THE FALLACIES OF STATES' RIGHTS. By Sotirios A. Barber. Cambridge and London: Harvard University Press. 2013. Pp. 209. $39.95.
Sotirios A. Barber (1) 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 commitment 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. Circular 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 aspect 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.
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 provoke 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 American 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 important contemporary political and judicial elites (largely but not exclusively conservative) have a different vision. The point is that the text of the Constitution 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.
Consider the likely response to an argument that one way to begin dismantling the normatively indefensible allocation of voting power in the Senate (9)--by which, for example, Wyoming has the same weight as California, which has almost seventy times its population (10)--would be to combine a number of smaller states into larger ones. Thus one might create a new state out of the two Dakotas, Wyoming, and Nebraska; other candidates for amalgamation might well be Maine, Vermont, and New Hampshire. Immense population disparities would still remain--this new "Grand Prairie" state would have approximately 4 million people, while "Upper New England" would only have around 3.3 million. (11) These are still pittances compared with California's population of approximately 38 million people. (12) But at least the disproportion is well under that between Virginia and Delaware in 1790 (about 13 to l), (13) which we might take as establishing the outer limit for disproportionate representation in the Senate. (We will obviously never know what the Framers might have thought about a 65-to-l population disparity, although we can be confident that Madison and other opponents of the Senate would have become ever more apoplectic.) In India, there would be no problem with such consolidation, for Article 3 of that country's constitution explicitly provides that
Parliament may by law--
(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State .... (14)
However meritorious such proposals might be in the United States, there is a fatal problem with relying only on a congressional statute to achieve them. Unfortunately, Article IV, Section 3 of the U.S. Constitution provides that "no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress." (15) It is, I presume, impossible to imagine that the Wyoming or Vermont legislatures, whatever their partisan differences might be, would consent to their amalgamation into a brand new state and the concomitant loss of political power within the Senate. Indeed, one can imagine that such a change might feed the nascent secessionist movement in Vermont! (16) And, of course, Article V grants each state the equivalent of a death-ray veto over any proposal to more equitably apportion votes in the Senate. (17) One might well believe that these proposals would be conducive to achieving a truly "more perfect Union," but I strongly suspect that such a defense would be unpersuasive, with regard to their constitutionality, to almost all lawyers and judges. Defending these proposals would require dismissing the power of the text.
In his book, Barber is really addressing what I have taken to calling the Constitution of Conversation," by which I mean those parts of the Constitution that are sufficiently indeterminate to be the subject of interpretive debate and litigation. (18) I contrast this concept with "the Constitution of Settlement," or those parts of the Constitution (like Article IV, Section 3; Article V; or the "Inauguration Day Clause" of the Twentieth Amendment) that present no serious questions of interpretation, however much they might (and should) generate debates about wisdom. (19) Although he teaches in the political science department at Notre Dame, Barber reflects the professional pathology of law professors in his basically exclusive interest in the Constitution of Conversation. Fortunately, his book is a valuable contribution to that conversation, even if it does not address the Constitution of Settlement. So, once we recognize the status of the book as taking place within the Constitution of Conversation and the concomitant, seemingly endless debates about the best way to interpret the Constitution, the question turns to Barber's particular take on such matters.
BARBER AND THE "CONSTITUTION OF CONVERSATION"
The Fallacies of States' Rights can be read as part of an ongoing debate about how best to interpret one particular constitution, that of the United States. Barber has not written a primer for constitutional designers around the world who might be wrestling with the issue of whether to adopt a federal system that, by definition, accords subnational entities constitutionally guaranteed autonomy that is protected against negation by the central government. (20) Nor does he seem interested in how other national constitutions--those of Germany or India, to take two examples approach federalism as a political and constitutional reality in their countries. Finally, Barber exhibits no interest in the political science literature that considers the prevalence of various forms of constitutional federalism in many other countries or that explains as an empirical matter the adoption of the U.S. Constitution with its own features involving states, including the egregious allocation of power in the Senate. (21) Instead, this book is devoted exclusively to understanding our national Constitution as an interpretive enterprise.
The Centrality of the Preamble
For Barber, a central reality of the Constitution is its announcement in its Preamble of the purpose of the entire enterprise: it is to form a "more perfect Union," which will be defined by its ability to promote "the common defence," "the general Welfare," and "the Blessings of Liberty," not to mention the establishment of "Justice." (22) What is crucial for Barber is not only the importance of these substantive commitments but also that "with the possible exception of 'Union,' the Preamble mentions no...