The new liberal “nationalist” case for federalism

April 16

Yale Law School Professor Heather Gerken is one of the leading members of a group of liberal scholars who are beginning to take a more positive view of federalism than most of the American left did over the last century. In this recent post, she summarizes the new “nationalist” rationale for federalism that these writers have advanced, including in a recent Yale Law Journal symposium that she edited:

Today the Yale Law Journal has published a Feature marking the emergence of a nationalist school of federalism….

In my Introduction to the collection, I argue that the essays collected in the Feature offer a descriptive and normative account that is deeply nationalist in character. The work is shorn of the trappings of sovereignty and separate spheres, detached from the notion that state autonomy matters above all else, and attentive to the rise of national power and the importance of national politics. It shows that federalism can be a tool for improving national politics, strengthening a national polity, bettering national policymaking, entrenching national norms, consolidating national policies, and increasing national power. State power, then, is a means to achieving a well-functioning national democracy.

There is a reason that the title of this Feature is aimed at the nationalists. 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.

There are some important areas of agreement between the new liberal defenders of federalism and many conservative and libertarian advocates. We too agree that case for federalism has to be judged on “nationalist” criteria, in the sense that it must be judged by its impact on the people of the nation as a whole, not the interests of state governments as such, or of particular regions. We also agree that allowing greater autonomy for state and local governments often serves important national objectives, such as increasing our ability to accommodate the needs of a diverse population, and promoting policy experimentation. In that sense, to borrow from Thomas Jefferson, we are now all federalists and all nationalists.

But we continue to disagree, on what kind of federalism best serves national ends. As Gerken emphasizes, the new liberal defenders of federalism combine support for a measure of decentralization with a continued commitment to letting Congress have nearly unlimited authority to override state government decisions. In my view (spelled out in this symposium essay on Gerken’s work), these two precepts are ultimately incompatible. If we really believe that federalism is necessary to promote diversity and other important goods, than we should be willing to enforce some substantial constitutional limits on the federal government’s power to stifle that diversity.

It is interesting to consider why the current generation of liberal legal scholars often have a more positive view of federalism than their elders. A major factor is the decline in the association between federalism and racism. Liberals who came of age between, say, 1940 and 1975 understandably viewed federalism arguments primarily as a shield for Jim Crow oppression of minority groups. But things have changed over the last thirty years, to the point where, as Gerken argues, state and local governments are often more solicitous of minority group interests than the federal government is. In a previous post on her work, I point out that these developments may over time bring US liberal attitudes towards federalism more in line with those of the left in most other federal nations, where federalism is often seen as the friend of minority interests rather than their enemy.

A second factor is a gradual decline in liberal confidence in the feasibility of rational central planning of an increasingly diverse and complex society. To my mind, most of the left is still overly optimistic about the ability of the federal government to create one-size-fits-all solutions for social and economic problems. But the degree of left-wing optimism on that score is not as great as it was in the heyday of the New Deal and Great Society.

I have a variety of reservations about the new liberal “nationalist” rationale for federalism, not all of which are covered in this post. Nonetheless, this new school of thought is an important contribution to the academic debate over federalism, and – at least in my opinion – a significant improvement over the previously dominant left of center position on federalism issues. Thanks in part to Heather Gerken and others like her, debates over federalism today are much more interesting and nuanced than a generation ago.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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