An Overview

By Gerken, Heather K. | The Yale Law Journal, April 2014 | Go to article overview

An Overview

Gerken, Heather K., The Yale Law Journal

Federalism has had a resurgence of late, with symposia organized, (1) stories written, (2) and new scholarly paths charted. Now is an appropriate moment to assess where the new "new federalism" (3) is heading. This Feature thus brings together five scholars who have made unique contributions to the field in order to offer a snapshot of the current debate.

Taken together, these essays suggest that federalism is the new nationalism. Shorn of the traditional trappings of sovereignty and separate spheres, detached from the notion that state autonomy matters above all else, attentive to the rise of national power and the importance of national politics, this work offers a descriptive and normative account that is deeply nationalist in character.

Nationalists, of course, have long been skeptical of conventional accounts of federalism. But, as the work here shows, those accounts no longer describe vast swaths of "Our Federalism." It's time for the nationalists, who have often rebuked federalism's proponents for being behind the times, to catch up to today s realities. That's especially true now that scholars have developed new justifications for devolution that pivot off of nationalist concerns. While the contributors to this Feature have different views, each believes that a committed nationalist ought to believe in federalism, just as a committed proponent of federalism ought to care about the states' evolving role in our national system.

The work of the contributors offers a lens for identifying the basic tenets of what I call the "nationalist school of federalism." In this introduction, I've organized my observations 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) "rules of engagement" (4) 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. While I focus on the work done by the contributors to this Feature, I also acknowledge the scholars who have inspired or helped develop this new account, even if they may not count themselves as members of the nationalist school. (5)

1. federalism's nationalist ends

Any account of federalism must begin with the values it serves. The question at the core of this Feature is whether federalism can serve nationalist ends. Alison LaCroix poses the question most provocatively: If we accept Holmes's expansive vision of national power, is it nonetheless "possible to conceive of the states as having significance?" (6)

Supporters of conventional federalism have a ready list of reasons why states matter. Federalism promotes choice, fosters competition, facilitates participation, enables experimentation, and wards off a national Leviathan. The conventional account insists that sovereign or at least autonomous states--states with "meaningful things to do," to use Ernie Young's pragmatic definition (7)--are necessary to achieve these important goals.

The nationalist school has put a different set of reasons for valuing states on the board. Most take the perspective of the detached social engineer, focusing on the institutional features needed for a vast and diverse nation to thrive. But some take the vantage point of a self-interested national actor. What unites these new accounts of federalism's ends is that they are also nationalist ends. (8)

You might think that a "nationalist school of federalism" is a contradiction in terms. It isn't. In order to see why, a bit of a definitional work is in order.

Scholars often write as if the key difference between the two camps is that nationalists favor lodging most decisions with the federal government, whereas federalism's supporters favor devolution to the states. …

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