Tuesday, April 15, 2014

Federalism as the New Nationalism

Heather K. Gerken

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. 
 Stay tuned.

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