The conservative mission to destroy the Constitution in order to save it.

The law, lawyers, and the court.
Dec. 3 2010 6:21 PM

Repealing Common Sense

The conservative mission to destroy the Constitution in order to save it.

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In this light, it is easy to understand the right's renewed eagerness to pitch particular amendments into Boston Harbor. What is harder to explain, from a historical perspective, is why they are now willing to take a shot right at the heart of the Constitution—the division of power between the states and the federal government, that exquisite balance that our forefathers labored long and hard to get right lest the whole experiment implode again as it had under the Articles of Confederation. There have long been popular movements to "reclaim" the original Constitution. The Repeal Amendment is not one of them.

There is so much wrong with the Repeal Amendment that it's difficult to know how to begin to respond. The Constitution is—by design—a nationalist document. It is also—again by design—an anti-democratic document. American history reveals precisely what happens when state or regional interests are allowed to trump national ones, and the Constitution has been at its best (for example, the Reconstruction Amendments) when it has addressed (and, better yet, resolved) that tension. Rick Ungar argues that the effect of allowing the states to veto any federal law that displeases them would be a return to a past that would endanger the very existence of the Civil Rights Act, any environmental protections, and various health and safety laws. As he explains:

Would the city of New Orleans ever be rebuilt following a Katrina disaster if 2/3 of the states were empowered to repeal federal legislation appropriating the money to do so? After all, what's in it for Texas? Or Ohio? While the port of New Orleans may be essential to the movement of goods into the nation—and certainly important to the economic viability of the city—the loss of the port would mean more business to other ports of entry in Texas or other regional centers. What, exactly, would be the motivation of any state that is not Louisiana to support the economy of New Orleans?

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And as Ungar concludes, "If this sounds familiar, it should. We've seen what happens when regional economic interests trump the desire to maintain the unity of our states. It was called the American Civil War."

Yet what we have heard in response to the Repeal Amendment from liberals is near-total radio silence. And it's not because liberals are eager to see a return to the conditions that led to Jim Crow or the Civil War. We just seem to have forgotten how to talk about the Constitution as if it's ours, too. After years of failing to respond to Reagan-era cries of "liberal judicial activism," and failing to push back against the singular perfection of originalism, it's as if we've ceded the entire document to conservatives—as well as the fight over its history and meaning.

It is one thing to fetishize states rights and the will of the people above all things. It's quite another to anchor that fetish in the Constitution itself—which was drafted to be a bulwark against both.

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Correction, Dec. 6, 2010: The original image on Slate's home page linked to this article depicted the signing of the Declaration of Independence, not the signing of the Constitution.

Jeff Shesol is the author of Supreme Power: Franklin Roosevelt vs. The Supreme Court and is a former speechwriter for President Bill Clinton

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.