Response to Heather Gerken's 'Federalism and Nationalism: Time for a Détente?'

Abstract

This essay is a transcription of remarks made at the 2014 Childress Lecture at St. Louis University Law School, honoring Heather Gerken’s federalism scholarship. The essay, invited by Professor Gerken, responds to her lead symposium piece on the synthesis of federalism and nationalism ideals in federalism theory. It reflects on her contributions to the discourse as both a scholar and a mentor, praising her work as a leading component of an emerging consensus among federalism theorists that the old frameworks for thinking about interjurisdictional governance require revisiting. This new literature recognizes that the federal system depends as much on interjurisdictional integration as it does on jurisdictional separation, and refocuses attention on the relationship between the means and the ends of good multilevel governance.

Gerken credits environmental federalism scholars, in particular, as early movers in this direction, and so the essay explores the significance of environmental law’s position at the vanguard of this more dynamic understanding of federalism. Taking up her invitation to consider “what Con Law can learn from Environmental Law,” the essay discusses the increasing importance of applied federalism scholarship and the special features of environmental governance that make it vulnerable to federalism controversy.

The essay then shares several important points in support of Gerken’s call for détente, emphasizing the significance of state-federal integration and the defining importance of federalism’s ends in relation to its means. Finally, it closes with points of constructive disagreement, addressing the relationship between federalism process and principle, the meaning of federalism and nationalism, and the nature of state-federal relations. In particular, it suggests that Gerken expand her conception of the principal-agent metaphor for state-federal relations to include not only those instances in which the states act as agents of the national principal, but also those in which the federal government acts as an agent of the state principals.

Keywords: Heather Gerken, Federalism, Nationalism, Dynamic Federalism, Environmental Federalism, Applied Federalism, Means-Ends, Process and Principle, Principal-Agent