Academic journal article Boston University Law Review

Fallacies of Fallacies

Academic journal article Boston University Law Review

Fallacies of Fallacies

Article excerpt

INTRODUCTION

One need not read The Fallacies of States' Rights and The Upside-Down Constitution1 in their entirety or with any great attention to perceive the gulf that separates the authors' views on constitutional theory and federalism. Professor Sotirios Barber thinks in terms of constitutional aspirations, derived from the Constitution's capacious Preamble.2 I am more concerned with who can do what to whom under the Constitution's operative provisions, and skeptical of Marxist-Brennanist theorizing that mows down the legal text and structure.3 Professor Barber champions a "positive constitutionalism," which holds that "constitution makers establish governments chiefly to do good things for people"4 - in contradistinction to a "negative constitutionalism" of rights and institutions, which seeks to restrain government and which is the province of nihilists, nitwits, and intellectual thugs.5 I believe that empowering and limiting purposes and mechanisms go hand-in-hand in a limited Constitution; that Madison et al. sort of got that; and that a constitutional theory that starts with an exuberant commitment "to do good things for people" - qualified by a grudging concession to some negative "functions"6 - is better suited to an autocracy than to America. Professor Barber envisions a Constitution of "leaders" and a "benighted mass" of "followers";7 I suspect that Americans are more comfortable in thinking of themselves as citizens and of politicians as their agents, and that the Constitution enshrines that model. Professor Barber hankers for (though he despairs of) a politics of "secular public reasonableness";8 to my mind, what he advocates is the dictatorship of relativism.9 I am concerned about a politics that, in "do[ing] good things for people," has left the nation's finances in ruins and future generations deep in debt. The Upside-Down Constitution engages the federalism aspects of that problem;10 Fallacies ignores it.

Short of someone rising from the dead, there is no bridging this chasm. The more limited subject of this Essay is the constitutional structure of American federalism and, more briefly, its present state and utility. While that is also the ostensible ground of Fallacies, the book operates at too high a level of abstraction to have much useful to say on those subjects. What little it does have to say is mostly wrong.

I. OF MARSHALL AND M'CULLOCH

Professor Barber distinguishes three forms of federalism. He makes a first- order distinction between "states' rights or dual federalism," which insists on separate, judicially cognizable federal and state "spheres"; and "nationalist" federalism, which rejects the two-spheres model.11 He then makes a second- order distinction between two forms of nationalist federalism: "Marshallian federalism," which Professor Barber invents and propounds; and "process federalism," which he rejects.12 The two hang together in their rejection of any enforceable states' right to protect enclaves of power.13 They differ in that Marshallian federalism propounds substantive national ends, whereas process federalism seeks to deny them.14 The foundational decision for Professor Barber's Marshallian federalism is M'Culloch v. Maryland15 - or rather, a highly idiosyncratic version of that celebrated opinion.

In Professor Barber's view, M'Culloch stands for a "positive," "ends- oriented," instrumentalist constitutionalism, as distinct from a "negative" "constitutionalism of institutions and rights."16 "Let the end be legitimate," Chief Justice Marshall famously wrote, "let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."17 The ends, Professor Barber says, we get from the Constitution's Preamble, at least as a first approximation.18 They are limited in number but very broad: the general welfare, justice, and the common defense. …

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