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…)
Here is the (substantially less critical) book description from Amazon:
The idea that “states’ rights” restrain national power is riding high in American judicial and popular opinion. Here, Sotirios A. Barber shows how arguments for states’ rights, from the days of John C. Calhoun to the present, have offended common sense, logic, and bedrock constitutional principles.
To begin with, states’ rights federalism cannot possibly win the debate with national federalism owing to the very forum in which the requisite argument must occur—a national one, thanks to the Civil War—and the ordinary rules of practical argumentation. Further, the political consequences of this self-defeating logic can only hasten the loss of American sovereignty to international economic forces. Both philosophical and practical reasons compel us to consider two historical alternatives to states’ rights federalism. In the federalism of John Marshall, the nation’s most renowned jurist, the national government’s duty to ensure security, prosperity, and other legitimate national ends must take precedence over all conflicting exercises of state power. In “process” federalism, the Constitution protects the states by securing their roles in national policy making and other national decisions. Barber opts for Marshall’s federalism, but the contest is close, and his analysis takes the debate into new, fertile territory.
Affirming the fundamental importance of the Preamble, Barber advocates a conception of the Constitution as a charter of positive benefits for the nation. It is not, in his view, a contract among weak separate sovereigns whose primary function is to protect people from the central government, when there are greater dangers to confront.
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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