an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I recently had the honor to deliver the Childress Lecture at St. Louis University Law School. The lecture argues that it’s time for a détente between the opposing camps in federalism debates. Its core claim is that the emergence of what I’ve called the “nationalist school of federalism” has unsettled traditional federalism debates and created the conditions for a détente. That’s because the work of these “new nationalists” destabilizes the fundamental premise undergirding both camps—that decentralization always furthers state-centered aims, and that centralization always furthers nationalist ones.
The new nationalists have shaken things up in a second way—one that goes to ends, not means. Their work has called into question the empirical and normative foundations of the federalism/nationalism divide by introducing a quite different picture of federal-state relations into the mix. This account relies not on sovereignty or autonomy, but on a competing vision of state power—a notion that one side doesn’t associate with federalism and that mostly irks the other. It is a picture of “Our Federalism” in which the states play a vibrant role even as the federal government regulates as it sees fit and in which the real obstacle to uniformity is politics, not law. It is a picture, interestingly enough, that holds true even in areas that lack the formal markers of cooperative federal regimes, even in areas thought to belong almost exclusively to the states or the federal government. That is a reality that neither camp anticipated and that some continue to resist. But it is also a state of affairs that should offer a reasonably satisfying common ground for both camps or, at least, a new terrain on which to do battle.
Let me focus on the first point today. Federalisms’ stalwarts and traditional nationalists disagree on just about everything. But there is one common assumption that undergirds both camps, an assumption that both sides treat as if it were nondebatable: the link between means and ends in federalism debates. For federalism stalwarts, the equation is simple: devolve power to the states, and you serve state-centered ends. For traditional nationalists, the argument is just as straightforward: centralize, and you serve nationalist ends.
Enter the new nationalists, who insist that devolution can further nationalist aims. As I’ve written elsewhere, the new nationalists have shown that devolution can “improv[e] national politics, strengthen a national polity, better national policymaking, entrench national norms, consolidat[e] national policies, and increas[e] national power.”
You can see why the new nationalists’ work fits so uneasily with traditional federalism debates. It gives the lie to the easy equation of decentralization with state-centered values and centralization with nationalist ones.
To be sure, the new nationalists don’t claim that decentralization always serves nationalist values. That would be a foolish claim. But the new nationalists have shown that it is just as foolish to think that decentralization always serve state-centered values. If devolution can further both state-centered ends and traditional nationalist ends, then there shouldn’t be camps. The question to centralize is always a complicated, context-sensitive question even if you care only about national culture, national politics, and national citizenship. So, too, the simple equation of federalism’s stalwarts—devolution furthers state-centered ends—isn’t as linear as we have thought. The camps, in other words, have pitched their tents on shaky ground.
But still, you might be thinking: maybe we have to be more careful about causal claims, maybe we should expand our list of the democratic ends states serve, maybe it’s a mistake to think that decentralization serves only state-centered ends. But we are playing the long game here. We are worried about averages. You might still think that, on average, devolution serves states and centralization serves the national government. We will still divide into camps, then, because our ends will forever divide us. Tomorrow, I’ll talk about why the new nationalists have also reframed federalism debates over ends. Posted
by Heather K. Gerken [link]