Federalism as the New Nationalism: An Overview

30 Pages Posted: 10 Apr 2014

Date Written: April 8, 2014

Abstract

This paper marks the emergence of a nationalist school of federalism. It serves as the introduction to a symposium that brings together the work of five scholars who have made unique contributions to the field. This introduction argues that, taken together, the essays collected in this symposium suggest that federalism is the new nationalism. Shorn of the 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 often pride themselves on taking a clear-eyed view of on-the-ground realities, rebuking federalism’s proponents for not coming to grips with the changes in federal power brought on by the New Deal. But the nationalists are now the ones behind the times, as they have not yet absorbed how much state power has changed in recent years. States now serve demonstrably national ends and, in doing so, maintain their central place in a modern legal landscape.

This papers identifies the basic tenets of the nationalist school. It is organized 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) and “rules of engagement” 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.

Keywords: Federalism, natonalism, nationalist school, cooperative federalism

Suggested Citation

Gerken, Heather, Federalism as the New Nationalism: An Overview (April 8, 2014). Yale Law Journal, Vol. 123, 2014; Yale Law School, Public Law Research Paper No. 500. Available at SSRN: https://ssrn.com/abstract=2422586

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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