Wednesday, April 16, 2014

Federalism as the new nationalism - The Yale Law Journal

Surrender at Appomattox by Brendan Wolfe 
The new issue of the Yale Law Journal features a group describing themselves under the rubric "federalism is the new nationalism" .  Generally they try to rescue nationalism from the clutches of federalism as currently celebrated by the right.  People like Antonin Scalia in U.S. v. Arizona declare for state sovereignty as having at its heart the "right to exclude". It's not a long way from there to becoming the Union of Sovereign States of America.  Even Stephen Breyer and Elena kagan folded in the face of state sovereignty concerns by voting to allow states to reject Medicaid expansion - perhaps the cruelest and most consequential of recent "federalist" victories.
The new Yale nationalist federalists look not just to the New Deal but to the ways in which states already have become national instruments.  OK, but I would bury state sovereignty at Appomattox.  Good luck to them anyway.  All contributions to quelling the states rights thrusts are welcome. - gwc
The Yale Law Journal - Print Archive:
Abbe Gluck - intro 
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.

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