Taking States (and Metaphysics) Seriously
Levinson, Sanford, Michigan Law Review
TAKING STATES (AND METAPHYSICS) SERIOUSLY
The Fallacies of States' Rights. By Sotirios A. Barber. Cambridge and London: Harvard University Press. 2013. Pp. 209. $39.95.
Sotirios A. Barber1 has written many incisive and important books,2 in addition to coediting an especially interesting casebook on constitutional law and interpretation.3 He is also a political theorist. An important part of his overall approach to constitutional theory is his philosophical commit- ment to "moral realism." He believes in the metaphysical reality of moral and political truths, the most important of which, for any constitutional theorist, involve the meanings of justice and the common good. He not only believes in the ontological reality of such truths-that is, that these truths are more than mere human conventions or social constructions-but he also believes that humans have the epistemological equipment to discern and act on them, including designing political institutions that will instantiate them and make possible their progressive realization in what we often call the "real world." All of these aspects of his scholarship are brought to bear in his most recent work, The Fallacies of States' Rights.
One can summarize Barber's book quite briefly. As the title suggests, it is nothing less than a fallacy to argue that states within the United States have rights protected against congressional override. But the word "fallacies" also has the overtone of philosophical-especially logical-argument. Circu- lar reasoning, for example, is fallacious not because of empirical errors but because the conclusions are built into the primary assumptions. Similarly, Barber wants to demonstrate that the proposition that states have rights rests on a mistake in reasoning that is demonstrable in just the same way as other fallacies in reasoning. Most of this Review will, of course, focus on this as- pect of Barber's argument. I begin, though, by pointing to one potential problem that he does not address, which is the presence in the text of the Constitution of unequivocal assignments of rights to the states.
I. Barber and the "Constitution of Settlement"
It is simply implausible-perhaps even incorrect-to argue that the Constitution, correctly understood, supports no entrenched states' rights that might hinder the common good. This is the case even if one agrees, as I do, with Barber's general critique of federalism and his concomitant support of an empowered national government. It is telling that there is a remarkable lack of explicit assignment of reserved powers to the American states, whatever the cryptic language of the Tenth Amendment might otherwise suggest.4 One might easily contrast this with several federal systems around the world that specify the exclusive authority of subnational units to regulate such important matters as language, religion, education, or the disposal of certain natural resources, to name only four hot-button issues likely to pro- voke conflict between center and periphery.5
Within the United States, though, it is important to realize that almost all ostensible protections of state autonomy running through contemporary Supreme Court opinions are based on distinctly unenumerated "penumbras and emanations"6 from the Constitution, not to mention the "high politics" of particular judges who have their own understandings of how the Ameri- can political system should operate.7 That they believe federalism to be more worthwhile and deserving of protection than Barber does is not evidence of the proposition that Barber is wrong; rather, it is only evidence that impor- tant contemporary political and judicial elites (largely but not exclusively conservative) have a different vision. The point is that the text of the Consti- tution is rarely truly useful in understanding judicial opinions; indeed, if anything, close attention to constitutional text can only confuse the reader.8 Still, this does not establish the proposition that there are no states' rights that are clearly spelled out in the text of the Constitution. …