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1. Defending Dual Federalism: A Self-Defeating Act
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3 1 DEFENDING DUAL FEDERALISM: A SELF-DEFEATING ACT SOTIRIOS A. BARBER Dual federalism is a doctrine of American constitutional law. Defending dual federalism is a self-defeating act because of what dual federalism is and what it means to defend it. Dual federalism is states’ rights federalism. It holds that when national authorities exercise their constitutional powers they must respect the reserved powers of the states. Dual federalism is to be distinguished from national federalism, which comes in two forms, Marshallian federalism and process federalism. I concentrate on Marshallian federalism here, though I will conclude with a comment on process federalism. Marshallian federalism holds that when the nation’s government is pursuing authorized constitutional ends it may freely disregard the reserved powers of the states. John Marshall defended this position in his best reasoned opinion, McCulloch v. Maryland (1819).1 Marshall’s federalism seems to be favored by the Supremacy Clause of Article VI, which provides that the Constitution and national laws in pursuance of the Constitution shall be the supreme law of the land, anything in the constitutions or laws of the states to the contrary notwithstanding. We may not have to give the Supremacy Clause a nationalist reading, however. The Supremacy Clause seems to presuppose that a national law can be constitutional even if it conflicts with a state law, but maybe it means 4 Sotirios A. Barber that a national law that conflicts with a state law is presumptively unconstitutional for just that reason. This reformulated Supremacy Clause would provide that national laws can trump state laws only when achieving national ends (narrowly conceived) would be unlikely otherwise.2 Such a clause would border on the unworkable , of course, for any conflict between state policies and the narrowest conception of national power can provoke an arguable states’ rights claim, at least in domestic policy. But I ignore this difficulty to clear the way for my principal contention: Should there be a dual federalist as well as a national reading of the Supremacy Clause—or the Tenth Amendment, or the enumeration of powers, or the breadth of national powers, or the Framers’ intentions, or the formation of the Union, or the nature of liberty, or any other matter material to the federalism debate, including the nature of the Constitution as a whole—if there is an interpretive choice of any description, dual federalism will (or should) lose the debate. Marshall saw the Constitution chiefly as establishing, structuring , and empowering an instrument for pursuing public goods like national security and prosperity.3 The Constitution for Marshall was chiefly a charter of positive benefits, not a charter of negative liberties. Dual federalism takes a different view; it sees the Constitution as a collection of restraints on the national government , one kind of restraint being “states’ rights.” Marshall’s was a positive constitutionalism; dual federalism belongs to a tradition of negative constitutionalism. Marshall’s positive constitutionalism makes more sense than negative constitutionalism because establishing a government to pursue good things makes sense while establishing a government mainly to prevent government from doing bad things makes no sense.4 So there’s a case for Marshallian federalism because there’s a case for the positive constitutionalism to which Marshallian federalism belongs. My question here is whether there’s a case for dual federalism. I deny this possibility for a simple reason: an argument for dual federalism would have to occur in a national forum, and the expectations of that forum make it impossible to defend dual federalism. A defense of dual federalism would have to be submitted to a national judge of some sort, like Congress or the Supreme Court.5 It would also have to appeal to a controlling national good, like national prosperity or [3.239.59.193] Project MUSE (2024-03-19 07:39 GMT) Defending Dual Federalism: A Self-Defeating Act 5 democracy or liberty. Yet in principle, dual federalism denies the existence of both a controlling national good and an authoritative national judge.6 That’s why dual federalism is indefensible in a national forum. 1. An Axiom But must dual federalism appeal to a national good of some sort? Might it appeal instead to an axiom of constitutional thought, like “the powers of the [national] government are limited, and . . . its limits are not to be transcended”?7 Appeal to this axiom will fail dual federalism once one realizes that (1) because the national government is limited by norms regarding its ends, structures, and available means...