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.1 In Boerne, the argument was that the holding of the Civil Rights Cases is true to the intent of the 39th Congress, even if the decision invalidated the enactment of a later Congress composed of many members of the 39th. 1 34 In Morrison, by contrast, the Court seems to suggest that the memory of the Reconstruction Court is dispositive, quite irrespective of whether it accurately reflects the intentions of those who drafted the language of the Fourteenth Amendment. 135 This is a wrinkle to which we shall have to return, since it suggests some dissonance between the Reconstruction Court and Congress over just what the Enforcement Clause empowered Congress to do. 1 36 But for now, 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 fruit of this memory work I shall call the "survival thesis"-the conviction that robust federalism principles survived secession, fratricide, reunion, and Reconstruction 13 7 intact, minus, perhaps, the principle of secession.
132. 100 U.S. 313 (1879). 133. Morrison, 529 U.S. at 622. The Reconstruction Court claimed authority for its own memory on the very same grounds. 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, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning.... Fortunately that history isfresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt. 83 U.S. 36, 67-68 (1872) (emphasis added) (using federalism principles to narrowly construe Section 1 of the Thirteenth and Fourteenth Amendments); cf. id. at 116 (Bradley, J., dissenting) (complaining that majority "evince[s] a very narrow and insufficient estimate of constitutional history"). 134. For analysis of the legislative history leading up to the enactment of the Civil Rights Act of 1875, see generally Gillette, supra note 75, at 186-279. 135. See Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045, 1098-99 (2001) (criticizing Rehnquist Court's ahistorical reliance on the Civil Rights Cases); Levinson, Marbury, supra note 53, at 560-61 (same). 136. See infra notes 150, 162. 137. Harold M. 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. 1975) (1973) [hereinafter Hyman, More Perfect Union]. He writes:
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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, not the nation. A heavy phalanx of Republican politicos including Sherman and Trumbull, and of Republican theoreticians such as John Norton Pomeroy and George Washington Paschal, were state-rights nationalists, suspicious of any new functional path the nation traveled. [During Reconstruction] no centralized leviathan developed in Washington to replace state-centered federalism; no huge national, coercive bureaucracy substituted for local decisionmaking. The over-all War and Reconstruction result was not, as frequently intimated, an absolute increase in positive national powers and functions, but as Carl Friedrich perceived, "a decrease in [state and] local autonomy." Id. at 304-06 (quoting Carl Friedrich, The Impact of American Constitutionalism Abroad 49 (1967)); see id. at 414-15 ("Constitutional permissiveness was never absolute. [R]eluctant essays on Federalism's survival required continued reverence for all states .... the part of Congress concerning the South's states and Negroes were shaped by felt limitations on the allowable functions of government, despite the existence of constitutional theories of near-limitlessness .... "); id. at 385 ("After Appomattox, states' men in Congress and courts were almost always ready to recall that national constitutionalism stressed restraints. When attempting to accommodate administration and law to intensely dynamic industrial, technological, and racial relationships, proponents of increased national duties had to work within a theoretically static federal system."); see also Brandwein, supra note 76, at 85 ("Nationalist strands of Republican thought were accompanied by deep attachments to state power" and "were suspicious of sweeping federal power."); id. at 57 (arguing that Republicans wanted to keep "the 'traditional federal system"' as they understood it); Foner, supra note 75, at 277 ("Federalism also [M]ost Republicans still believed the states retained affected Republican policy-making .... rights beyond the scope of federal intervention, and expected the relatively rapid return of the Southern states as equal members of the Union."); Michael Les Benedict, Preserving the Constitution: The Conservative Basis of Radical Reconstruction, 61 J. Am. Hist. 65, 67 (1974) [hereinafter Benedict, Preserving] ("The distaste of many Republicans for federal intervention in the South was manifest in the Reconstruction program itself. Although they... passed laws and constitutional amendments which appeared to delegate power to the national government . . . . most Republicans never desired a broad, permanent extension of national legislative power." (emphasis added)); Scheiber, Redesigning, supra note 121, at 237, 240 (arguing that principles favoring decentralization in the balance of power between state and national governments survived the War). Even some Radical Republicans came to embrace the survival thesis. Carl Schurz's speech on May 19, 1870, 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, see Force Act of 1870, 16 Stat. 140) reveals the sentiment: I am for State-rights as the embodiment of true and general self-government, and I am convinced that this is the prevailing sentiment among the American people .... ... [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, not for the purpose of circumscribing its scope and functions within narrower limits. It has, indeed, overthrown what I call State wrongs; but it was not designed to abolish what I would call the legitimate sphere of State-rights. And I venture to say ... the party which would attempt to carry
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As both the opinions and commentary make clear, the Rehnquist Court is badly fractured on the original meaning of the Eleventh Amendment. 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. For our purposes though, 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, but in a decision of the Reconstruction Court endorsing an especially robust theory of state sovereign immunity. As Justice Souter wryly observed in his Seminole Tribe dissent, "we have two Eleventh Amendments, the one ratified in 1795, the other (so-called) invented by the Court nearly a century later in Hans v. 39 Louisiana."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. Carl Schurz, Address to Congress (May 19, 1870), in Radical Republicans, supra note 75, at 504, 507-08. 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. See Carl Schurz, Report (December, 1865), in Radical Republicans, supra note 75, at 288, 293-98. On evolving Republican views see Hyman & Wiecek, supra note 47, at 400. Democratic commitment to the survival thesis was even more deeply entrenched. See Brandwein, supra note 76, at 29 ("The only postwar matter that Northern Democrats were willing to see taken out of local majoritarian control was formal slave law. Otherwise, all matters regarding race, such as the choice to legislate differently for blacks and whites (e.g., the Black Codes), were regarded as local."); id. at 30-31, 36, 60 (describing Northern Democrats' faith in and political reliance on "a well-established federalism" to oppose Reconstruction); Foner, supra note 75, 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"); Gillette, supra note 75, at 363-64 ("[R]econstruction was weakened because of a constitutional tradition that was grounded in antebellum decentralization and local autonomy. Many American politiciansespecially, although not exclusively, the conservatives and moderates-frequently read the Constitution in the most restrictive sense."). On the Supreme Court's early and uncritical embrace of the survival thesis, see Brandwein, supra note 76, at 61-95; Stanley 1. Kutler, judicial Power and Reconstruction Politics 141, 165-66 (1968); cases discussed infra note 162. 138. See supra notes 114-119 and accompanying text. 139. Seminole Tribe v. Florida, 517 U.S. 44, 100 (1996) (Souter, J., dissenting) (attributing "two amendment" argument to Justice Stevens's concurring opinion in Pennsylvania v. Union Gas Co., 491 U.S. 1, 23-25 (1989) (Stevens, J., concurring)). For the revivalist's reliance on Hans to avoid the textual limits of the Eleventh Amendment, see Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 755 (2002) (holding that Eleventh Amendment, quite apart from limits of its text, incorporates "a presumption-first explicitly stated in Hans v. 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. Louisiana, 134 U.S. 1, 18 (1890) (alteration in original))), and Seminole Tribe, 517 U.S. at 64 (noting that Union Gas "essentially eviscerated our decision in Hans," and insisting that Court's other "decisions since Hans had been ... clear [that] the Eleventh Amendment reflects 'the
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In Hans, 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. 140 It is no accident that the case arises after the Civil War, when the trustworthiness of (southern) state courts enforcing federal law became suspect. Indeed, there was no general federal question jurisdiction in federal courts before 1875.141 Hans, a citizen of Louisiana, 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. As in other southern states, Louisiana's debt repudiation coincided with "Redemption," 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, 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. Hayes. Since any judgment against Louisiana would have been difficult to enforce without a federal military presence there, Souter suggests, "it is not wholly surprising that the Hans Court found a way to avoid the certainty of the State's contempt." 14 3 Indeed, 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. III"'); see also id. at 69-70. 140. Hans, 134 U.S. at 15-16; see also Richard H. Fallon, Jr. et al., Hart & Wechsler's The Federal Courts and the Federal System 1051 (4th ed. 1996) [hereinafter Fallon et al., Hart & Wechsler]. The history of the case is well known, so I repeat only the pertinent aspects borrowed from scholarly commentary by the Seminole Tribe dissent. 141. Fallon et al., Hart & Wechsler, supra note 140, at 349, 1048. The so-called "Midnight judges bill" of 1801 "did provide for federal jurisdiction in cases presenting federal questions, but this jurisdictional grant was repealed only a year later." Id. at 349 n.1. 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. See id. at 35-37; Hyman & Wiecek, supra note 47, at 363-85; Kutler, supra note 137, at vii, 88, 143. These were followed, finally, in 1875, by "an enduring grant of general federal question jurisdiction." Fallon et al., Hart & Wechsler, supra note 140, at 349. 142. Seminole Tribe, 517 U.S. at 120 (Souter,J., dissenting). On Redemption and the Compromise of 1877, see infra note 162; see also Gillette, supra note 75, at 302 (describing sectional reconciliation as "a peace settlement on southern terms"). But see id. at 56-57, 333-34, 357, 363, 380 (insisting that "retreat" from Reconstruction began in early 1870s as Congress and President struggled with measures to enforce just-ratified Amendments). 143. Seminole Tribe, 517 U.S. at 121 (Souter, J., dissenting); cf. id. at 121 n.16 (Souter, J., dissenting) (conceding that Redemption is not the only possible explanation for the holding in Hans).
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force compliance with constitutional mandates, both old and new. 144 And the strong view of dual sovereignty in Hans explains the opinion's central place in the federalism revival. 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.' 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, the survival of states' primordial right to sovereign immunity is assured by a double movement of constitutional interpretation. The revivalist majority both restates imagined "first principles" of federalism, 146 and reinscribes the collective memory of Reconstruction-era officials to explain why the Reconstruction Amendments did not alter the "constitutional blueprint."'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, it irretrievably obscures the significance of the Reconstruction Amendments. But the move persuades precisely because it makes it difficult to articulate just what has been lost or obscured. If the Reconstruction Congress and Court embraced the survival thesis, how can anyone assail the cramped view of the Reconstruction Amendments the survival thesis requires? Even Brown v. Board of Education, the Court's boldest effort to breathe life into Section 1 of the Fourteenth Amendment, balked at the task of challenging segregation on the terrain of constitutional history. 149
144. The Hans Court could hardly have been unaware that Redemption brought white supremacists into control of state courts, not just state legislatures and executive offices. 145. See supra note 93. 146. I say "imagined" because, as the dissenting opinions show, the content of these first principles and the historical context of their emergence is hotly contested. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 778-81 (2002) (debating implications of Founding); Alden v. Maine, 527 U.S. 706, 762-808, 814 (1999) (Souter, J., dissenting) (describing Court's view of state sovereign immunity as "true neither to history nor to the structure of the Constitution"); Seminole Tribe, 517 U.S. at 95-99 (Stevens, J., dissenting) (discussing history of sovereign immunity doctrine); id. at 158-59 (Souter, J., dissenting) (disputing majority's interpretation of historical evidence regarding sovereign immunity). 147. Fed. Mar. Comm'n, 535 U.S. at 751. 148. Robert Post, Theories of Constitutional Interpretation, 30 Representations 13, 18-23 (1990). 149. See 347 U.S. 483, 489, 492-93 (1954), which found that historical sources on "circumstances surrounding the adoption of Fourteenth Amendment . . . are inconclusive": We must instead look to the effect of segregation itself on public education .... [W]e cannot turn the clock back to 1868 when the Amendment was first adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in light of its full development and its present place in American life throughout the Nation.
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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, answers to this question cannot emerge. Imagined first principles will always overshadow the events surrounding Reconstruction. The impulse to build a reassuring narrative from those events will always suppress their more disturbing and more radical implications. And, in the long shadow of robust federalism, the Reconstruction Amendments may appear to mean even less than they say, may literally become mere monuments, frozen in time, receding into obscurity, perhaps even vanishing entirely from collective consciousness and constitutional law. As Robert Musil writes, "There is nothing in this
Id. Indeed, 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. Cf. Brandwein, supra note 76, at 96-184 (describing Warren Court's difficulties with history of Reconstruction Amendments). 150. Or, at least, never given by "authoritative" institutional actors. See David Donald, Lincoln Reconsidered 103-27 (1956) [hereinafter Donald, Lincoln Reconsidered] (describing views of Radical Republicans); Foner, supra note 75, at 251-61 (same). For the views of various contemporary radical figures, see, e.g., George B. Loring, The Present Crisis, Speech at Lyceum Hall, Salem, on the Assassination of Abraham Lincoln (Apr. 26, 1865), in Radical Republicans, supra note 75, at 231, 236-37; Wendell Phillips, We Ask of Congress, Address Before a Boston Audience (Dec. 4, 1869), in Radical Republicans, supra note 75, at 478, 481-84; George L. Prentiss, The Political Crisis, Am. Presbyterian & Theological Rev., Oct. 1866, reprinted in Radical Republicans, supra note 75, at 349, 353-58; Thaddeus Stevens, Address Before the U.S. House of Representatives (May 8, 1866), in Radical Republicans, supra note 75, at 318, 321-25; Charles Sumner, Address Before the U.S. Senate (Feb. 1869), in Radical Republicans, supra note 75, at 484, 487-91; see also Hyman & Wiecek, supra note 47, at 499-500 (describing book written in 1889 by black lawyers) ("By 1883 federal judges had chosen, in effect, to reamend the Reconstruction Amendments; to walk around the purposes of the framers of the Amendments and to pervert their effects. Justice and jurisprudence could not coexist for blacks so long asjurisprudents chose to favor states over citizens." (citing Brotherhood of Liberty, Justice and Jurisprudence: An Inquiry Concerning the Constitutional Limitations of the Thirteenth, Fourteenth, and Fifteenth Amendments (Negro Univ. Press 1969) (1889))); cf. Brandwein, supra note 76, at 42-60 (examining tensions in moderate Republican views prior to ratification of Fourteenth Amendment). Of course, the Court's late nineteenth- 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. See Lawrence Friedman, A History of American Law 358-60 (2d ed. 1985) (describing cases striking down state legislation on grounds that laws violated Due Process Clause of Fourteenth Amendment); Scheiber, Economic Order, supra note 121, at 100-18 (discussing centralization and expansion of federal power in post-Civil War years). But revivalists have largely forgotten this detour-especially its implications for the legitimacy of the survival thesis-and, in many ways, 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.
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world as invisible as a monument." '' Indeed, portions of the Amend152 ments are already approaching invisibility. To recover meaning the Reconstruction Amendments have never been given, we must begin by resisting the mode of historical consciousness on which the federalism revival depends. Hence the turn to countermemory.
IV. CONSTITUTION AS COUNTERMONUMENT
A. Marshall's Theory of ConstitutionalDemise: A Revealing Reversal? Justice Thurgood Marshall understood the need for this turn. His Reflections on the Bicentennial of the United States Constitution, offered in the midst of a year of national commemoration, self-consciously plays upon the symbolic and doctrinal significance of collective memory for constitutional interpretation in America. 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. A Commission has been established to coordinate the celebration. The official meetings, essay contests, and festivities have begun .... Like many anniversary celebrations, the
plan for 1987 takes particular events and holds them up as the source of all the very best that has followed. Patriotic feelings will surely swell, prompting proud proclamations of the wisdom, foresight, and sense of justice shared by the framers and re53 flected in a written document now yellowed with age.' Immediately though, he voices deep skepticism about the monumentalist
project-the "unfortunate .
.
. tendency for the celebration to oversim-
plify, and overlook the many other events that have been instrumental to our achievements as a nation." 154 And he refuses to join any "blind pil151. Robert Musil, Monuments, in Posthumous Papers of a Living Author 61, 61 (Peter Worstman trans., Eridanos Press 1987) (1957), quoted in Young, supra note 1, at 13. 152. On narrow construction of the Thirteenth Amendment, see infra text accompanying notes 232-237; see also City of Memphis v. Greene, 451 U.S. 100, 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"); Brook Thomas, Stigmas, Badges, and Brands: Discriminating Marks in Legal History, in History, Memory, and the Law 249, 255-59 (Austin Sarat & Thomas R. Kearns eds., 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"). On the erasure of the Privileges and Immunities Clause of the Fourteenth Amendment, see generally The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 74-81 (1873); Brandwein, supra note 76, at 61 & n.2; John Hart Ely, Democracy and Distrust 22-30, 196 (1980); Tribe, supra note 54, at 548-59. On the Citizenship Clause, see generally Kenneth L. Karst, The Supreme Court, 1976 Term-Forward: Equal Citizenship under the Fourteenth Amendment, 91 Harv. L. Rev. 1 (1977). On the perverse effects of the intent requirement for establishing a denial of equal protection, set forth in Washington v. Davis, 426 U.S. 229, 245-48 (1976), see Tribe, supra note 54, at 1502-14. 153. Marshall, supra note 53, at 1. 154. Id.
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grimage to the shrine of the original document" for a government that was "defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today."'15 5 The Framers, he flatly insists, were morally compromised by their concessions to slavery in Philadelphia-by "the contradiction between guaranteeing liberty and justice to all, and denying both to Negroes."' 156 And their moral compromises, he reasons, directly undermined the moral and legal authority of the document they crafted. This is the context behind Marshall's seemingly radical assertion that 157 "[w]hile the Union survived the civil war, the Constitution did not." "[W]e must be careful," he admonished, "when focusing on the events which took place in Philadelphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense 1 58 of perspective." Marshall's speech is a call to countermemory-a call to resist, in the very act of commemoration, the monumentalist impulse either to forget or diminish the profound moral and constitutional failings of the Founding. But the call in his brief speech ends just where our inquiry must begin. What does it mean, doctrinally, to say that the Constitution did not survive the Civil War? The question, in some sense, merely restates the problem of remembering an absence, of recovering a meaning authoritative interpreters have never given to the War and the Amendments that followed. But the restatement is pregnant. Marshall's assertion of constitutional demise is a reproduction in (more or less) precisely duplicated
155. Id. at 2, 5. 156. Id. at 4. On the concessions to slavery, 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, in exchange for the right to continue the slave trade. 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. The perpetuation of slavery ensured the primary source of wealth in the Southern states. Id. at 2. 157. Id. at 4. The claim, for Marshall, was not hyperbole. He immediately added: In its place arose a new, more promising basis for justice and equality, the fourteenth amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws. 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, housing, and employment, and to have their votes counted, and counted equally. Id. (emphasis added). 158. Id. at 5.
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negative space of the survival thesis-a categorical rejection not simply of slavery and secession, 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. The Reconstruction Amendments, on this register, stand as countermonuments to a failed national project-a failure of constitutional democracy we can never disown. Read this way, the Amendments signify far more than their bare terms suggest. They are structurally significant, marking a new constitutional framework, a radical break with certain first principles of the Founding (among them, surely, robust federalism). Marshall's statement is, in short, a provocative and revealing "reversal" not at all unlike Hoheisel's negative form monument-an invitation to remember something we have always already forgotten, something always already exposed 15 9 to the cathectic predations of collective memory. Can we accept the invitation? We must, I believe, but if an affirmative response is to persuade, it must first confront and resolve the problem of authority in Marshall's theory of constitutional demise. Staunch Democrats, blacks, and Radical Republicans may have believed the Constitution of 1787, as they knew it, expired with secession, Lincoln's exertions of national power for the War effort, emancipation, or federal interventions during Reconstruction. 16 1 But those who held the center did not.' 1 On what grounds may we challenge the privileged mnemonic status of the Reconstruction Court and other centrist institutional actors?
159. See Sigmund Freud, The Interpretation of Dreams 363 (James Strachey trans. & ed., 1965) (1900) ("[l]f a dream obstinately declines to reveal its meaning, it is always worth while to see the effect of reversing some particular elements in its manifest content, after which the whole situation often becomes immediately clear." (emphasis added)). 160. On Radical Republicans, see Foner, supra note 75, at 24-25, 228-39; Radical Republicans, supra note 75, passim. On the views of blacks, see Foner, supra note 75, at 26-27 (describing emancipation as a "revolution"); id. at 110-19 (describing emerging black political consciousness after emancipation and Appomattox); cf. Frederick Douglass, My Bondage and My Freedom (1855), reprinted in Autobiographies 103, 391-92 (Henry Louis Gates, Jr. ed., 1994) (noting his prewar break with William Lloyd Garrison and his realization that the Constitution is "in its letter and spirit, an anti-slavery instrument"). Remarks by Representative Samuel J. 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. I am against anybody who seeks to overthrow the Government or the Constitution; and while I was in favor of putting down the rebellion when it emanated from the South, I am now today in favor of preventing the success and for putting down that party which seeks to change, to annul and to destroy the Constitution and to centralize this Government, and thereby to take away from the people the privileges which that Constitution formed by our forefathers gave to them .... Brandwein, supra note 76, at 33 (quoting Cong. Globe, 39th Cong., 1st Sess. 2408 (1866) (statement of Samuel J. Randall)). 161. See Brandwein, supra note 76, at 5 ("It is crucial to understand that Moderate Republicans saw their reforms, including application of the Bill of Rights to the states, as a
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There is moral authority in Marshall's theory, in his critique of the Framers' compromise and the clear moral failure of the centrists' eventual concessions to the "Redeemers."' 62 Is this enough to set aside the
narrow grant of federal power consistent with traditional limitations of federal power."); Foner, supra note 75, at 241-43, 259, 453-54 (noting that Moderate Republicans "accepted the enhancement of national power resulting from the Civil War, but did not believe the legitimate rights of the states had been destroyed, or the traditional principles of federalism eradicated"); Hyman, More Perfect Union, supra note 137, at 298-99 ("In constitutional terms the Republican centrists who became the architects of Reconstruction were constrained conformists. They were deeply committed to returning the nation and all states as quickly and thoroughly as possible to prewar arrangements, secession and slavery always excepted."); Benedict, Preserving, supra note 137, passim (discussing constitutional conservatism of Republicans during Reconstruction). 162. On the moral failure of Redemption, see Brandwein, supra note 76, at 88 ("Socalled redeemers and Southern legislatures were determined to accomplish legally what they had been working toward by fraud, violence, and intimidation: the effective exclusion of black citizens from public life."); Foner, supra note 75, at 499, 564-601. Foner observes: Ironically . . . even as racism waned as an explicit component of the Northern Democratic appeal, it gained a hold on respectable Republican opinion, offering a convenient explanation for Reconstruction's "failure." ... [B]y the mid-1870s, with "reform" now suggesting rule by the "best men" rather than the desire to purge American life of racial inequality, survivors of the Radical generation seemed relics of a bygone era .... Many antislavery veterans, indeed, shared in the mood of national reconciliation. Id. at 527. Foner adds that as a result of Redemption: "The whole South-every state in the South," lamented black Louisianan Henry Adams, "had got into the hands of the very men that held us as slaves."... [T]he "withdrawal" of troops marked a major turning point in national policy. "The long controversy over the black man," announced the Chicago Tribune, "seems to have reached a finality." "The negro," echoed The Nation, "will disappear from the field of national politics. Henceforth, the nation, as a nation, will have nothing more to do with him." ... 1877 marked a decisive retreat from the idea, born during the Civil War, of a powerful national state protecting the fundamental rights of American citizens. Id. at 582 (citations omitted); see also Hyman & Wiecek, supra note 47, at 509 ("Clearly, by the 1880s, 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 . . . . That sense lost, the Negro, its initial and primary beneficiary, became all but invisible."); C. Vann Woodward, The Strange Career of Jim Crow 69-71 (3d ed. 1974) (arguing that Compromise of 1877 reconciled northern and southern whites through mutual political abandonment of blacks). See generally Gillette, supra note 75 (tracing abandonment of Reconstruction as national policy). For the Court's endorsement of Redemption and home rule see Giles v. Harris, 189 U.S. 475, 486-88 (1903) (denying constitutional challenge to Alabama's voting restrictions); Plessy v. Ferguson, 163 U.S. 537, 548 (1896) ("[T]he enforced separation of the races, as applied to the internal commerce of the State, neither abridges the privileges or immunities of the colored man . . . nor denies him the equal protection of the laws ); The Civil Rights Cases, 109 U.S. 3, 25 (1883) (stating that "there must be some stage ..... in the progress of [a former slave's] elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws"); Gillette, supra note 75, at 298-99, 417 n.39 (describing Giles as 'judicial emasculation" of Fifteenth Amendment); C. Vann Woodward, Origins of the New South, 1877-1913, at 216 (1971) (arguing that the Civil Rights Cases amounted to a 'juristic fulfillment of the Compromise of 1877"); C. Vann Woodward, Reunion and Reaction: The Compromise of 1877 and the End of
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centrists' intentions and the cases purporting to give expression to them? Marshall, at least, 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, as Robert Post puts it, "our common commitment to the flourishing of the mutual enterprise of nationhood."' 63 Oliver Wendell Holmes provided "the classic statement" of what Post calls "responsive interpretation" in Missouri v. Holland: When we are dealing with words that are also a constituent act, like the Constitution of the United States, 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.... [I] t has taken a century and has cost their successors much sweat and blood to prove that they created a nation. 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. 1 Even if this statement is something short of Marshall's theory of constitutional demise, it is not terribly short of it, and, of course, Holmes knew of what he spoke in the way of sweat and blood to make a nation from a confederation of states. 165 He was also speaking for the Court in Holland; far from a commemorative speech, 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. "Responsive interpretation" is therefore not entirely withoutjuridical authority. But to avoid the "counter-majoritarian difficulty"' 166 and the charge of radical indeterminacy, 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. [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"). 163. Post, supra note 148, at 24. 164. Id. at 23 (quoting Missouri v. Holland, 252 U.S. 416, 433 (1920) (Holmes, J.)). 165. G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self 49-86 (1993) (describing Holmes's military service in Civil War). 166. Post, supra note 148, at 25 (noting that responsive interpretation "contains within it no particularly persuasive response to the counter-majoritarian difficulty"). Post adds: By refusing to interpret the Constitution as if it were a source of external compulsion, either of past precedent or of past consent, responsive interpretation always places a court in . . . an exposed position, purporting to speak for the fundamental ethos of the contemporary community, butjustified in the end only by the wisdom of its own insight. . . . Thus the enterprise of responsive interpretation can become the locus of an overt struggle for the definition of national identity. Id. at 30.
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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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overdetermined. My purpose, the purpose of countermemory, is thus considerably more humble. 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, at the same time, succumbing to radical indeterminacy. Indeed, 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, I hope to show that, whatever else follows doctrinally from this memory work, the double move of the Rehnquist Court's federalism revival is perniciously complacent, if not also constitutionally suspect. Marshall's provocative reversal is not a dead end of constitutional theory; taken seriously, it may help avoid the generic liabilities of such theory in interpreting the paradoxes of Reconstruction. In a diary confession, Sidney George Fisher, Philadelphia lawyer and staunch defender of Lincoln's constitutional creativity during the War, 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 ....No sooner have we abolished slavery than a party ...growing in power, proposes Negro suffrage, so that the problem-What shall we do with the Negro?-seems to be as far from being set174 tled as ever. As Hyman and Wiecek observe, Fisher's comment reflects the sentiments of "many northerners" (and doubtless many southern whites), who wanted constitutional creativity to end with the War even if that meant leaving the fate of blacks to their former masters. The war over; [sic] Fisher was swiftly losing interest in Negro questions. He disliked the continuing employment of war powers in the South once the fighting ended, primarily because they were novel and rasping. The war had been waged to preserve the Union of states. However repugnant as diminutions of civil rights, the Black Codes did express state self-determination on internal affairs. . . . Unusual circumstances were necessary before Fisher was prepared to sustain national limitations on 75 state power, especially over extended periods of time.1
McPherson, Abraham Lincoln and the Second American Revolution (1990); Phillip Shaw Paludan, "A People's Contest": The Union and Civil War, 1861-1865 (1988). 173. Williams, supra note 172, at 469; see also Weisberger, supra note 172, at 447 (commenting on "frustrating complexity" of Reconstruction period). 174. As quoted in Hyman & Wiecek, supra note 47, at 331. 175. Id.; see supra note 162 (documenting concatenation of racism, federalism and desire for sectional reconciliation behind Redemption); see also Brandwein, supra note 76, at 27-60 (detailing nexus between postwar views on race, federalism and Northern Democratic opposition to Reconstruction); Fairman, supra note 127, at 254 n.5; Gillette, supra note 75, at 371 (describing moderate Republicans' "ever-present constitutional conservatism and racial ambivalence"); id. at 258 (concluding that "increasing opposition
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Respect for state sovereignty (and the twin theory that the War was fundamentally about preserving the Union) thus became a powerful, publicly acceptable, 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. Many, of course, and Democrats especially, openly expressed disdain for blacks and impugned their capacity for, or right to, equal citizenship.1 76 But for the centrists and wilting radicals, the moral and egalitarian principles behind abolition were real (politically, if not personally), and the survival thesis became a convenient way to resist the consequences of those principles 77 without appearing to disown them. "[O]ur great national trauma," Arthur Schlesinger insists, "released deep sentiments of guilt and remorse. '1 78 The nation's desire for closure and fraternal reconciliation in the face of that trauma was correspondingly profound, so profound that centrists like Lincoln were willing, before even the first shot at Fort Sumter, 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"); id. at 160, 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, and that the Negroes should be left to shift for themselves"); id. at 287, 334, 370 (describing growing desire to achieve closure by simply conceding local control in the South). Racism and federalism, to be sure, were not the only forces behind the desire for closure. Political corruption, as exemplified by the Credit Mobilier scandal, systematic southern and Democratic resistance to Reconstruction measures, an intractable economic depression, northern misinformation and denial about violence against blacks in the South, factionalism between both radical and moderate and northern and southern segments of the Republican party, and naivety about the relationship between legal change and social reform, see Brandwein, supra note 76, at 57, 83 n.74, 84; Gillette, supra note 75, at 171, 186, 154-55, 228-29, 364, 370-71, all reinforced fatigue with the "Negro question" and consensus on the importance of respecting states' rights. 176. As Eric Foner reports: The potent cry of white supremacy provided the final ideological glue in the Democratic coalition. Sometimes the appeal to race was oblique .... The Union as It Is, the Constitution as It Was," had as its unstated corollary, blacks as they were-that is, as slaves. Often, it was remarkably direct. "Slavery is dead," the Cincinnati Enquirer announced at the end of the war, "the negro is not, there is the misfortune." Foner, supra note 75, at 31-32; see also Brandwein, supra note 76, at 27, 38-41; Fairman, supra note 127, at 402, 430, 545; Foner, supra note 75, at 339-40, 441-42, 547-53; Gillette, supra note 75, at 191-96, 214-15, 367-69, 377 (arguing that, ultimately, southern Democrats' white supremacist propaganda campaign "was more effective and more durable than the northern Republicans' bloody shirt"). 177. Paradoxically then, the very constitutional principle that shielded slavery and brought the nation to war became an expedient ground for negating its results. See Scheiber, Redesigning, supra note 121, at 233-34 ("[T]he inescapable conclusion is that federalism protected slavery for the first seven decades of the nation's history. Then, for nearly another century, it served as a reliable fortress for the perpetuation of systematic racial segregation and discrimination."). 178. Schlesinger, supra note 171, at 969; see generally Meister, supra note 47, at 138-42.
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Negro question" if doing so would bring the southern states back into the Union; 179)so profound that even with the defeat of the rebels at Appomattox, "[v]ery few congressmen saw anything amiss with the constitutional world in which rebel states were as unrestricted as ever, except for 18 secession and slaveowning"; so profound, by the spring and summer of 1867, 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. See Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in The Life and Writings of Abraham Lincoln 646, 647-49 (Philip Van Doren Stern ed., 1940) [hereinafter Stern] (promising to support states' rights and endorsing proslavery Amendment); infra text accompanying note 246 (discussing Lincoln's support for proslavery Amendment). But see Letter from Abraham Lincoln to Elihu B. Washburne (Dec. 13, 1860), reprinted in The Civil War Archive: The History of the Civil War in Documents 44, 44-45 (Henry Steele Commager ed., 2000) [hereinafter Commager] (encouraging Congressman Washburne to "hold firm, as with a chain of steel" against any expansion of slavery); Letter friom Abraham Lincoln to William H. Seward (Feb. 1, 1861), reprinted in Commager, supra, at 45, 45 (refusing to compromise on expansion of slavery to territories). Even after hostilities broke out, Republicans remained anxious to allay southern concerns that the North saw the conflict as a war for emancipation rather than mere re-union. See Harold M. Hyman, Introduction to George B. Cheever, The Slaves Are Free by Virtue of the Rebellion and the Government Is Bound to Protect Them, Indep.,Jan. 16, 1862, reprinted in Radical Republicans, supra note 75, at 25, 27 (describing July 1861 "Crittendon Resolution" passed by Congress to make clear that "the aim of the war was reunion, not a reconstruction of race relations"); cf. Donald, Lincoln Reconsidered, supra note 150, at 137-38 (describing Lincoln's shift from support for the Crittendon Resolution to emancipation). 180. Hyman, More Perfect Union, supra note 137, at 301. Hyman elaborates: It is the core of the Civil War's impact, constitutionally considered, that in early 1865 virtually unhampered state powers were considered fundamental for liberty, federalism, and democracy. Almost no one foresaw in politically practical terms need for amendments beyond the Thirteenth, much less for two more within five years . . . to sustain individuals' political and civil rights. Victorious Americans understood their constitutional arrangements to be so strong, so vigorous, so worthwhile because they had sufficed to win the War, as to require no further alterations.... No need, no right, no way existed for the nation to be involved in crises as it was forced to be in 1860-61. Id.; see also Brandwein, supra note 76, at 30, 34 (describing arguments equating formal abolition of slavery with eradication of all of slavery's negative consequences); Fairman, supra note 127, at 294 n.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, and an end put to the confused and perplexing state of things in which our national affairs are involved"); id. at 128 (President Johnson's view, in vetoing 1866 Civil Rights Act, was that "the Thirteenth Amendment was enough, and it had executed itself. No more than in the past should the citizen have federal rights against his State."); id. at 182, 498 (reporting Johnson's belief that southern states should be admitted 'just as they are," without any delay or further constitutional changes); Harold M. Hyman, Jatrodaction to Andrew Johnson, Reconstruction Proclamation (May 29, 1865), reprinted in Radical Republicans, supra note 75, at 246, 248; Harold M. Hyman, Introduction to William Grosvenor, The Rights of the Nation, and the Duty of Congress, New Englander, Oct. 1865, reprinted in Radical Republicans, supra note 75, at 260, 261.
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lican majority";' so profound as to have produced among Chief Justice Chase and his associates, and doubtless many others, affirmative "relief... when the strain of Reconstruction was at an end"; 182 so profound, finally,
181. Hyman & Wiecek, supra note 47, at 439 ("Their sense of the necessary pace in Reconstruction quickened because they felt it essential to end unforeseen strains in administration, politics, and society that had appeared since Appomattox; a period when the nation ... survived one anxious passage only to confront another." (internal citation and quotation omitted)); see also Harold M. Hyman, Introduction to E. L. Godkin, Editorial, True Radicalism, The Nation, July 18, 1867, reprinted in Radical Republicans, supra note 75, at 447, 448 (hereinafter Hyman, Introduction to Godkin] ("Influential Republicans became devotees of clean-i.e., cheap, rational, efficient-government as a primary goal, transcending civil liberties."); Harold M. Hyman, Introduction to Wendell Phillips, The Policy, The Radical, Apr. 1866, reprinted in Radical Republicans, supra note 75, at 327, 327 ("Probably most Republican rank and filers considered the Fourteenth Amendment as the final necessary step in Reconstruction. Depiction of the amendment as the Constitution's Appomattox was common ...... "); George W. Julian, Political Recollections, reprinted in Radical Republicans, supra note 75, at 376, 378 (commenting with respect to Congress's 1867 Reconstruction Act, which conditioned rebel states' readmission on ratification of the Fourteenth Amendment, 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"). In a July 1867 editorial for The Nation, "a heavyweight Republican periodical," Hyman, Introduction to Godkin, supra, at 450, E. L. Godkin argued that with the rebel states restored, even radicals should move on to other issues: Slavery, and the evils growing out of it, have absorbed the attention of this country for some years past, and so gigantic an abomination could never have been overthrown without an intense concentration of the public mind upon the work .... But who cannot see that there are many other great questions which have been lying in abeyance during this great struggle, and which will give ample scope to the powers of the most radical reformer? E. L. Godkin, Editorial, The Nation, July 18, 1867, reprinted in Radical Republicans, supra note 75, at 447, 451. More conservative Americans had been prepared to move on with the passage of the first Civil Rights Act in 1866. See Harold M. Hyman, Introduction to Thaddeus Stevens, Address Before the U.S. House of Representatives (May 8, 1866), in Radical Republicans, supra note 75, at 318, 318. 182. Hyman & Wiecek, supra note 47, at 508 (citation omitted). On others' expressed desire for closure, see Gillette, supra note 75, at 180 ("As early as 1871, the moderate Republican New York Times . . . noted that the 'mere mention of [Reconstruction] is almost nauseating."'); Harold M. Hyman, Introduction to William Lloyd Garrison, Thirty-Five Years of Anti-Slavery Agitation Fittingly Rounded Out, Speech (Apr. 9, 1870), in Radical Republicans, supra note 75, at 492, 492 ("Despite the pleas of some in attendance at the April 1870 session of the American Anti-Slavery Society, that the organization remain in being in order to combat race prejudice and especially to keep sentry watch over the condition of Southern Negroes, the membership chose overwhelmingly to dissolve."); Wendell Phillips, The Fulfillment of Our Pledge, Speech (Apr. 9, 1870), in Radical Republicans, supra note 75, at 495, 497 (arguing ratification of Fifteenth Amendment meant "the anti-slavery movement may fairly leave its client to the broad influences of civilization and society"); see also Gillette, supra note 75, at 346 (describing northern Republicans' "enthusiastic relief" and "fatalistic acceptance" that Compromise of 1877 would bring end to federal military interventions in South). Desire for closure was not unchecked-emancipation, the Thirteenth Amendment, Military Reconstruction followed by ratification of the Fourteenth and Fifteenth Amendments, and concomitant enforcing legislation all testify to the presence of countervailing forces. Indeed, according to William Gillette, "the most powerful political
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that, for decades following Reconstruction, "operatic," wildly polemical scholarly and popular "histories" of southern oppression at the hands of s3 radical, corrupt congressional Republicans prevailed.' If this corrupt desire for closure indeed lies behind the survival thesis, then it is not unfair to conclude, having begun to emerge more than a century later from the atrocities of segregation and racial oppression invited by the Compromise of 1877, that the federalism revival is chillingly amnesic. But, in saying this, 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. 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. As Fredrick Douglass, writing for the Atlantic Monthly in 1866, tried to remind the nation: While there remains such an idea as the right of each State to control its local affairs-an idea, by the way, 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.1 C. 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. But it is not all. 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. In what follows, I examine three events with special relevance to the survival thesis: (1) the fact of secession, with its deep roots in robust antebellum federalism principles, (2) the fact of federal coercion in the ratification of all three Reconstruction Amendments by southern states, and (3) the originalThirteenth Amendment, which would have avoided
force in the postwar decade throughout the North continued to be war-born hatred of rebellion and rebels ....The widespread conviction in the North was tacit but clear and compelling: the South deserved to be punished and needed to be reformed .... Gillette, supra note 75, at 3. Onl the durability of Radical Republican sentiment, see David Donald, Charles Sumner and the Rights of Man passim (1970); Hans L. Trefousse, Thaddeus Stevens: Nineteenth Century Egalitarian 150-209 (1997); Radical Republicans, supra note 75, passim. Still, the impulse to identify each legal reform with the successful completion of Reconstruction was insatiable. See, e.g., Gillette, supra note 75, at 365-66 ("After each constitutional amendment had been ratified and every major federal statute had become law, the president, the politicians, the press, and the people proclaimed the imminent completion of reconstruction as a whole .... "). 183. See Weisberger, supra note 172, at 428. On the War and Reconstruction in popular imagination, see generally Bruce Chadwick, The Reel Civil War: Mythmaking in American Film (2001) (discussing Birth of a Nation (Mutual Pictures 1915), Gone with the Wind (Metro-Goldwyn Mayer 1939), and other tendentious Civil War films). 184. Frederick Douglass, Reconstruction, Atlantic Monthly, Dec. 1866, at 201, reprinted in Hyman & Wiecek, supra note 47, at 426, 426.
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war by canonizing robust federalism and guaranteeing the right to slavery. For federalism revivalists, 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. From the perspective of countermemory, however, what is typically ignored in these events, what revivalists want to forget about them, provides a context in which the Reconstruction Amendments can take meaningful doctrinal shape as countermonuments. 1. The Fact of Secession. - As soon as Lincoln was elected president in 1860, the South Carolina legislature called a convention to meet on the question of secession and, within weeks, the convention unanimously adopted an Ordinance of Secession supported by a Declaration of Causes.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." 18 6 The Declaration of Causes emphasized impermissible federal and sectional incursions on state sovereignty-the federal government's "frequent violations of the Constitution ... and its encroachments upon the reserved rights of the States." 18 7 Non-slaveholding states, it continued, "have assumed the right of deciding upon the propriety of our domestic institutions.., denounced as sinful the institution of Slavery ... [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." 188 Claiming the authority of Taney's decision in Dred Scott, the Declaration added: [T] he subversion of the Constitution has been aided, in some of the States, by elevating to citizenship persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its peace and safety. 18 9 By March 1861, when Lincoln addressed the nation on the steps of the unfinished capitol building in his First Inaugural Address, the Confederacy was a going concern. 190 Six other states (Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas) had joined South Carolina in secession and had met together in convention to form a separate nation. ' 9 The result of the convention was the Constitution of the Confed185. On the history and theory of secession, see Hyman & Wiecek, supra note 47, at 207-31. 186. South Carolina Ordinance of Secession (Dec. 20, 1860), reprinted in Commager, supra note 179, at 42, 42. 187. South Carolina Declaration of Causes of Secession (Dec. 24, 1860), reprinted in Commager, supra note 179, at 42, 42. 188. Id. at 43. 189. Id. 190. Hyman & Wiecek, supra note 47, at 214. 191. Id.
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erate States of America and the appointment of Jefferson Davis as "president of the new federated republic.' ' 2 With the outbreak of war, Virginia, North Carolina, Tennessee, and Arkansas all joined the Confed3 eracy, making a total of eleven states in the nascent regime."' 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), while simultaneously emphasizing the sanctity of states' rights. After solemnly reaffirming the resolution in the Republican platform on the "maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its judgment exclusively," Lincoln insisted in his First Inaugural Address that "in legal contemplation, the Union is perpetual[,] . .. much older than the Constitution," and therefore "no State upon its own mere motion can lawfully get out of the Union." 9 4 "[R]esolves and ordinances to that effect are legally void," he continued, and "acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, ac95 cording to circumstances." However expedient these pronouncements were (Lincoln undoubtedly hoped to avert war, and failing that, to coax the rebels back into the fold),' 9 1 the argument worked against facts on the ground, ignored "a
192. Id.
193. See id. at 215 (reporting that "rump segment" of Missouri legislature and convention of Kentucky soldiers also declared their states' secession). 194. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in Stern, supra note 179, at 646, 650 [hereinafter Lincoln, First Inaugural Address). 195. Id. 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, after hostilities had begun. 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, if conceded, was followed by perfectly logical steps . . . to the complete destruction of the Union." Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), reprinted in Stern, supra note 179, at 665, 669. States, he conceded, "have the powers and rights reserved to them in and by the National Constitution," id. at 671, 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"; but the word even is not in the National Constitution, nor, as is believed, in any of the State constitutions. ... The States have their status in the Union, and they have no other legal status. If they break from this, they can do so only against law and by revolution. The Union, and not themselves separately, procured their independence and their liberty. Id. at 670-71. See generally Daniel Farber, Lincoln's Constitution (2003) (detailing roots of secession crisis and Lincoln's response). 196. On Lincoln's motives, see 2 Allan Nevins, The Emergence of Lincoln: Prologue to Civil War, 1859-1861, at 355-57, 394-97, 455-60 (1950); David Potter, The Impending Crisis, 1848-1861, at 555-70 (1976). On his pragmatic approach to politics, see Donald, Lincoln Reconsidered, supra note 150, at 128-43.
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rich and venerable treasury of constitutional theory," 9 7 and created a terrible paradox for Reconstruction. In terms of facts on the ground, the argument that secession was a nullity had to dismiss the legitimacy of the southern state conventions, called not by insurrectionary forces but by officers of existing governments as an expression of both popular sentiment and state sovereignty. 1 98 And Lincoln's bromides about the sanctity of states' rights were, of course, belied by the national war effort itself. In terms of constitutional theory, even if naked "disunionism . . . lacked constitutional justification," the same could not be said for secession considered as an implied right of state sovereignty. 199 "As an indispensable element of federalism," Hyman and Wiecek note, "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. '20 0 Before Calhoun and the Carolinian "fire-eaters" liam Lowndes Yancey, Edmund Ruffin, and Robert Barnwell Rhett-all partisans we might be inclined to dismiss as fanatics), there was an "impressive intellectual tradition" expounding the "derivative character of the federal government" and ultimately leading back to Madison and Jefferson. 20 2 Indeed, if we resist the temptations of the monumentalist mode, we can recognize the "plausibility [of secession] within our particular political system." 20 3 It is not impossible, Sanford Levinson insists,
197. Hyman & Wiecek, supra note 47, at 211. But see Farber, supra note 195, at 70-114 (concluding that while not frivolous, antebellum moral and constitutional arguments for secession are ultimately unconvincing). 198. "Originated in the Revolutionary era as a formal convocation of the people's representatives to perform some solemn act, like drafting or ratifying a constitution, the convention had become a vehicle that translated the theory of popular sovereignty into an actual mechanism of government." Hyman & Wiecek, supra note 47, at 213. In the secession movement, conventions played both roles-legitimating the Confederacy through expression of popular will and producing formal documents reflecting that will. Cf. Farber, supra note 195, at 112 n.42 (citing evidence that southern support for secession was not unanimous and that potential opposition was suppressed). 199. Hyman & Wiecek, supra note 47, at 211. 200. Id. 201. See generally Avery 0. Craven, Edmund Ruffin, Southerner: A Study in Secession (1932). 202. Hyman & Wiecek, supra note 47, at 211-12. In the late 1790s, 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. See Farber, supra note 195, at 46-50 (discussing Jefferson's draft of Kentucky Resolutions and Madison's draft of Virginia Resolutions); see also Union and Liberty: The Political Philosophy of John C. Calhoun passim (Ross M. Lence ed., 1992) [hereinafter Lence] (compiling Calhoun's major theoretical writings and political expressions on states' rights and doctrine of nullification/interposition, which built on early ideas of Madison and Jefferson). 203. Levinson, Monuments, supra note 75, at 59. Although he disagrees with Levinson's conclusion, Daniel Farber notes that secession is "in some respects" less radical as a matter of constitutional law than the doctrine of nullification. See Farber, supra note 195, 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
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to interpret the Constitution as allowing secession even within the United States, at least if carried out with full popular deliberation and consent of those doing the seceding. Like Confederate Vice-President Alexander Stephens, 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. My point here is not Alexander Stephens's (that Lincoln should have accepted the fact of secession), 25 but rather that if we take the fact of secession seriously now, instead of burying it under "union mysticism" and the reassuring sign of "constitutional nullity," the defeat of the South was not just a sectional defeat or a rejection of secession as an isolated political right; it was also a defeat for the robust antebellum federalism principles from which secession derived. The Reconstruction Amendments are, in short, written against the principle of dual sovereignty. A weaker form of federalism surely survived the War, 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. The notion that dual sovereignty (in the strong sense) is dead immediately provokes resistance, but only because, in the midst of Reconstruction, the Supreme Court added the imprimatur of juridical authority to Lincoln's politically expedient utterances. Seeking to undo a "swindle" in which the rebel government of Texas sold bonds issued to it before the War by the federal government, Texas's Reconstruction government brought an original action in the United States Supreme Court in 1867 to recover bonds from certain purchasers. 206 The bondholders objected that the Court lacked jurisdiction because Texas was not then a State in the Union with standing to sue. 2 7 The argument was not without merit. By the Reconstruction Act of 1867, Congress had declared President Johnson's provisional governments in the defeated rebel states illegal, re-
in the Union," 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"). 204. See Levinson, Monuments, supra note 75, at 59. 205. 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." Id. at 60. 206. Fairman, supra note 127, at 632-35. The case is Texas v. White, 74 U.S. (7 Wall.) 700 (1868). 207. The defendants' answer claimed: [T]he State, having severed her relations with a majority of the States of the Union, and having by her ordinance of secession attempted to throw off her allegiance to the Constitution and government of the United States, has so far changed her status as to be disabled from prosecuting suits in the National courts. White, 74 U.S. at 719; see also Fairman, supra note 127, at 636.
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moved them from power, and reverted southern states "to the military
authority of the United States.
Purporting to avoid any inquiry "into the constitutionality of this legislation so far as it relates to military authority, or to the paramount authority of Congress," the Court nevertheless held that, for purposes of Article III jurisdiction, Texas was enough of a state to sue. 2 0 9 Indeed, the Court went further, declaring that Texas had never lost its status as a state: "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not? ... The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation .... Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null.... It certainly follows that the State did not cease to be a State, nor 0 21 her citizens to be citizens of the Union. Lincoln could not have said it better. 2 11 But coming in the teeth ofJohnson's impeachment and heated debate about the constitutionality of Con208. Fairman, supra note 127, at 619. Johnson's provisional governments were established by proclamations and executive orders beginning in May 1865. First, in Arkansas, Louisiana, Tennessee, and Virginia, he formally recognized state governments established by Lincoln. See Hyman & Wiecek, supra note 47, at 303-04. He then granted "amnesty to the great mass of ex-Confederates who would swear future loyalty to the Union," offered executive pardons by petition to "prominent rebels" excluded from the amnesty, and, "aiming, it appears, to have the states reconstructed before the Thirty-ninth Congress . . . would convene in December," established a model for the restoration of other southern states. Id. at 304. According to the model, first applied in North Carolina, provisional governors were appointed to initiate and supervise state elections for delegates to mandatory constitutional conventions, "which were to renounce slavery. Then, by terms of the new constitutions, the provisional governors set elections in motion for slates of officials .. " Id. As Hyman and Wiecek observe, "Every one of the elected and appointed officials and voters was white . . . [and a] substantial proportion were ex-rebels .... Pardon-brokering became a new Washington growth industry." Id. Not surprisingly, the new legislatures almost immediately set to work drafting regressive "Black Codes," 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. Id. at 313-23. 209. White, 74 U.S. at 731-32. 210. Id. at 725-26 (emphasis added). 211. In his last public address, Lincoln referred to the question of the southern states' status upon defeat as "a merely pernicious abstraction." Abraham Lincoln, Last Public Address (Apr. 11, 1865), in Stern, supra note 179, at 846, 849 [hereinafter Lincoln, Last Public Address]. He then gestured in the direction of collectively forgetting the fact of secession: We all agree that the seceded States, so called, are out of their proper practical relation with the Union, and that the sole object of the government, civil and
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gressional Reconstruction (or, as the defendants' opposition brief put it, "a military despotism in Texas"), 21 2 the Court's famous doctrine of indestructibility required particularly selective memory work. 21 - The Union surely survived with victory at Appomattox, but to declare that the southern states did too, and to create an inexorable parallelism between the indestructibility of the Union and "indestructible States," was to turn Lincoln's wartime rhetoric of expedience into a stunningly amnesic endorsement of the survival thesis. 2 1 4 As Justice Grier lamented in dissent, the doctrine was a "legal fiction" predicated on forgetting "the truth of his21 5 tory for the last eight years." 2. Ratification by Force. - However significant its contribution to sectional reconciliation, 21 6 the fiction of Texas v. White posed a basic paramilitary, in regard to those States, is to again get them into that proper practical relation. I believe that it is not only possible, but in fact easier, to do this without deciding or even considering whether these States have ever been out of the Union, than with it. Finding themselves safely at home, it would be utterly immaterial whether they had ever been abroad. Id. President Johnson would later appropriate Lincoln's view in his messages vetoing Reconstruction measures beyond the Thirteenth Amendment as unconstitutional encroachments on states' rights. See, e.g., Fairman, supra note 127, at 308 ("'No fallacy could be more transparent' than that Congress derived new powers" as a result of the War. "The rebellion had been simply one more insurrection: true, there had been ordinances of secession-but these were 'mere nullities.' . . . Let Congress simply admit all States to representation: that would 'send a thrill of joy throughout the land .... ".(quoting Johnson's veto message on the Civil Rights Bill of 1866)). 212. Fairman, supra note 127, at 637. 213. The Court surely felt the heat. Fairman reports that the Court delayed argument on the case: "There was a serious question to be examined-calmly, after the excited talk at the two ends of the capitol had died away." Id. at 636. 214. Cf. White, 74 U.S. at 728-29 (supporting Thirteenth Amendment and black suffrage). 215. Id. at 737. Justice Grier continued: Is she not now held and governed as a conquered province by military force? The act of Congress of March 2d, 1867, declares Texas to be a "rebel State," and provides for its government until a legal and republican State government could be legally established.... It is true that no organized rebellion now exists there, and the courts of the United States now exercise jurisdiction over the people of that province. But this is no test of the State's being in the Union; Dacotah is no State, and yet the courts of the United States administerjustice there as they do in Texas. The Indian tribes, who are governed by military force, cannot claim to be States of the Union. Wherein does the condition of Texas differ from theirs? Id. at 738. And, of course, the case was not the Court's only decision touching on the legitimacy of Congressional Reconstruction. See, e.g., the fiasco of Ex parte McCardle, 73 U.S. (6 Wall.) 318 (1867); the Test Oath cases: Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866), and Cummings v. Mo., 71 U.S. (4 Wall.) 277 (1866); and Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), as discussed in Fairman, supra note 127, at 182-252; Hyman & Wiecek, supra note 47, at 373; and Kutler, supra note 137, at 64-88. 216. See Fairman, supra note 127, 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." (citing United States v. Florida, 363 U.S. 121, 131-32 (1960) (Frankfurter, J., 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.
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dox for Reconstruction: If the southern rebel states were still in the Union, 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, but condition federal recognition of southern states on ratification of the same?2 18 And, 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, on what ground could the Fourteenth Amendment be considered "ratified" 2 19 within the meaning of Article V? If, on the other hand, the southern states lost their status as states by seceding-had reverted, as Justice Grier suggested, to "conquered provinces"-most of these troubling constitutional questions disappear. 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. The trouble here, of course, is that the consent of the southern states was sought by the Reconstruction Congress, and for reasons not altogether different from those Lincoln expressed in April 1865 just before he was shot: [1]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. I do not commit myself against this further than to say that such a ratification would be
questionable, .
220 States would be unquestioned and unquestionable.
.
. while a ratification by three-fourths of all the
White."))); cf. Brandwein, supra note 76, at 105-06 (examining Fairman's interpretive biases). 217. Foner, supra note 75, at 271-77. 218. Id. at 276. 219. Article V provides that amendments "shall be valid . . . when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress ...... U.S. Const. art. V; see Fairman, supra note 127, at 510 (concluding that without congressionally mandated Military Reconstruction in 1867, the Fourteenth Amendment would have failed ratification due to southern recalcitrance). See generally 2 Bruce Ackerman, We the People: Transformations 99-252 (1998) (discussing the problematic ratification of the Reconstruction Amendments). Although he does not see the implications of forced ratification for the survival thesis, Fairman rightly admonishes that "to be honest with the facts, one may not extol the benefit yet repugn the cost." Fairman, supra note 127, at 510; see also Gillette, supra note 75, 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). 220. Lincoln, Last Public Address, supra note 211, at 851; see also Fairman, supra note 127, at 257 (agreeing that ratification by loyal states only would have left the Amendment "questionable and infirm").
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Lincoln was only half right, though. 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), but the involuntary circumstances of southern ratification made the more inclusive approach to the amendment process "questionable" too. 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, fundamentally altering the balance of power between the states and the national government.2 22 To escape this paradox, revivalists must either ignore it altogether or try to build a reassuring narrative of congressional deference to states' rights. 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 outside the monumentalist mode of the survival thesis, the plain facts of federal military control in the South following the Reconstruction Act of 1867 make this argument exceedingly difficult to sustain. 223 Thus it is no surprise, as Bruce Ackerman observes, that the first strategy is dominant-the ugly facts of ratification have simply been consigned "to the collective unconscious," shrouded by a "curious silence. ''224 The Reconstruction Act especially gets short shrift in historical accounts. This is a mistake, since it marked a sharp break with Federalist traditions. . . . It transformed the Union Army into a bureaucratic engine expressing the national interest in Reconstruction and the ratification of the Fourteenth Amendment. [It also] made it the business of each of the five district commanders to register the black and white voters Congress
221. Ackerman, supra note 219, at 111; cf. John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L. Rev. 375, 436-51 (2001) (arguing that ratification of Reconstruction Amendments was highly irregular but nevertheless legitimate; conceding that principles of state autonomy were violated in the process). 222. Intermediate theoretical positions abounded at the time. Tojustify military rule and delayed federal recognition of the rebel states, the most prominent theories relied either on federal war powers (the so-called "grasp-of-war" doctrine) or on the Guarantee Clause. See U.S. Const. art. IV, 4; Hyman & Wiecek, supra note 47, at 267-70, 296, 326 (discussing reliance on both by Reconstruction Congress). But the coherence and persuasiveness of the grasp-of-war doctrine diminished with each passing year after Appomattox, and authority Linder the Guarantee Clause turned entirely on novel ideas about the minimal attributes of a "republican form of government." U.S. Const. art. IV, 4. More importantly, for our purposes, neither theory squarely meets the problem of deliberate deviation from the Article V process for constitutional change. 223. For the language of the statute and supplemental legislation, see The First Reconstruction Act (Mar. 2, 1867), reprinted in Radical Republicans, supra note 75, at 379, 380-82; Supplement to the Reconstruction Act (Mar. 23, 1867), reprinted in Radical Republicans, supra note 75, at 382, 383-88; Supplement to the Reconstruction Act (July 19, 1867), reprinted in Radical Republicans, supra note 75, at 402, 403-07. 224. Ackerman, supra note 219, at 99.
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considered eligible. The Army would then supervise a first round of elections for a constitutional convention, and a second round determining whether a majority supported the new constitution emerging from the convention .... [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. 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." 2 26 Southerners could resist only on pain of delaying both representation in Congress and the withdrawal of federal troops. Thus, 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. Ackerman finds, quite rightly I think, 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. There is, he writes, "a deep unity... between the nationalizing substance of the Fourteenth Amendment and the nationalizing process through which [Congress] proposed to enact it into law. Both substance and process put national citizenship first ... redefin [ing] We the People of the United States as We the People of the United States." 229 Can we still (authoritatively) reach back to robust antebellum federalism principles without recalling this deep unity, 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. Id. at 202. Similar problems exist in the ratification of the Thirteenth Amendment byJohnson's provisional governments. See id. at 133-59. 226. Id. at 203-04. 227. Id. at 204. The framework for federal enforcement of the Reconstruction Amendments, once ratified, would have been equally horrifying to the founding generation, especially interventions in the early- and mid-18 7 0s to deal with southern state elections marred by systematic fraud and intimidation at the polls, flagrant violence against blacks, and armed, competing state "governments" seizing state offices. See generally Gillette, supra note 75, at 76-210. 228. Ackerman, supra note 219, at 198. 229. Id. at 199. Compare John C. Calhoun, A Discourse on the Constitution and Government of the United States, reprinted in Lence, supra note 202, at 7, 83-85, 95-97 (disputing nationalist inferences drawn from the Preamble of the Constitution before the Civil War). 230. This is where I part company with Ackerman who, by seeking legitimacy for the re-founding in popular sovereignty, must accept the undoing of the re-founding by widespread popular support for Redemption. See generally Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const. Comment. 115 (1994) (using Redemption to develop critique of Ackerman's theory).
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"skyrocketing respect for state rights and forjudicial review"'23' animating the centrists and Redemption was fundamentally corrupt. 3. The Original Thirteenth Amendment. - "Between 1870 and the mid1880s," Hyman and Wiecek write, "administrators, judges, lawyers, 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, concerning defenses of national rights. ' 232 The Amendment "not only faded. It lost its dynamic meanings of 1865. By 1880 it was almost a relic." 233 Looking now at the text of the Thirteenth Amendment, it is perhaps easy to see why it fell into desuetude with the "spreading myopia"2 3 4 of the "Retreat from Reconstruction." 2 35 Once removed from the morally and politically charged moment of emancipation and northern victory, the language was clearly susceptible to the monumentalist interpretation that it "ended slavery, nothing more." 23 6 If the spirit of that moment were revived and the Thirteenth Amendment were read to include a substantive equality principle, the implications for federalism would be far reaching since the Amendment contains no state action limit. 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. With the aid of the Slaughter-House Cases,23 7 we have forgotten all this. But we have forgotten other facts about the Thirteenth Amendment that are even more problematic for the survival thesis. Not only have we forgotten original meanings of the Thirteenth Amendment as ratified in 1865, we have forgotten the original Thirteenth Amendment. From the perspective of countermemory, the Thirteenth Amendment, indeed all three Reconstruction Amendments, 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, within any State, with the domestic institutions thereof, includ-
231. Hyman & Wiecek, supra note 47, at 465. 232. Id. at 464. 233. Id. at 465. 234. Id. at 464. 235. Gillette, supra note 75, at x. 236. Hyman & Wiecek, supra note 47, at 431. 237. 83 U.S. 36 (1873); see also The Civil Rights Cases, 109 U.S. 3, 24-25 (1883) (stating that broad construction of Thirteenth Amendment would "run[ ] the slavery argument into the ground"); Hyman & Wiecek, supra note 47, at 468 (arguing that one effect of Slaughter-House's deemphasis of Thirteenth Amendment was "to separate the pieces of Republican policy, and to isolate them from their historical connections" (quoting Patricia Allen)).
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ing that of persons held to labor or service by the laws of that 1 23 8 State. There were, Michael Vorenberg reports, "roughly 150 slavery amendments.. . proposed... between December 1860 and March 1861, when Lincoln took office. '239 And in the midst of the secession crisis, "[a]lmost all of the proposed slavery amendments ... sought to protect rather than abolish slavery. 2 40 But the language I have quoted is rightfully considered the original Thirteenth Amendment-among all the alternative proposals, the so-called "Corwin Amendment" was the only one passed by both houses of Congress, signed by President Buchanan (just before Lincoln took office, as it happened), and then submitted to the states for ratification. 241 As an unamendable Amendment it not only would have protected slavery in the southern states as long as those states wished, it would have permanently insulated all "domestic institutions" of the states from federal intervention. The original Thirteenth Amendment was thus a paradigmatic expression of robust antebellum federalism principles. There was some early opposition to the Amendment, 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. '24 2 It is tempting, on these grounds, 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. 243 "[T] he fantasy of constitutional compromise," Vorenberg writes, "was shattered by Confederate guns aimed at Fort Sumter" just a month after the Corwin 244 Amendment was sent to the states for ratification. But support for the Amendment was not the result of expedience alone. Even early opponents "were satisfied by the claims of other Republicans that the amendment, ratherthan making a genuine change to the Constitution, merely prevented 'misconstruction of existing provisions.' "245 Lincoln's endorsement of the Amendment a day after its passage in his First Inaugural Address confirmed this view:
238. Cong. Globe, 36th Cong., 2d Sess. 1284 (1861); see also Hyman, More Perfect Union, supra note 137, at 46 (describing Republican support for proposed Amendment). 239. Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 18 (2001). 240. Id. at 19. 241. See id. at 20-21. Two states, Maryland and Ohio, voted for ratification. Id. at 21 n.43. The President's signature is not required by Article V, but it demonstrates the breadth of support the Amendment enjoyed and the hopes much of the nation had invested in it. 242. Id. at 21. 243. See id. at 22 (challenging Hyman's claim that Amendment reflected pressures of low moment in constitutional ethics). 244. Id. 245. Id. at 21 (emphasis added) (quoting Congressman Albert Porter).
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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, I fully recognize the rightful authority of the people over the whole subject, . . . and I should, under existing circumstances, favor rather than oppose a fair opportunity being afforded the people to act upon it.... I understand a proposed amendment to the Constitution-which amendment, however, I have not seen-has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no 24 6 objection to its being made express and irrevocable. 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. While the Union may have survived the Civil War, the Constitution-insofar as it endorsed slavery and implicitly recognized first principles of robust federalismdid not. Viewed from the perspective of countermemory, the Reconstruction Amendments cannot be read (and first principles of robust federalism cannot be invoked), without considering the "differences between what might have been, and what came to be." 2 4 7 The federalism revival depends upon forgetting these differences.
CONCLUSION
In closing, I want to return to the objection that the method of constitutional interpretation I have pursued breaks from authoritative methodologies. Countermemory seeks to recover constitutional meaning obscured by monumentalist historical consciousness. As such, it invites all the objections familiar to historical and structural interpretation, and perhaps others too. But it is hardly radical to say that the conditions established for saving the Union, for restoring rebel states to 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. Lincoln, First Inaugural Address, supra note 194, at 655 (emphasis added); see also Vorenberg, supra note 239, at 22 ("Lincoln and his party thought of the amendment not as a genuine constitutional change, but rather as an expedient tool to preserve the loyalty of the upper South and to breed unionism in the deep South."); id. at 20 (noting that Lincoln had considered slavery-protecting amendments and may even have played role in Corwin Amendment). 247. Hyman, More Perfect Union, supra note 137, at 47. 248. Justice Kennedy gave a paradigmatic statement of the Court's view of the conditions of entering the Union in Alden v. Maine:
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mentalist historical consciousness, the conditions of re-enty speak at least as forcefully to federalism principles as the original conditions of entry. Recovering our "subterranean history" 249 -the fact of slavery and secession, the coercive assertions of national power underlying emancipation and ratification, and the robust federalism of the original Thirteenth Amendment-may prove inconvenient for inferences the revivalists want to draw from the Founding. 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), are relevant to constitutional meaning, especially the meaning of 25 federalism. This is not to say that countermemory and the Court's approach are methodologically identical. Like the Gerzes' sinking monument against fascism, which the artists compared to "a self-mutilation"-"a great black knife in the back of Germany, 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. It promises not a comforting play of recognitions but the frustrating labor of exposing and provoking resistance. And countermemory is quite radical insofar as it refuses to credit
"Eleventh Amendment immunity"... is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional Amendments. Simply put, "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." 527 U.S. 706, 713, 727 (1999) (emphasis added) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 239 n.2 (1985)). 249. Young, supra note 1, at 45. 250. The Court's new Eleventh Amendment jurisprudence, to cite the most pronounced example, employs hotly contested histories and bold structural inferences to locate a meaning in the Amendment the plain words simply cannot bear. See supra notes 114-119, 139 and accompanying text. Sniping between the majority and dissenters about the implications of the Founding for the Eleventh Amendment is particularly bitter in Alden, 527 U.S. at 724, 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. Georgia]" (emphasis added)), but, as this and other cases show, neither side disputes that history matters to how we answer questions about state sovereignty. Thus, at least when the issue is the scope of federalism principles, special reasons must be given (reasons not articulated in the cases) to limit this method to the Founding and the Eleventh Amendment. If context matters to text there, it surely matters with the Reconstruction Amendments. 251. Young, supra note 1, at 34.
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the perverse desire of Reconstruction centrists for closure. But if countermemory can guide adjudication, there is good reason to prefer it to the amnesic double move of the revivalists. Can it guide adjudication? Many possibilities, perhaps too many, can be seen in rejecting the survival thesis. 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. Further work with countermemory is needed to explore answers to these questions. But from the memory work we have done, I hope at least to have shown that Justice Marshall's provocative reversal is not, and ought not be, unthinkable. Rather, thinking it is a necessary condition both of understanding the moral, doctrinal, and political consequences of the federalism revival and of imagining compelling alternatives. On the more radical end of the spectrum of possibilities opened by thinking Marshall's thought, we might come to the conclusion that robust federalism, in the sense famously expressed by Madison in The Federalist Number 45, is dead. 253 However startling and pernicious the assertion may seem, 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, belie the contrary conclusion of revivalists. Indeed, 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. On the more moderate end of the spectrum, thinking Marshall's thought might lead to a burden-shifting presumption against robust fed252. 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. 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." The Federalist No. 45, at 260 (James Madison) (Clinton Rossiter ed., 1999); see also United States v. Lopez, 514 U.S. 549, 552 (1995) (quoting this passage to express "first principles" of federalism). Madison, it is worth noting, also endorsed a strong conception of popular sovereignty in No. 45. See The Federalist No. 45, supra, 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, [l]et the former be sacrificed to the latter."). 254. See Justice Breyer's dissents in Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 772 (2002), University of Alabama v. Garrett, 531 U.S. 356, 376 (2001), United States v. Morrison, 529 U.S. 598, 655 (2000), College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 693 (1999), and Lopez, 514 U.S. at 615; see also Scheiber, Redesigning, supra note 121, 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).
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eralism. The Court now regularly invokes robust federalism principles as a structural constraint on congressional prerogatives, often emphasizing that respecting federalism principles is liberty-enhancing. If the Reconstruction Amendments represent a re-founding, the bare assertion that first principles of federalism are liberty-enhancing, and the Court's obsessive presentiment about "centralization," traditional areas of state concern, and the "dignitary" rights of states, should carry little weight. Before employing these principles to constrain congressional prerogatives, 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. "[F] orgetting," James Booth has written, "is an essential part of politics because it is an ally of peace and unity." 255 It "answers one vital need of a community, especially after deeply divisive political traumas; it allows an end, a final point, to strife. '25 6 To interpret the Reconstruction Amendments as countermonuments, to think Marshall's thought, is to admit that we have forgotten too much about our great national trauma. It is to commit to reading the Thirteenth, Fourteenth, and Fifteenth Amendments as written both for and against the strange unity and peace they secured.
255. Booth, supra note 45, at 784. 256. Id.

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CONSTITUTION AS COUNTERMONUMENT: FEDERALISM, RECONSTRUCTION, AND THE PROBLEM OF COLLECTIVE MEMORY

1993 1998 2003 2005

COLLECTIVE MEMORY, NATIONAL IDENTITY, AND CONSTITUTIONAL INTERPRETATION .............................

THE METHOD OF COUNTERMEMORY ...........................

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CONSTITUTION AS COUNTERMONUMENT2 II.

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