Dahlia Lithwick Endorses Originalist Vision of Federalism, Er, Not Really

I’m generally pretty skeptical about constitutional amendments, for a bunch of reasons. But writing in Slate, Dahlia Lithwick and Jeff Shesol offer a rather strange argument against the so-called “Repeal Amendment,” Randy Barnett’s idea to amend the Constitution to permit 2/3 of states to overturn federal laws. The argument: The Framers of the Constitution were geniuses that carefully drew the balance of federal and state power, and the last thing we should want to do is upset their carefully-crafted balance. Here’s the argument, with my favorite phrase in bold:

For a party (whether of the Tea or Grand Old variety) that sees the Constitution as something so perfect as to have been divinely inspired, the idea that it needs to be altered fundamentally is beyond crediting, something like putting the Fifth Commandment up to a popular referendum.

. . . As the historian Michael Kammen has chronicled, conservative cries of “hands off!” [to 19th and early 20th century reform movements to amend the Constitution] reflected the right’s sense of confidence that the intent of Founders ran inexorably in the direction of “state sovereignty,” property rights, and individual liberty. In other words, Mr. Madison et al. had put it all right there on paper—all the protection America needed against the excesses of democracy and the centralization of power. So why mess with success?

. . . [It] is hard[] to explain, from a historical perspective, . . . why [conservatives] 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.

A major problem with the argument is that there has been 200 years of Supreme Court caselaw since “our forefathers” drew that “exquisite balance,” and that caselaw today doesn’t bear much resemblance to the “exquisite balance” that the Framers struck. Lithwick is a full-time Supreme Court reporter, and Shesol just wrote a book on the Supreme Court, so I trust neither of them are entirely unfamiliar with this. Given that the federalism caselaw today is so far from “that exquisite balance that our forefathers labored long and hard to get right,” it seems odd to dismiss an effort to restore some of the original federal/state balance on the ground that it is “taking a shot” at that “exquisite balance.”

Of course, that doesn’t mean the Repeal Amendment is a good idea. Nor does it mean that we should overturn 200 years of Commerce Clause jurisprudence. But the Repeal Amendment is a response to judicial interpretations of the federalism provisions of the Constitution, not to the Framer’s original vision of federalism. Trying to claim inconsistency by suggesting it’s the latter rather than the former doesn’t strike me as a particularly impressive argument. (I realize there are those who see this sort of Slate article as simply about rallying the liberal troops, not about making a coherent argument: From that perspective, it’s a little unfair to look too closely at its claims. The end of the essay might support that conclusion, I concede. But I think too highly of Slate, and of Dahlia Lithwick and Jeff Shesol, to see it that way.)