Perhaps Justice Scalia is reading the wrong Constitution?

From: Walter Dellinger
Posted Tuesday, June 26, 2012, at 6:07 PM ET

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Rereading Justice Scalia’s amazing dissent in the Arizona immigration case brought to mind an astute observation by the statesman/humorist Sen. Al Franken. The Founding Fathers, he noted, adopted a constitution that gave all the important powers to the states, and very few to the national government. Pause. That didn’t work, he says, and so a decade later they got rid of the Articles of Confederation and adopted the Constitution we have today.

Justice Scalia’s exaggerated view of a sovereign-state-centric constitution sounds a lot like the one that those who met in Philadelphia in the summer of 1787 rejected and replaced with a national Constitution. As John Marshall was later to say of this new Constitution, “The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government.”

The national government, to be sure, slumbered through its first half-century. Its full potential was reached only with the Civil War, and after the passage of the 14th Amendment’s sweeping limits on state prerogatives. The notion of states as fully “sovereign” seems hard to square with the reality of the American Constitution we have, especially the post-Civil War “Rebirth of Freedom” Constitution.

And yet, the one thing an advocate before the Supreme Court can never, ever do is to suggest in any way that the states are less than fully sovereign. Full state sovereignty has to be taken as an assumption, or a trap door will open beneath your feet and you will descend to some black hole deep in the basement of the court. Thus, state sovereignty is used as the premise of a question Justice Scalia asked of the solicitor general at argument in the immigration case: “<W>hat does sovereignty mean if it does not include the ability to defend your borders?” Well, what it means is that if ability to defend your borders is a key concept of sovereignty, then sovereignty is a wholly inapt description for American states. I would have thought it clear under the national Constitution that the American people are free to move throughout the country: New York simply cannot keep out people from New Jersey ..