Federalism and Subsidiarity: NOMOS LV

2. Defending Dual Federalism: A Bad Idea, but Not Self-Defeating

22 2 DEFENDING DUAL FEDERALISM: A BAD IDEA, BUT NOT SELF-DEFEATING MICHAEL BLAKE There are many ways to call a position mistaken. The most common is to say that the position shouldn’t be held: the reasons given for that position are inadequate, perhaps, or the consequences of that position are bad. It’s more powerful to say that a position can’t be held: those who defend it are engaging in a performative contradiction, perhaps, or must assert contradictory propositions simultaneously. Sotirios Barber thinks dual federalism can’t be held.1 I think, in contrast, it shouldn’t be held. On my view, dual federalism is unattractive, but its defects are at the level of substantive morality; those who defend it do not contradict themselves— they simply offer a less than attractive vision of the national community .2 Barber’s argument rests upon a particular view of what the function of a national forum must be—and what it means to engage with that forum. If we alter that a bit, and describe the national forum in a manner more harmonious with the views of (inter alia) the Tea Party, we arrive at a view that is merely wrong. Why think that dual federalism is self-defeating? To use it in a national forum—in a federal court, say—is to make a statement about what is best for the nation. What we have done, then, is asserted that there is a national good, and that the forum is the best place for debates about the national good. Once this is done, though, the “logic of the forum” means that we have endorsed Defending Dual Federalism: A Bad Idea, but Not Self-Defeating 23 some form of national federalism—and “dual federalism loses before its argument even begins.”3 To cite these values in this place is to put forward propositions about the nature of the national good, and to accept that the national context is the place for determinations of this good to be undertaken. The act of asserting dual federalism thus contradicts the content of the assertion; the act is a performative contradiction, as self-defeating as the act of saying “I am not speaking.”4 Barber also thinks, of course, that the federal forum in question is the morally right place for this discussion; we should have one forum, with one unified context for discussions of the national agenda. I agree with him on this substantive point. He wants in the present context, however, to emphasize a conceptual point: that those who disagree with national federalism are engaging in the task of giving reasons at the national level, and thereby committing themselves to thinking that the process of giving reasons at the national level is what ought to be done—which is to say, they have endorsed national federalism. This is a powerful argument. If it works, it attributes contradictory positions to the dual federalist: he makes a statement against the national forum within the national forum, thereby simultaneously rejecting and relying upon a single thing. I do not, however , think that this apparent contradiction in action really traps the dual federalist in performative self-contradiction. To see this, distinguish between making a statement about a conversation, and making a statement as part of a conversation. The line between them is not always easy to draw; even the one who says that he doesn’t want to speak is, in asserting this, engaging in speech. But we can readily distinguish between someone who speaks so as to end a conversation and one who speaks within the conversation taken as an ongoing project. I recall, in this context, walking down a street in Toronto and being confronted by a cult member eager to speak to me about his religion. I demurred, saying I was happy enough with my current plans for the day. The cult member seized on this and said—with perfect logic—that if happiness was my goal, why wouldn’t I be willing to discuss with him the circumstances under which true happiness was attained? Perhaps I was deluded in my own ideas and could benefit from the chance to subject them to the fires of interpersonal justification and argument . My response, of course, was to keep walking; I had said my 24 Michael Blake piece at the start and intended my words to end the conversation, not begin it. I...