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Federalism and SubsidiarityNOMOS LV$
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James E. Fleming and Jacob T Levy

Print publication date: 2014

Print ISBN-13: 9781479868858

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9781479868858.001.0001

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PRINTED FROM NYU Press SCHOLARSHIP ONLINE (www.nyu.universitypressscholarship.com). (c) Copyright University of NYU Press Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in NYSO for personal use.date: 31 March 2020

Defending Dual Federalism

Defending Dual Federalism

A Self-Defeating Act

Chapter:
(p.3) 1 Defending Dual Federalism
Source:
Federalism and Subsidiarity
Author(s):

Sotirios A. Barber

Publisher:
NYU Press
DOI:10.18574/nyu/9781479868858.003.0001

This chapter examines whether there is a case for dual federalism. It first considers the main ideas of Marshallian federalism and its defense by John Marshall in his opinion, McCulloch v. Maryland (1819). It then explains how the so-called logic of the forum affects traditional claims for dual federalism and goes on to discuss the issue of state sovereignty and the principle of subsidiarity as well as the dual federalist claim that states' rights exemptions from national power enhance liberty. It contends that defending dual federalism is a self-defeating act because it denies the existence of both a controlling national good, such as national prosperity or democracy, and an authoritative national judge. It argues that a defense of dual federalism would have to occur in a national forum, where it is impossible to defend it in the first place.

Keywords:   dual federalism, Marshallian federalism, John Marshall, logic of the forum, state sovereignty, liberty, subsidiarity, national good, national forum, democracy

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