Paul Finkelman’s account of antebellum decisions gets Justice Taney right, but not Justice Marshall, and especially not Justice Story.
In this spirited polemic, Prof. Sotirios Barber defends the American nationalist constitutional tradition, particularly the thought of John Marshall, from the attacks of both states’ rights advocates (who he calls “dual federalists) and process federalists, those who believe national power should be used in expansive ways to protect individual rights without working to establish one specific American society. Barber uses Marshall’s 1819 decision in McCulloch v. Maryland as the starting point for nationalist analysis. Hence, he mentions only briefly the important clashes between nationalists and their opponents during the first three decades of the Early Republic. In explaining the rationale behind what he calls “Marshallian federalism” Barber is at his best. Marshall advocated an “ends-oriented constitutionalism.” (16) He believed that the US government was limited in the sense that the government was confined to seek the ends set forth in the Constitution. Marshall’s “positive understanding” (32) of government power sought to help secure the people’s happiness and to instruct them as to their “true interests.” (19) Marshall defended “implied national powers, liberal construction of national power, and national legislative supremacy.” (52) In the midst of this celebration of expansive power, Barber admits, “Under the right circumstances, any and every area of social life could become subjects of concern to policy makers working for ends like national security and prosperity.” (44) Barber then scales back this claim by insisting that Marshallian federalism includes a “rule against pretexts,” meaning that Congress could not pass laws “whose actual motivating purpose is different from its stated purpose.” (68-69) This would guarantee limited “in the sense of properly motivated” government. Barber clearly identifies the presuppositions of “Marshallian federalism”: “a national community that predates the Constitution,” the responsibility of “the national government… for facilitation or securing” the “community’s controlling values,” and the denial that “individual states can lawfully avoid the burdens of pursuing these values.” (50) Nationalism presupposes a certain kind of American society – a Lockean liberal society (65) – and uses the power of the federal government to enforce it. Barber holds that the ends of Marshall’s nationalism “include national security, national prosperity, equal opportunity, and a secular and rationalist political culture.” (51) He mentions later that current Marshallian federalists should be motivated “by the values of today’s progressive liberals.” (68)
Barber criticizes two competitors to his Marshallian federalism as inadequate for fulfilling the promise of the US Constitution. Process federalism and dual federalism embrace a “constitutionalism of institutions and rights” instead of Marshall’s “constitutionalism of ends.” (21) Both, according to Barber, rely on skepticism about the ends of good government. Process federalists desire to protect individual rights through national political action irrespective of ends. (15) Barber believes the skepticism about proper ends makes process federalism indefensible. So too with dual federalism. Barber attacks the five defenses of dual federalism offered by Sandra Day O’Conner in Gregory v. Ashcroft (1991). O’Conner argued decentralization worked better for a “heterogeneous society,” increased democratic participation, allowed for experimentation in state government, allowed states to develop better policies through competition for citizens, and checked “abusive power.” (94-95) Barber attempts to refute all five. He gives many arguments, some of them complex, but essentially his complaint is that defending dual federalism is protecting a means rather than an end. Barber’s nationalism, by committing itself to ends, works best. He contends that “the ambiguities of the nation’s constitutional text and history make responsible choice” among constitutional theories “depend on an argument – a showing that one theory is best for the country.” (172) By rejecting outright the traditional appeal to history because of its supposed ambiguities, Barber forces process federalists and dual federalists to make national arguments about ends, bringing the argument into the realm of philosophy and political science. (120) Thus Barber rejects the approach of his nationalist heroes Marshall and Abraham Lincoln who appealed to history for their nationalist views of the Union. (143)
Barber fails to appreciate fully important justifications that supporters of states’ rights in the Early Republic used to defend their position. Historian Douglas Bradburn remarked in his recent book on American citizenship, “Supporters of the decentralized nature of American nationhood considered the arrangement a fulfillment of the promises of the Revolution of ’76 – as the best protection of the natural rights of man, the purpose of all government.” “And anyone,” continues Bradburn, “who called for a strong national state or encouraged a national standard for American citizenship dissented from the common view.” That would include Barber’s champion, John Marshall. Many advocates of states’ rights argued that the United States had divided power wisely in order to prevent consolidated power. A strong national center, left unchecked by a strict division of powers, could sometimes do good things, but most often, given the flawed nature of man, could do even greater evil. Thus states’ rights was an institutional arrangement to protect liberty. Citing Madison in Federalist 40 and 45, Barber claims that it is irrational for anyone to defend an institutional arrangement of government against doing what is good. (3-4, 7, 21) But many people working in constitutional systems do just this. Take James Madison’s veto of the Bonus Bill, which funded internal improvements, in 1817:
“I am not unaware of the great importance of roads and canals and the improved
navigation of water courses, and that a power in the national legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition between the general and the state governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it….”
Madison’s view was not uncommon. In fact many American republicans believed that only a virtuous citizenry, people willing to sacrifice for a greater good, would be able to preserve liberty and prevent the destructive consolidation of power.
In addition, Barber does not seem to understand the view of union in the thought of early states’ rights thinkers. He mentions several times that states’ righters will lose any debate in which they enter on a national scale because “the practice of exchanging reasons assumes what states’ righters implicitly deny: that Americans are united in a common good or in the quest for a common good.” (17) Barber seems to think that the states’ rights school believed that Americans owed all of their allegiance to the states. For example, he castigates John C. Calhoun for serving as vice-president, secretary of war, secretary of state, and as a US Congressman. Calhoun’s public service “justify doubt that Calhoun saw himself as a Carolinian only, instead of a Caroline-American.” (12) This is an odd point and presumes that states’ righters were somehow unpatriotic, a common nationalist slur, instead of those who fought in the American Revolution and built republican governments throughout the United States. Barber correctly points out that Calhoun (and other states’ righters) possessed a conception of liberty that was national in scope. In other words, Calhoun expected that all Americans must accept his view of liberty in order for it to work. (This fact would undermine Barber’s claim that dual federalism is a “constitutionalism of institutions and rights” rather than a “constitutionalism of ends.”) The states’ rights school did not see itself as separate from the union. In fact, the theory of states’ rights presumed a union that divided power between a general government and component governments. The question was how to balance these powers. For states’ righters the Union was a means to preserve liberty, the goal of republican governments, not an end in itself.
Although nationalists like Barber view calls for states’ rights as “antiliberal,” the early advocates of states’ rights and corollary ideas such as nullification viewed themselves as fulfilling just and liberal ends. (51, 146-7, 192) Three events from the Early Republic question his portrayal. Take the Virginia and Kentucky Resolutions. Jefferson and Madison, facing a federal government dominated by Federalists in all three branches, used the ideas of nullification and interposition to protect politicians and journalists from being arrested for criticizing or ridiculing the federal government. The Federalists possessed a legal defense of the Sedition Act, but it certainly seemed to fail a common sense reading of the First Amendment. Liberals throughout the eighteenth and nineteenth centuries defended freedom of speech as a fundamental political right. Secondly, the nullification controversy in South Carolina concerned another pet liberal idea of the nineteenth century, free trade. The nationalists of the early 1830s tended to support the “American System” of Henry Clay of which a protective tariff was part. The nationalists were thus on the side of neo-mercantilism and economic protectionism, a kind of “crony capitalism” and a throwback to the European imperial policies of the colonial world. Certainly nullifiers were also concerned about the issue of slavery, but the tariff as an economic issue concerned the debate between freed trade and mercantilism. The nullifiers took the classical liberal side. Thirdly, the case of Wisconsin’s approach in the 1850s to the Fugitive Slave law can hardly be described as antiliberal or racist. Refusing to turn over human beings who had escaped the horrors of enslavement, Wisconsin nullified the Fugitive Slave Act in 1859. Attachment to a states’ rights interpretation of the Constitution knew no regional home as scholars have increasingly demonstrated. Northern and southern politicians invoked states’ rights, often when it suited their interests and sometimes on matters of principle. Barber’s failure to discuss adequately the history of states’ rights in the Early Republic is the major weakness of the book.
Barber has written a helpful book to reveal clearly the rationale of nationalism. While he condemns the originalism of the states’ rights school (45-46), he relies on his own originalism, a commitment to what he calls “secular public reasonableness,” as the unalterable, “unamendable” foundation of the American constitutional system. (184) He defines it, quoting Federalist 1, as “the disposition to establish a maintain ‘government from reflection and choice.’” (184) But it is much more than that. Barber believes that the American Constitution was the triumph of secularism and bourgeois liberalism. It must be defended against all threats, particularly from the “Religious Right,” those who place “blind” faith in “market forces,” “homophobia masked as tradition, and dogmatism of all varieties” (except, of course, the dogmas of progressive liberalism). (192) Barber believes that a revival of states’ rights constitutionalism will doom the Republic:
“States’ rights federalism in our time will not mean what it meant in the nineteenth century. Because the states cannot hope to govern business corporations gone global on the shoulders of modern technology, states’ rights in our time will achieve what the original states’ righters feared most: rule by a monied elite. This monied power will become a government unto itself whose logic precludes the idea of social justice and makes government an agent of those who were lucky enough to get there first.” (208)
Barber’s concern is a good one. But ironically, it was the nationalism he celebrates that allowed for such a situation to transpire. The fact that nationalists have failed to control the powerful institutions they helped to create and legally protect means that the old states’ rights warnings against all consolidated power were prescient.
 Douglas Bradburn, The Citizenship Revolution: Politics and the Creation of the American Union, 1774-1804. (Charlottesville: University of Virginia Press, 2009), 2.
 The speech is reprinted in: TheAnnals of America, volume 4 (Chicago: Encyclopedia Britannica, 1968), 463.
 Many works have documented the points I make in this paragraph. See the following three for examples: Kevin Gutzman, Virginia’s American Revolution (Lanham, Maryland: Lexington Books, 2007). John F. Devanny, Jr., “A Loathing of Public Debt, Taxes, and Excises: The Political Economy of John Randolph of Roanoke,” Virginia Magazine of History and Biography 109 (2001): 387-416. Thomas Woods, Jr., Nullification (Washington, DC: Regnery, 2010), 59-86.