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.
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