The proper extent of state political prerogatives vis-à-vis federal power within the American constitutional union has bedeviled politicians, jurists, and commentators throughout the nation's history. With exceptions in the Taney era and in Gilded Age civil rights jurisprudence, the rough trend of American judicial history has seen the Supreme Court more often fulfilling its originally intended superintending function over the states under the Supremacy Clause than endeavoring to protect inviolable zones of state sovereignty from federal encroachments. After the Revolution of '37, the Court signed on to considerable expansions of national legislative and executive power, often at the expense of the states. Accelerated incorporation of the Bill of Rights against the states confirmed a certain judicial disdain for the doctrine of “states' rights.” During the 1980s, however, the conservative revolution in American national politics produced some pivotal judicial appointments that portended change. Thereafter, in a line of cases beginning with New York v. United States (1992), a Court majority under William Renquist's stewardship developed a framework for review favoring the rights of “sovereign” states that marked a new direction in the Court's federalism jurisprudence.

The states' rights revival on the modern Supreme Court, however, has not gone unopposed. Contentious 5–4 decisions have unsettled the Court's federalism cases in this area, as has a growing body of critical academic commentary. Sotirios Barber's recent book marks the latest contribution to the scholarly challenge. The Fallacies of States' Rights aims to refute the principles underlying the Renquist Court's states' rights jurisprudence on historical, textual, and practical-philosophical grounds. The Court's assertion that states' rights or “dual” federalism provides checks on federal power that enhance individual liberty receives sustained criticism from Barber here. Barber convincingly shows that the Constitution does not explicitly delegate to the states any check on federal power beyond participation in the national political and amendatory processes. For its part, the Tenth Amendment confers no power whatsoever. The injustices historically associated with states' rights philosophy, moreover, suggest that in practice it has abridged individual liberty rather than enhanced it.

With this said, Barber concedes that original understandings of the Constitution remain “ambiguous” on states' rights. Nor does the nation's “mixed” historical experience unequivocally disprove the claimed advantages associated with states' rights federalism so much as render them “debatable” (17). Yet for these very reasons, states' rights proponents need an additional argument to support their interpretation of the Constitution. Barber contends that they cannot produce one without devolving into contradiction because, particularly since the Civil War, they cannot extricate themselves from the national constitutional context in which they must assert their claims. To say that states' rights enhance “liberty” or “democracy” commits the speaker to articulating a national standard by which to evaluate such propositions that all Americans might accept, and to permitting a representative of all sides (i.e., a national agent) to apply and enforce that standard. The very supposition of a controlling national standard whose application and enforcement rest with the nation, however, contradicts the premise that each state should have sovereign discretion to conduct its affairs in its own way vis-à-vis the nation that underlies the states' rights position. States' rights thinkers from Jefferson to John C. Calhoun and Ronald Reagan have ensnared themselves in this fallacy (13).

The nation's history, however, bears out alternatives to states' rights federalism. In particular, Barber throws his weight behind a nationalist alternative—here styled “Marshallian federalism”—that he suggests boasts a surer historical pedigree than its states' rights counterpart. Chief Justice Marshall's opinion in McCulloch v. Maryland, Barber contends, sets out Marshallian federalism's basic principles. Barber interprets McCulloch as giving the federal government unlimited means to pursue constitutionally authorized ends and, when it does so, discretion to disregard the states entirely. Like states' rights federalism (but unlike so-called “process federalism”), Marshallian federalism adheres to the core “federalism axiom” because it contemplates a government of limited power (159). Ends and not rights, however, constitute the primary limitation on government under the Marshallian vision, and Barber stresses that this gives the states, like the people themselves, a judicially cognizable “right” against pre-textual assertions of federal power. The ends that the federal government legitimately may pursue under Marshallian federalism include Lockean “bourgeois” liberal ends such as security, the right to enjoy private property, and freedom from sectarian coercion (55). As Marshall viewed it, the federal government's constitutional authority added up to much more than the sum of its enumerated powers. The Constitution, for the Marshallian, contemplates a “specific way of life” predicated on a secular bourgeois value system (12). Barber places significant emphasis on the Preamble for textual support in this regard. Yet, the Constitution's very amendability, Barber believes, renders even broad preambular ends subject to revision, and thereby gestures toward a more fundamental positive commitment underpinning the Constitution. Barber locates that Constitution's deepest commitment in “secular public reasonableness,” which he describes as a public “virtue” dedicated to formulating and justifying good government on the basis of publicly sharable experiential reason rather than divine revelation, without regard to race or gender (181).

This highly readable volume succeeds on many levels. Barber employs a captivating dialectical style of argumentation that confronts and refutes just about every possible objection that a contemporary political scientist or consitutional scholar might have. He writes with originality, insight, and appropriate restraint. If Barber occasionally roams into tangential subject matter, he often supplies cogent summations of the book's core arguments. And although Barber lapses into speculation when he divines that, if accepted, states' rights philosophy will pave the way to a global plutocracy, he does not belabor the point. Possibly, some readers of this journal may find Barber's approach to history impressionistic, and his source base narrow. For the constitutional historian, however, The Fallacies of States' Rights will reward close study as much for the questions it raises as for the answers it offers.