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«SAINT LOUIS UNIVERSITY SCHOOL OF LAW FEDERALISM AND NATIONALISM: TIME FOR A DÉTENTE? HEATHER K. GERKEN* INTRODUCTION There has been a “merry ...»

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SAINT LOUIS UNIVERSITY SCHOOL OF LAW

FEDERALISM AND NATIONALISM: TIME FOR A DÉTENTE?

HEATHER K. GERKEN*

INTRODUCTION

There has been a “merry war”1—or maybe just a war—between

federalism’s stalwarts and traditional nationalists. I came to the debate late in

the game, when it had reached that point that Robert McCloskey so vividly described in constitutional law—when everyone seems like aging boxing club members who have fought so long that they know each other’s moves and fight mostly to tire the other out.2 I want to propose a détente between those opposing camps. I actually want to propose dispensing with these camps altogether, but I’d be happy with enough of a suspension of hostilities to move federalism debates forward.3 I’ll explain why the time is right for a détente, the benefits to be gained from it, and the concessions each side needs to make. My core claim is that the emergence of what I’ve called the “nationalist school of federalism”4 has unsettled traditional federalism debates and created the conditions for a détente to occur. For ease of exposition, I’ll refer to the nationalist school as the “new nationalists,” just so you can distinguish them from the “traditional nationalists” when I’m describing the different schools of thought.

* J. Skelly Wright Professor of Law, Yale Law School. What follows is a lightly edited, lightly footnoted version of the Childress Lecture, which I delivered at St. Louis University School of Law. I am grateful to the faculty and the dean for inviting me to take part in such a wonderful lecture. It was a treat to have the opportunity to present this work to scholars I deeply admire. I was especially grateful to have Joel Goldstein as my host, as he puts the words gentleman and scholar in the phrase “gentleman scholar.” My thanks to a set of excellent (and speedy) readers, including Bruce Ackerman, Jessica Bulman-Pozen, Bridget Fahey, Dick Fallon, Abbe Gluck, Joel Goldstein, Alex Hemmer, Sundeep Iyer, Rebecca Lee, Daryl Levinson, David Louk, Erica Newland, and Daniel Rauch. Great research assistance was provided by Zach Arnold, Marguerite Colson, Sundeep Iyer, Noah Lindell, Erica Newland, Rosa Po, Daniel Rauch, Zayn Siddique, and David Simins.

1. WILLIAM SHAKESPEARE, MUCH ADO ABOUT NOTHING act 1, sc. 1.

2. ROBERT G. MCCLOSKEY, THE MODERN SUPREME COURT 291 (1972).

3. I use the term “détente” deliberately. A détente implies a temporary and uneasy truce rather than a demand that each side abandon its principles.

4. Heather K. Gerken, Federalism as the New Nationalism: An Overview, 123 YALE L.J.

1889, 1890 (2013).

SAINT LOUIS UNIVERSITY SCHOOL OF LAW

998 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 59:997 I recognize the hubris in this. It’s cheeky enough to announce a new school of federalism, let alone to insist that it should reorient a long-standing debate.

But although this work has been building steadily for a long while, it still occupies an uneasy place in the debate. Thinking about why that is so has led to this Article. Be warned, however. It is intended as a provocation.

Here’s the elevator pitch. The emergence of the nationalist school of federalism—the rise of the new nationalists—has unsettled traditional federalism debates for two reasons. The first is analytic. The new nationalists’ work destabilizes the fundamental premise undergirding both camps—that decentralization furthers state-centered aims, and that centralization 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. The new nationalist account of federal-state relations is one in which form does not always follow function and federal power does not always track the exercise of federal jurisdiction, one in which politics and practice are important as rules and regulations. 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. That is a reality that neither camp anticipated5 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.

If you accept the new nationalists’ analytic and empirical claims—even if you believe that they hold at least some of the time—then the time is ripe for a détente. On the analytic side, the weapons the two camps have been wielding are too crude for their purposes. And on the empirical side, if we care about perfecting the democracy we actually have, many of the field’s rumpuses are either beside the point or incorrectly framed. In the long run, the emergence of the new nationalists should reorient rivalries inside the federalism tent and help members of both camps fashion a “new process federalism” that is better suited for the current debates. There are fights to be had, to be sure. They just aren’t the ones we’ve been having.





There’s also a leitmotif to my Article. It’s a story about the limits of law, or maybe the limits of law professors. The claims of the new nationalists are unsettling for disciplinary reasons as well as substantive ones. If anything, this

5. Though some did, including one of the contributors to this symposium, Ed Rubin. See Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 ULCA L. REV. 903 (1994).

SAINT LOUIS UNIVERSITY SCHOOL OF LAW

–  –  –

work is designed to make law professors crazy—or crazier than they already are—given their penchant for formal categories, conceptual tidiness, and clear jurisdictional lines. The heavily descriptive work of the new nationalists shows a relationship that is negotiated, iterative, interactive, hard to categorize, and still harder to predict. It is premised on practice as well as presumptions;

processes as well as principles; routines as well as regulations. That means that much of what is going on cannot be made legible with traditional legal materials. It’s worse than that, actually, because once you accurately capture what’s going on, that analysis may not lend itself to legal pronouncements of any sort. The new nationalists have used a lot of terms to describe federal-state relations—polyphonic, iterative, negotiated, interactive, uncooperative—but the most honest term is “messy.” And while we, good law professors all, have offered our prescriptive arguments about what must be done, at the end of the day much of “Our Federalism” requires little more than muddling through.

I. THE NEW NATIONALISTS AND THE RELATIONSHIP BETWEEN

MEANS AND ENDS

If you haven’t been reading the federalism literature of late, you might be asking yourself what the “nationalist school of federalism” is in the first place.

Don’t nationalists believe in centralization and federalism’s stalwarts believe in devolution? How, then, can a nationalist believe in giving power to the states?

If you’re thinking that a nationalist account of federalism is an oxymoron, don’t worry. These common-sense questions reveal the core assumption that undergirds both camps and tee up my first analytic point.6 Each side has made the same assumption about means and ends. They’ve assumed that devolution promotes state-centered ends and centralization promotes nationalist ones.

Indeed, each side has fought passionately for devolution or centralization based on its faith in that simple hypothesis. The emergence of the nationalist school of federalism, however, has unsettled this long-standing premise of the nationalism/federalism divide.

A. The Core Assumption Undergirding Federalism Debates The easy challenge, I suppose, would be to insist that there shouldn’t be any camps at all in federalism debates. After all, both devolution and centralization are properly understood as means, not ends. The question is what end do they serve? And the most plausible answer is that devolution and

–  –  –

centralization are means to the same end: a well-functioning democracy,7 perhaps even a well-functioning union.8 So why camps? It’s not just that the end—a well-functioning democracy— is a complicated and delicate instrument. It’s also that there are many, many sensible justifications for moving decisions up or down the governance hierarchy. If we were just quibbling about means, views on devolution ought to be highly contextual and fall along a broad continuum. If we were just quibbling about means, these questions could only be worked out on a case-bycase basis, and disagreements would concern matters of degree. We’d see the kinds of debates among law professors that we see among functionally oriented political scientists and economists, who dutifully work through arguments about externalities and economies of scale for every issue. What we see instead are clearly defined intellectual camps with firm commitments to a single institutional design strategy across policymaking spheres.

Part of the problem is that we aging boxing club members tend to move so quickly to the heart of our disagreement—how best to protect our democracy— that means sometimes bleed into ends during the discussion. Federalism stalwarts, for instance, often write as if the whole point of the doctrine is to protect state power, full stop, rather than to protect the right forms of state power in the right situations. They write as if we ought to have a one-way ratchet in favor of state power even if we all know they don’t really believe that.9 The traditional nationalists are just as guilty on this front. They are all but allergic to anything having to do with state and local power and often deploy a one-way ratchet of their own even if they, too, would acknowledge a role for the local when pressed.

7. I take that premise to be implicit in federalism doctrine itself. If you carefully examine our working list of the basic purposes states are thought to serve, it is woefully incomplete but plainly depicts states in service of a well-functioning democracy. Indeed, you might well think that federalism has always served nationalist goals. The laboratories of democracy, for instance, plainly benefit national ends. So, too, the notion that states facilitate choice or serve as bulwarks of liberty is attractive to anyone aiming for a well-functioning national democracy.

8. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM

(2010).

9. I got a taste of it this last year when I presented a paper on the political safeguards of horizontal federalism. See Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 MICH. L. REV. 57 (2014). Many readers had trouble processing the idea that politics could safeguard interstate relations. Having consumed a fair amount of federalism scholarship, they took the purpose of the safeguards to be protecting state power (and thus couldn’t see how safeguards could work at the horizontal level). A moment’s thought makes clear that this position is muddleheaded, not to mention flatly inconsistent with the position of the leading scholars of process federalism, from Wechsler to Kramer to Young. Id. at 67–68.

Nonetheless, the idea of a one-way ratchet is sufficiently dominant within the discourse that people typically equate favoring federalism with favoring state power.

SAINT LOUIS UNIVERSITY SCHOOL OF LAW

2015] FEDERALISM AND NATIONALISM: TIME FOR A DÉTENTE 1001 At this point, every law professor is putting together the best case for clearly delineated camps and one-way ratchets. For those unfamiliar with academic habits, the go-to scholarly move is to insist on the three c’s: context, complexity, and contingency. But academics are anything if not a fourth “c”— contrarians.

I should emphasize to the contrarians reading this Article that I’m not aiming for the easy target. I know there is a much more serious argument for camps than the crude means-bleeding-into-ends definitions of federalism and nationalism. The positions of the two camps are more nuanced and their arguments more serious. Proponents of federalism and nationalism don’t just disagree about means; they disagree about ends—about what kind of democracy we want.

For federalism’s stalwarts, the decentralization equation is straightforward.

Their ideal is a state-centered democracy, one that emphasizes state power, state politics, and state polities. Given that end, they worry that the federalstate balance has tilted too far to the federal side. On this view, a one-way ratchet toward state power—or, at least, a camp—is appropriate because states have lost so much authority over the years that we need to shore them up wherever we can.

The traditional nationalists, of course, subscribe to a different vision of democracy: one that emphasizes national power, national politics, and a national polity. They are also skeptical of state and local power because they associate both with the dreaded “-isms” of these debates (cronyism, parochialism, and, worst of all, racism). That’s why there’s a nationalist camp.

I think that both camps have an outdated conception about the ends of federalism, something I’ll discuss in the second half of this Article. But for now, I want to take on what both camps assume to be the nondebatable part of the analysis: the link between means and ends. 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.



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