Defending States’ Rights: Impossible (Almost) | Sotirios Barber
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Defending States’ Rights: Impossible (Almost) | Sotirios Barber

January 3, 2020

I want to thank Professor Bibby and
Thomas Hone for their work in putting this conference together and inviting me to this really beautiful state and this exciting University. Also the students who have
helped to shuttle us around: Aaron, Top, and Jeremy. The subject of the conference
is federalism and I’m going to be talking about states rights federalism.
I’ll keep my comments brief because I’m anxious to hear what the others have to
say, especially what the Congressman has to
say. If you’re dealing with a practical subject “walking the walk and talking the
talk” are closely connected. You don’t want to talk the talk that can’t be walked. Since the Congressman has done both, i’m anxious to hear what he has to say.
Now I think states rights federalism is actually an unconstitutional idea. I
think it actually may even be an anti constitutional idea. But that’s not to
say that federalism is either unconstitutional or anti constitutional,
because there are really two kinds of federalism, roughly two kinds. Maybe some
people can come up with a third or even fourth kind, but roughly two kinds.
There’s national federalism and there’s states right’s federalism. Now national
federalism has a certain understanding of the Constitution. For national
federalism the Constitution is basically a means to certain ends as the preamble
indicates and as the ratification indicated. It’s just an arrangement
of offices and powers which is designed to bring about a certain desirable state of affairs, a certain desirable state of society, a society that enjoys
such goods as national security, national prosperity, equal opportunity and so forth. For the National Federalist, for the positive constitutionalist, the powers of the government are good
things, because the powers are those authorizations to pursue these public goods to which the people aspire. Also for the National Federalist, as the National federalist looks at the
constitutional text, looks at the ratification debate, and most importantly
as he consults just plain old-fashioned common sense, that the powers of the
national government indicate that the ands of the National are superior. Pray, if you will, even morally superior to the ends of the states. Therefore when Congress or the national government is doing what is authorized to do, if it’s pursuing goals it is authorized to pursue, it may
freely disregard the reserve powers of the states. Not only that, but when national policies and state policies clash precisely because the national
government is pursuing superior ends. The national government wins. Not only that,
there are no reserved states rights limitations on national
power when the national government doing what it’s authorized to do. A further article and
among the tenets of National Federalism is that constitutional powers should be
broadly conceived. Now one of the interesting things about American
constitutional thought for the past two hundred and twenty-five years is that, for
the most part, the state’s rights position has not enjoyed a foothold in
the area of America’s foreign affairs and defence powers. The states
rights position has enjoyed a foothold only among, only with regard to
Congress’s, to the nation’s domestic powers. I’ll get into that a little later.
I better move on. I hope I have a chance to comment on that somewhat later. Now the states
rights federalism subscribes to a negative constitutionalism. States rights
federalism, the basic understanding of the Constitution of the state’s
writer, is that the Constitution has a way of limiting the powers of government.
That constitutionalism means restraining the powers of government essentially. Restraining the powers of government. So the state’s writer sees
the Constitution as dividing the powers, the total power of government, into two spheres. One sphere belongs to
the nation, the other sphere belongs to the states. And the national government
in exercising its powers has to respect the line that separates state powers from
federal powers and from national powers. The states writer
believes that there are basically two ways of honoring this so-called line
between the power of the nation and the powers of the states. Am I fading in an out? Okay. One is to define the national powers
narrowly. The other is to say that even when Congress is doing what it’s
authorized to do, it has to limit itself in order not to encroach upon the
reserve powers of the states. Now two quick arguments can be made against states
rights federalism. The first is an argument against negative
constitutionalism, of which the state’s rights position is apart. Negative constitutionalism doesn’t make
any sense. It doesn’t make any sense. At least it doesn’t make any sense as an
understanding of the American Constitution for one simple reason. No
one in his right mind would establish a government for the chief purpose of
limiting the government. That would be like a furniture maker making a chair
that is hard to sit on. Now you can imagine a furniture making a chair that’s hard
to sit on, if he’s making the chair for the performance of some sort of a circus
clown in the circus. But no one who’s interested in the demands of daily life
and in the demands of government would build a machine including the Constitution of the United States that was just for the purpose of restraining the machine. So at
some level the state’s rights position makes no sense, because negative
constitutionalism makes no sense. Also another problem with states rights
constitutionalism is it seems to be unfair. One of the doctrines of the
National position is that the states are part of the national system. The state’s
participate in national policy making. The states participate in
selections of the the executive directly. The states participate indirectly in the
selection of judges and ambassadors and other officials of the government. And of
course the states have the power to change the constitution through
constitutional amendments. So the states are part of the national system. Now one
of the problems with states rights federalism is that a state which
participates in the process of policy formation, just one single state and
losses in that process, can then turn right around and nullify the decisions
of the national government as a whole. Having participated in the process
and lost in that contest, just one state can nulify what the Collegium
has has decided. Now the old-fashioned States writers in the
early 19th century argued, John C. Calhoun for example, argued that an individual state
could nullify directly on its own. Now that argument isn’t heard so much
anymore these days, although it is hear occasionally. Now an individual states, just one
individual state representing a tiny fraction of the American public as a
whole, can go to a court and asked a court to nullify the decision of the
government as a whole. This seems to be unfair. Am I running out of time? Okay, let me know when I got about three minutes left. This seems to be unfair. And so it’s legitimate to ask,
what justifies states rights federalism? Now the state’s writer cannot look at
the Constitution or at the Constitution’s ratification and justify
states rights on that basis. The reason is and I think almost any honest
person would have to agree with this to be honest with you, to be frank with you, the reason is that the Constitutional text can be read both ways. And also the ratification debatecan be read both ways. This morning we had presentation of the constitutional
philosophy of James Madison. I think Madison’s position can be read both ways.
You can take a look at John Marshall, one of our leading nationalists. Things that he says put him on different occasions on different sides of the federalism debate. You can say the same
even about John C. Calhoun. John C. Calhoun wasn’t consistently a states writer. John
C. Calhoun wasn’t consistently a nationalist. He was on both sides of the
debate. So then the question becomes this, why should we read
constitutional text and why should we read constitutional history the state’s
rights way? Why not read constitutional text and why not read constitutional
history the nationalist way? Now my thesis is, in here I borrow from a classic article by Malcolm Feeley and Edward Rubin. I think Professor Feeley is going to be here tomorrow. It’s impossible for the states writer to make an argument justifying the states
rights view of the Constitution. And the reason for that, let me see if I can see
state it in a way that it’s understandable, the reason for that is this, in order for
this states writer to make an argument, now don’t get me wrong, the states
writer can defend states rights in a number of ways. The states writer can
defend states rights by walking away from the debate. The states writer can defend states rights by resorting to violence. The question is
whether the state’s writer can defend states rights with an argument. Whether
the state’s writer can give a reason for those of us who don’t believe in states
rights to believe in states rights. Now what I like to call the logic of the
forum, the rules governing what it means to
give a reason to somebody who disagrees with you. I won’t go into this at length.
I’ll just summarize it and and maybe during the question period I’ll show you
how this applies to the to the position that John C. Calhoun took on slavery.
But the argument is basically this, in order for this states writer to defend, to
give a reason, why we should read the constitution to states rights way, the states
writer has to appeal to, has to involve, some nationally recognized good or
something nationally recognized moral standards. Some nationally recognized
good or some nationally recognized principle of political morality. And its
implicit in the state’s rights tradition position that the state’s writer denies the existence of such a national good. That makes a state rights
position discursively indefensible. Now the question is, how can you justify
nationalism? Well once again I appeal to Rubin and Feely the way to justify
nationalism is simply this, to recognize a distinction between centralizing
authority as a constitutional matter and centralizing authority as a policy
matter. Decentralized policy does make a lot of sense for all the reasons that
professor Dinan enumerated this morning. Decentralizing policy does make a lot of
sense, but decentralizing policy doesn’t always work. Decentralizing
policy has failed this country numerous times. It failed this country in
the Cold War when the Russians put up Sputnik before we did. Sometimes
decentralizing policy works. Sometimes decentralizing policy doesn’t work. The
only authority that can decentralize is that authority which is constitutionally centralized. Only a constitutionally centralized authority can
decentralize policy-making on those occasions when there is a fair to
middling chance that decentralizing policy-making can work. Now if it’s come
to the point where we can’t trust our federal officials, our elected federal
politicians and our elected bureaucrats, to decentralize policy when they
ought to then we need a new Constitution. States rights isn’t going to work in any

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