The Fallacies of Marshallian Nationalism

At Law and Liberty, Adam Tate: The Fallacies of Marshallian Nationalism (reviewing The Fallacies of States’ Rights by Sotirios A. Barber (Harvard University Press 2013)).  From the introduction:

In this spirited polemic, Prof. Sotirios Barber defends the American nationalist constitutional
tradition, particularly the thought of John Marshall, from the attacks of both states’ rights advocates (who he calls “dual federalists) and process federalists, those who believe national power should be used in expansive ways to protect individual rights without working to establish one specific American society.

Barber uses Marshall’s 1819 decision in McCulloch v. Maryland as the starting point for nationalist analysis. Hence, he mentions only briefly the important clashes between nationalists and their opponents during the first three decades of the Early Republic. In explaining the rationale behind what he calls “Marshallian federalism” Barber is at his best. Marshall advocated an “ends-oriented constitutionalism.” (16) He believed that the US government was limited in the sense that the government was confined to seek the ends set forth in the Constitution. Marshall’s “positive understanding” (32) of government power sought to help secure the people’s happiness and to instruct them as to their “true interests.” (19) Marshall defended “implied national powers, liberal construction of national power, and national legislative supremacy.” (52) In the midst of this celebration of expansive power, Barber admits, “Under the right circumstances, any and every area of social life could become subjects of concern to policy makers working for ends like national security and prosperity.” (44) Barber then scales back this claim by insisting that Marshallian federalism includes a “rule against pretexts,” meaning that Congress could not pass laws “whose actual motivating purpose is different from its stated purpose.” (68-69) This would guarantee limited “in the sense of properly motivated” government. Barber clearly identifies the presuppositions of “Marshallian federalism”: “a national community that predates the Constitution,” the responsibility of “the national government… for facilitation or securing” the “community’s controlling values,” and the denial that “individual states can lawfully avoid the burdens of pursuing these values.” (50) Nationalism presupposes a certain kind of American society – a Lockean liberal society (65) – and uses the power of the federal government to enforce it. Barber holds that the ends of Marshall’s nationalism “include national security, national prosperity, equal opportunity, and a secular and rationalist political culture.” (51) He mentions later that current Marshallian federalists should be motivated “by the values of today’s progressive liberals.” (68)

(It gets substantially more critical as it goes along…)

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Americans Asleep

Recently, I had a chance to meet with a close family member.  I hadn’t seen him in seven years.  We were both raised by the World War II generation with the American values of God, Country, and Family.  When we have talked on the phone, I noticed a few remarks that seemed out of character from what I knew we both believed.  He is good and intelligent, and so is his wife.

We met for lunch and chatted away.  The next day at lunch again, we got to talking politics.  We agreed on many topics, as I expected.  When I found that his wife had voted for the current guy living in the White House, I left it alone.  Eventually,we began talking about the mandate that everyone had to buy healthcare or pay a fine.   As he is not young anymore, I mentioned that I was concerned about him not being able to get the medical treatments he might need.  He wasn’t worried.  He is sure he will get anything he needs.  I pointed out the model diagram that Europe uses to decide if you are worthy of getting medical help.  Having been a member of the healthcare profession, I thought  he might appreciate the report on it that was in Lancet Magazine some years back.

After further discussion, we got onto the topic of being nothing more than a number to the government, and the fact that they might (and probably will) eventually tell you, “NO!” and not care for you.  They’ll pay for the pain pills (such compassion) so you don’t suffer as you are dying.   He said that was just fine.  I admit, it surprised me.   I asked “It’s OK if your government kills you?”

“Yeah, I don’t think about it.  If it’s my time to go, it’s OK.”

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Fox News Misses the Mark on Nullification

Picture the scene.

It’s October 1787 and three men take on the herculean task of getting the New York farmers on board with the Constitution before the ratification debates get started. But these guys are up for the task. I mean, we’re talking about James Madison, John Jay and Alexander Hamilton for goodness sake.

What’s really hard to imagine, in light of our world today, is that three different New York newspapers are anticipating the writings. They can’t wait to publish them!!!

Fast-forward to 2013. Fox News finally puts out a story about “nullification.”  But the bastion of “conservative” news is missing the mark. The Tenth Amendment Center has been a the forefront of liberty through nullification for over seven years now. Apparently, Fox News can’t be bothered with liberty.

Too radical?

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Cato Chairman On Nullification: An Amalgamation of Revisionist History Covered in Judicial Fairy Dust

Cato Institute chairman Robert Levy’s recent article, “The Limits of Nullification” is nothing less than an amalgamation of revisionist history covered in judicial fairy dust.  His assertions are premised upon a flawed understanding of certain fundamental principles and constitutional history.  Levy conveniently ignores them and, consequently, drawn inaccurate conclusions.

Let’s dissect this piece by piece.

Levy implies the Constitution was ratified by the people acting in their aggregate political capacity – a single unitary body politic.  In fact, many people believe this falsehood because they rely on the words “We the People of the United States” in the Preamble.  The initial drafts of the Constitution named each and every state.  They said, We the people of Maryland, Virginia, Delaware, etc.  But, Article VII of the Constitution states, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same”.

Each state is independent, free, and sovereign.  The ratification happened within each State by the people acting in their highest political capacity.  Each state voted up or down on the ratification.  There was no popular vote across all thirteen states.  There was no majority of people (50%, 75%, or 95%) of the people that could ratify the Constitution.  The people of each free, independent, and sovereign State ratified the Constitution independent form every other state.

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