Taking States (and Metaphysics) Seriously

Sotirios A. Barber has written many incisive and important books, in addition to coediting an especially interesting casebook on constitutional law and interpretation. 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.