What do you think?
Rate this book
The Fallacies of States' Rights
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.
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.
256 pages, Hardcover
First published January 1, 2013
1 person is currently reading
19 people want to read
Ratings & Reviews
Friends & Following
Create a free account to discover what your friends think of this book!
Community Reviews
Displaying 1 of 1 review
April 18, 2013
This is a very confused book.
The book tries to argue that the American constitutional theory of State Rights is irrational in comparison with the national theories. It doesn't succeed. Its argument are full of fallacies and it often begs the question. In fact, it begs the question most dramatically precisely when the author is busy accusing the "state righters" of begging the question. It is as if the author's mind were so possessed by nationalism that it could not possibly conceive the possibility of states' rights, and thus could only experience the sense of irrationality when confronted with it.
According to the author, the strongest argument against State Rights is that a "state righter" has no leg to stand on. According to the author, whenever a "state righter" would wish to argue his case, he would have to argue his case potentially against other "state righters", and thus, in order for the argument to make sense, he would have to argue his case in a national forum which would then adjudicate between the particular arguments, proving itself of greater authority than any of the particular states which it adjudicated. Hence, in the very act of trying to convince other people, potentially from different states, the "state righter" would be surrendering his state's sovereignty.
But this argument is patently false. There can be supra-sovereign political bodies which are themselves associations of sovereign entities, which said sovereign entities do not renounce their sovereignty simply by becoming associated. In fact, it is even possible to imagine that the authority of such supra-sovereign entities is subordinated to the sovereignty of the individual bodies which make it up, to the point that such supra-sovereign authority can be restricted. Take for instance the United Nations. And suppose that a particular restriction that is imposed to the authority of the U.N. is that it cannot dictate to the member countries what their official language will be. Clearly this is a restriction on the supra-sovereign union, and clearly such a restriction is for the benefit and happiness of all the member nations, despite the fact that there is no uniformity between them. Even with non-uniformity, each member nation can go their particular way, and no harm is done to the supra-sovereign body itself nor to the individual member nations in particular.
Yet another argument that the author uses goes something like this: if diversity of states' government were permitted, then, to make sure that no one's rights are trampled upon, each individual person ought to be free to choose which of the governments he preferred to live under; but then, once this choice had been accomplished, in order to continue to preserve the rights of those same people who had just chosen the state government under which they preferred to live, the states would then have to remain frozen in their chosen governmental system, unchanging; but then, the argument goes, the particular patchwork of governmental systems would form a national system, for the system would be described nationally, and might require the authority and force of a national government to enforce the initial choices. This particular argument is given under the guise of choosing between segregationist, partly segregationist, and racially integrated governmental systems (thus---given U.S. history---poisoning the well against the "state righters"). But the argument is false in general. Consider the sales tax. Some states have it; some states do not have it; and some states have a higher percentage than others. If the author's argument were true in general, the federal government would control the sales tax entirely. Or, once a state had chosen its sales tax policy, it would be unable to change it (whether to institute it, whether to abolish it, whether to increase it, or whether to lower it). But this patently absurd under current laws. Nor is there any harm coming to the federal government nor to the individual states because of the diversity of laws in each state.
I found very peculiar the understanding that the author gives to national institutions. Indeed, I think this is the central question, and he begs it... Why is it that Congress or the Presidency, or the Supreme Court are seen as agencies of the federal government? It seems to me, they could very easily be conceived as being agents of the union of the states (especially the Supreme Court, which must be obeyed by all, and which can side with the states against the federal government). In this second view (which it does not cross his mind to consider) the issue of states rights is very much a live question, and not at all an irrational one.
These and others flawed arguments puts the author's objectivity (and reasoning skills) into question. His case that "state righters" have no case is not really worth the time he spends on it. He doesn't take (or can't take) the question seriously enough.
By far his best argument against "pure state rights" is presented at the end of the book: namely that a state is not competent to handle issues which are bigger than the state, and which have ramifications beyond the state. This is a correct application of the principle of subsidiarity for problems whose scope is bigger than the states (although it is not a good argument for problems whose scope is merely local). And this is a good argument, though the author almost puts it forth as an afterthought, as if he had fully made his case. If he had used this principle throughout, the book would be much more convincing.
The author also argues against "Process Federalism" putting forth against it his own preferred theory of "Marshall federalism". Process Federalism would let the federal government pass whatsoever laws it could pass through the process, and the only right that the states would enjoy is the participation in the process of passing or blocking the law through whatever constitutional means were available to them. In Marshall Federalism the federal government would also have unlimited authority and could also freely ignore the will of the states (after having gone through the process of passing the law it wanted), but only when it comes to certain "enumerated powers". As the author himself proves, however, Marshall Federalism is simply a workaround leading to Process Federalism in the end, because the federal government could easily conceive of presenting almost any law in such a manner that they have authority to enact it. Thus, the author finally agrees, Marshall Federalism is unworkable in practice in the end.
So much for limited government.
The book tries to argue that the American constitutional theory of State Rights is irrational in comparison with the national theories. It doesn't succeed. Its argument are full of fallacies and it often begs the question. In fact, it begs the question most dramatically precisely when the author is busy accusing the "state righters" of begging the question. It is as if the author's mind were so possessed by nationalism that it could not possibly conceive the possibility of states' rights, and thus could only experience the sense of irrationality when confronted with it.
According to the author, the strongest argument against State Rights is that a "state righter" has no leg to stand on. According to the author, whenever a "state righter" would wish to argue his case, he would have to argue his case potentially against other "state righters", and thus, in order for the argument to make sense, he would have to argue his case in a national forum which would then adjudicate between the particular arguments, proving itself of greater authority than any of the particular states which it adjudicated. Hence, in the very act of trying to convince other people, potentially from different states, the "state righter" would be surrendering his state's sovereignty.
But this argument is patently false. There can be supra-sovereign political bodies which are themselves associations of sovereign entities, which said sovereign entities do not renounce their sovereignty simply by becoming associated. In fact, it is even possible to imagine that the authority of such supra-sovereign entities is subordinated to the sovereignty of the individual bodies which make it up, to the point that such supra-sovereign authority can be restricted. Take for instance the United Nations. And suppose that a particular restriction that is imposed to the authority of the U.N. is that it cannot dictate to the member countries what their official language will be. Clearly this is a restriction on the supra-sovereign union, and clearly such a restriction is for the benefit and happiness of all the member nations, despite the fact that there is no uniformity between them. Even with non-uniformity, each member nation can go their particular way, and no harm is done to the supra-sovereign body itself nor to the individual member nations in particular.
Yet another argument that the author uses goes something like this: if diversity of states' government were permitted, then, to make sure that no one's rights are trampled upon, each individual person ought to be free to choose which of the governments he preferred to live under; but then, once this choice had been accomplished, in order to continue to preserve the rights of those same people who had just chosen the state government under which they preferred to live, the states would then have to remain frozen in their chosen governmental system, unchanging; but then, the argument goes, the particular patchwork of governmental systems would form a national system, for the system would be described nationally, and might require the authority and force of a national government to enforce the initial choices. This particular argument is given under the guise of choosing between segregationist, partly segregationist, and racially integrated governmental systems (thus---given U.S. history---poisoning the well against the "state righters"). But the argument is false in general. Consider the sales tax. Some states have it; some states do not have it; and some states have a higher percentage than others. If the author's argument were true in general, the federal government would control the sales tax entirely. Or, once a state had chosen its sales tax policy, it would be unable to change it (whether to institute it, whether to abolish it, whether to increase it, or whether to lower it). But this patently absurd under current laws. Nor is there any harm coming to the federal government nor to the individual states because of the diversity of laws in each state.
I found very peculiar the understanding that the author gives to national institutions. Indeed, I think this is the central question, and he begs it... Why is it that Congress or the Presidency, or the Supreme Court are seen as agencies of the federal government? It seems to me, they could very easily be conceived as being agents of the union of the states (especially the Supreme Court, which must be obeyed by all, and which can side with the states against the federal government). In this second view (which it does not cross his mind to consider) the issue of states rights is very much a live question, and not at all an irrational one.
These and others flawed arguments puts the author's objectivity (and reasoning skills) into question. His case that "state righters" have no case is not really worth the time he spends on it. He doesn't take (or can't take) the question seriously enough.
By far his best argument against "pure state rights" is presented at the end of the book: namely that a state is not competent to handle issues which are bigger than the state, and which have ramifications beyond the state. This is a correct application of the principle of subsidiarity for problems whose scope is bigger than the states (although it is not a good argument for problems whose scope is merely local). And this is a good argument, though the author almost puts it forth as an afterthought, as if he had fully made his case. If he had used this principle throughout, the book would be much more convincing.
The author also argues against "Process Federalism" putting forth against it his own preferred theory of "Marshall federalism". Process Federalism would let the federal government pass whatsoever laws it could pass through the process, and the only right that the states would enjoy is the participation in the process of passing or blocking the law through whatever constitutional means were available to them. In Marshall Federalism the federal government would also have unlimited authority and could also freely ignore the will of the states (after having gone through the process of passing the law it wanted), but only when it comes to certain "enumerated powers". As the author himself proves, however, Marshall Federalism is simply a workaround leading to Process Federalism in the end, because the federal government could easily conceive of presenting almost any law in such a manner that they have authority to enact it. Thus, the author finally agrees, Marshall Federalism is unworkable in practice in the end.
So much for limited government.
Displaying 1 of 1 review