reading the constitution backwards and forwards

[Jessica Silbey]

I am rereading Granholm v. Heald and its discussion how the 21st Amendment
affects the states' power to (or not to) discriminate in the interstate
commercial market of liquor. It seems the Court often reads the Constitution
"backwards" - reading an amendment back onto previous Constitutional
provisions to substantively change them (see sovereign immunity cases and
the impermissible abrogation of state immunity under the commerce clause
because, crudely speaking, the Eleventh Amendment came after the power
granted to congress under Art. 1, sec. 8) - as well as it reads the
Constitution "forwards" - inferring from later or future amendments a lack
of substantive rights or grants of power in earlier ones (see, e.g.,
discussion of Fifteenth Amendment as compared to Fourteenth Amendment in
Minor v. Happersett).  In Granholm v. Heald, the 5 justice majority
interprets the 21st Amendment as restoring the right of states to regulate
in-state liquor manufacture, sale and consumption as it arguably existed
under the Wilson and Webb-Kenyon Acts prior to the passage of the 18th
Amendment, that is, a power to regulate liquor intrastate on a
non-discriminatory basis (as regards other states).  The Court therefore is
reading the 21st Amendment backwards, but only back to the 18th Amendment,
and not as far back as to Art. 1, section 8, as a gloss or revision of the
powers originally granted to Congress.  

 

As someone who spent much of her graduate student life in a comparative
literature department, the idea of reading "backwards" or "forwards" as two
helpfully distinct ways of reaching some hermeneutic statis seems silly, but
I have also learned that an aspect of silliness does not foreclose the
persuasiveness of constitutional interpretation.  So my question to the list
members is two-fold:  (1) what other examples of reading the Constitution
"backwards" and "forwards" come to mind as a way to explain a result in a
particular case; and (2) assuming reading "backwards" or "forwards" is only
marginally helpful (if because it seems so formalistic or because it seems
to be inevitable), under what circumstances does it fail to aid (or does it
undermine) an explanation of the meaning of constitutional provision at
issue?  In the context of Granholm, for example, how do we explain the
court's reading of the Constitution backwards, but only to a limited extent:
where the states' power was frozen (or perhaps codified) by the Wilson and
Webb-Kenyon Acts at the time of the passage of the 18th Amendment, any
future amendment (the 21st) would only reinstate state power as to that
point?

 

 

________________________________

Jessica Silbey

Assistant Professor of Law

Suffolk University Law School

120 Tremont Street

Boston, MA 02108

617-305-6270 (office)

617-305-3079 (fax)

jsilbey at suffolk.edu

 

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