Democrats and Republicans Alike Get the Supremacy Clause Wrong

When the issue of federal power over states’ rights come into the forefront, Democrats are quick to cite the supremacy clause as beyond debate.  Yet, Republicans often use the same talking points.  When GOP policies need that extra “federal muscle,” Republicans imitate their political opponents and claim federal law as supreme without question.

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‘Conservatives’ Remain Shamefully Silent on Unconstitutional Federal Gaming Ban

The strength of the movement to reinvigorate the Tenth Amendment comes from the states and not from Washington, DC where, unfortunately, even those who wrap themselves in the Constitution often fall short in their defense of it. That is especially true when political allies and campaign supporters demand the federal government “do something,” even it tramples on the Tenth Amendment. That’s exactly what is happening with the campaign to outlaw Internet gaming.

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The Ninth Circuit on Foreign Relations Federalism

The Ninth Circuit (Judge Harry Pregerson writing) had an interesting recent decision regarding foreign relations federalism in Cassirer v. Thyssen-Bornemisza Collection Foundation. The case involves California Code of Civil Procedure § 338(c)(3), which extends the statute of limitations for suit for the recovery of fine art against a museum, gallery, auctioneer, or dealer.

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A Question for Limited Government Centralizers

The phenomenon that continues to amaze me is how we who believe in decentralization often find ourselves in political agreement with people who hold completely different conceptions about the correct role of government. Conversely, those who agree with us politically are often the harshest critics of our insistence on decentralization.

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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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