CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, September 14, 2015

Gerken on Federalism and Nationalism

Gerken heatherHeather Gerken (Yale University - Law School) has posted Federalism and Nationalism: Time for a Détente? (St. Louis University Law Journal, Vol. 59, No. 997, 2015) on SSRN. Here is the abstract:

This paper 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. The new nationalist account 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. 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. In the long run, the emergence of the nationalist school 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.

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