Constitution as Countermonument: Federalism, Reconstruction and the Problem of Collective Memory
January 01, 2003
Bibliography: Norman W. Spaulding, Constitution as Countermonument: Federalism, Reconstruction and the Problem of Collective Memory, 103 Columbia Law Review 1992 (2003).
In this Article, Professor Spaulding reorients criticism of the Rehnquist Court's federalism jurisprudence as 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 antebellum federalism principles turns on a "chillingly amnesic" suppression of the structural significance of the Civil War and Reconstruction Amendments. In Professor Spaulding's view, the conditions for saving and restoring the Union after the Civil War are just as relevant to reasoning about state sovereignty as the conditions for entering the Union at the Founding. The Rehnquist Court avoids the deep implications of Reconstruction for federalism only by relying on what Professor Spaulding terms "monumentalist" historical consciousness-a technique of historical and doctrinal analysis that simultaneously exalts certain first principles of federalism established at the Founding while systematically diminishing the plain exertion of national power over the states during the Civil War and Reconstruction. Professor Spaulding argues that we can begin to recover the significance of the War and Reconstruction for federalism principles through the method of countermemory-a form of historical consciousness that seeks to reveal both the perverse desire animating monumentalist memory work and the inconvenient facts 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 approach toward interpretation of the Reconstruction Amendments may seem, Professor Spaulding argues that it is nevertheless consistent with the Rehnquist Court's insistence that history and constitutional structure matter as much, if not more, than strict textualism in interpreting federalism principles.