There’s a little boy and on his 14th birthday he gets a horse… and everybody in the village says, “How wonderful, the boy got a horse.” And the Zen master says, “We’ll see.” Two years later the boy falls off the horse, breaks his leg, and everyone in the village says, “How terrible.” And the Zen master says, “We’ll see.” Then, a war breaks out and all the young men have to go off and fight … except the boy can’t ’cause his leg’s all messed up.  And everybody in the village says, “How wonderful.” The Zen master says, “We’ll see.”

And on and on it goes.  To add some color to this, I tend to think that the French Revolution is the most consequential event in recent history.  Why?  Well, if it wasn’t for the French Revolution, we wouldn’t have had Napoleon Bonaparate.  And if it wasn’t for Napoleon Bonaparte, we would not have had Napoleon III.  And if it wasn’t for Napoleon III, there may not have been a Franco-Prussian War.  And if it wasn’t for the Franco-Prussian War and its unsustainable peace, France would not have lost the territories of Alsace-Lorraine and there may not have been a World War I.  If it wasn’t for WWI and the crushing defeat and punishment of Germany, Hitler would not have come to power.  And if it wasn’t for Hitler, there would not have been a World War II.  Who knows what the world would look like today if the French didn’t cut off all of those heads almost two and a quarter centuries ago?

The course of history is extraordinarily complex and this is all a bit of an oversimplification.  But I think it’s safe to say that the complete comprehension of potential consequences resulting from such events is beyond human foresight.

“Hitler is defeated! How wonderful!”  We’ll see.  “The Soviet Union is no more!  Communism is defeated!  How wonderful!”  We’ll see.  “Afghanistan and Iraq are flourishing democracies!  How wonderful!”  We’ll see.

In a previous post, I argued that originalism as a method of constitutional interpretation can coexist with contemporary progressive values that are often held by those who oppose originalism.  To somewhat rearticulate my point, if we have a Constitution, we ought to treat it as such regardless of how inconvenient it may be in our pursuits of social change.  However, that does not mean we can’t address whether its provisions, while supreme and unyielding law, make normative sense in the 21st century.

Perhaps the biggest theme in the original Constitution is the principle of federalism.  While the Constitution lays out a framework for the operation of a federal government, it is in large part an exception (albeit a huge one) to the general proposition that power lies with the states.  States were originally free to govern as they saw fit so long as they did not offend “the supreme Law of the Land.”  Considering (1) the Bill of Rights were not at first binding upon the states, (2) the nature of early interstate commerce (the legal basis of contemporary federal legislation), and (3) the absence of the XIV Amendment, this gave states a whole lot of room to pass a wide range of laws.

But more than any other constitutional principle, American federalism has been almost radically transformed.  The Civil War and its aftermath led to the XIV Amendment, giving the federal government the power to enforce equal protection of the laws and apply the majority of the Bill of Rights to the states.  The New Deal redefined our understanding of “interstate commerce” and hugely expanded one of the few constitutional bases upon which Congress may act.  So while the original Constitution reserved the majority of power for the states, both the XIV Amendment and the Supreme Court’s expansion of “interstate commerce” carved a huge amount of that original power from the states and essentially handed it to the federal government.

Notwithstanding its transformation over the centuries, federalism remains a huge component in our constitutional scheme.  But if we were to start a Constitution from scratch today, how would principles of federalism fit in? Is federalism the best structure for governing a 21st century America?

My initial reaction is that I have no earthly clue.  My gut tells me that regionalism and state sovereignty were more sensitive issues back then given how much more we are interconnected these days.  The fear of a strong centralized government was also fresh in the minds of the founders.  The issue of slavery exacerbated conflicts of interests among the states and they refused to succumb to the idea of a federal government capable of imposing its will uniformly upon them.  The dynamic in those days was thus radically different.

But perhaps the way in which federalism has constitutionally expanded along side modernization is an accurate reflection of the balance needed in contemporary society.  Even if states were abolished, the federal government would need to govern locally and there are still unique attributes that accompany America’s localities that warrant different laws.  So is the question then whether we want the federal government making local law or separate state governments making local law?  How do either of these situations affect the way in which localities are governed?

These questions obviously raise an enormous amount of other issues, most of which I can’t think of.  One of them is whether Congress’s power to pass laws should be largely pinned to regulating interestate commerce.  It is so easy to cite interstate commerce as a justification for passing laws because virtually everything affects interstate commerce in the abstract.  The contemporary Congress seems to pass laws that go well beyond simply regulating interstate commerce.

Let me then shut up and leave you with this question: If you were to write a constitutional provision reflecting Congress’s actual authority under the commerce clause, how would you phrase it?  In other words, what does Congress’s power to regulate interstate commerce actually empower Congress to do?

Many of us may take the freedom of speech as such a necessity in any civilized society that we may forget to fully appreciate why.  In so doing, we may be turning a blind eye to some inherent downsides to free speech as we understand it.  Democracy, it is said, depends upon the free flow of information and opinion in the “marketplace of ideas.”  As John Stewart Mill explained, the search for truth requires the equal acceptance of all opinions, whether true, partially true, or false.  But what about when government has already made and implemented a policy decision of far reaching national consequence and now must ensure that it gets properly managed and handled?  Does the suppression of opposing opinion then become more justifiable and less problematic?

War provides an appropriate frame of reference.  Once the decision to go to war is made, the government, and perhaps the country in general, might have some interest in the suppression of anti-war publications.  At such point, further public discourse will not lead to a different result since the decision has already been made.  The fighting of the war itself may be hindered by incessant debate on the merits of fighting it.  Making fragmented public opinion prominent in the national headlines projects an image of internal weakness and illegitimacy.  Such speech might even embolden and encourage the country’s enemies.  In short, there seems to be a national security interest in suppressing ex post facto criticisms of an initial decision to go to war.

Of course, the people have an interest in such debate in order to ensure the propriety of future, similar choices.  But does this alone outweigh the national security interests described above?  I don’t think it necessarily does.  What does tip the scale against such suppression laws is that the government itself is the suppressor.  It is this fear of big and powerful government that is embedded in the First Amendment’s guarantee of free speech.  No matter how legitimate the government’s interests may be, it cannot suppress ex post facto criticisms of its own policies because that is precisely what the First Amendment is designed to guard against.  The framers didn’t think that government was incapable of properly restricting speech in appropriate contexts. But the fear of abuse resulting from empowering government to regulate speech was enough to give free speech in America the ultimate safeguard.

I bet President Bush would have loved a little Alien and Sedition Act of his own.  The merits of the initial invasion of Iraq are criticized to this very day, perhaps with good reason.  President Obama and future presidents will also have to deal with that thorn that is free speech.  In the face of the First Amendment then, the only antedote to the potential downsides of free speech is a population that excercises that right responsibly.