E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today the Yale Law Journal has published a
Feature marking the emergence of a
nationalist school of federalism.It brings
together the work of five scholars (Abbe Gluck, Jessica Bulman-Pozen, Alison
LaCroix, Cristina Rodriguez, and myself) who have made unique contributions to
the field.Thanks to Jack Balkin, each
of the contributors to the YLJ Feature will offer her take on whether, as the
Forum’s title suggests, “federalism is the new nationalism.”
In my Introduction
to the collection, I argue that the essays collected in the Feature offer a
descriptive and normative account that is deeply nationalist in character.The work is shorn of the trappings of
sovereignty and separate spheres, detached from the notion that state autonomy
matters above all else, and attentive to the rise of national power and the importance
of national politics.It shows that
federalism can be a tool for improving national politics, strengthening a national
polity, bettering national policymaking, entrenching national norms,
consolidating national policies, and increasing national power. State power, then, is a means to achieving a
well-functioning national democracy.
There is a reason that the title of
this Feature is aimed at the nationalists. Nationalists often pride themselves on
taking a clear-eyed view of on-the-ground realities, rebuking federalism’s
proponents for not coming to grips with the changes in federal power brought on
by the New Deal.But the nationalists
are now the ones behind the times, as they have not yet absorbed how much state power has changed in recent years.
States now serve demonstrably national ends and, in doing so, maintain their
central place in a modern legal landscape.
My
Introduction identifies the basic tenets of the nationalist school.It is organized around the five features
needed for any account of federalism: (1) a tally of the ends served by
devolution, (2) an inventory of the governance sites that matter, (3) an
account of what gets the system up and running, (4) a description of how the
national and local interact, and (5) and “rules of engagement” to guide those
interactions.In each instance, the
nationalist school of federalism departs from state-centered accounts of
federalism and pushes toward a nationalist vision of devolution’s virtues.