An overview.

• Author: Gerken, Heather K.
• Position: Federalism as the New Nationalism

Federalism has had a resurgence of late, with symposia organized, (1) stories written, (2) and new scholarly paths charted. Now is an appropriate moment to assess where the new "new federalism" (3) is heading. This Feature thus brings together five scholars who have made unique contributions to the field in order to offer a snapshot of the current debate.

Taken together, these essays suggest that federalism is the new nationalism. Shorn of the traditional 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, of course, have long been skeptical of conventional accounts of federalism. But, as the work here shows, those accounts no longer describe vast swaths of "Our Federalism." It's time for the nationalists, who have often rebuked federalism's proponents for being behind the times, to catch up to today s realities. That's especially true now that scholars have developed new justifications for devolution that pivot off of nationalist concerns. While the contributors to this Feature have different views, each believes that a committed nationalist ought to believe in federalism, just as a committed proponent of federalism ought to care about the states' evolving role in our national system.

The work of the contributors offers a lens for identifying the basic tenets of what I call the "nationalist school of federalism." In this introduction, I've organized my observations 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) "rules of engagement" (4) 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. While I focus on the work done by the contributors to this Feature, I also acknowledge the scholars who have inspired or helped develop this new account, even if they may not count themselves as members of the nationalist school. (5)

1. federalism's nationalist ends

Any account of federalism must begin with the values it serves. The question at the core of this Feature is whether federalism can serve nationalist ends. Alison LaCroix poses the question most provocatively: If we accept Holmes's expansive vision of national power, is it nonetheless "possible to conceive of the states as having significance?" (6)

Supporters of conventional federalism have a ready list of reasons why states matter. Federalism promotes choice, fosters competition, facilitates participation, enables experimentation, and wards off a national Leviathan. The conventional account insists that sovereign or at least autonomous states--states with "meaningful things to do," to use Ernie Young's pragmatic definition (7)--are necessary to achieve these important goals.

The nationalist school has put a different set of reasons for valuing states on the board. Most take the perspective of the detached social engineer, focusing on the institutional features needed for a vast and diverse nation to thrive. But some take the vantage point of a self-interested national actor. What unites these new accounts of federalism's ends is that they are also nationalist ends. (8)

You might think that a "nationalist school of federalism" is a contradiction in terms. It isn't. In order to see why, a bit of a definitional work is in order.

Scholars often write as if the key difference between the two camps is that nationalists favor lodging most decisions with the federal government, whereas federalism's supporters favor devolution to the states. While that simple definition may be descriptively accurate, it elides an important distinction between means and ends. Both devolution and centralization are means to an end. They are, in fact, means to the same end: a well-functioning democracy. (9) That's why most of the arguments conventionally offered in federalism's favor are ones a nationalist could accept.

For this reason, it can't be that the federalism/nationalism divide has only to do with our choice of means. There are many sensible justifications for moving decisions up or down the governance hierarchy. If we were just quibbling about means, views on devolution ought to be highly contextual and fall along a broad continuum. These questions could only be worked out on a case-by-case basis, and disagreements would concern matters of degree. What we see instead are clearly defined intellectual camps with firm commitments to a single institutional design strategy across policymaking spheres. Federalism types favor state power in most situations; (10) the nationalists' one-way ratchet pivots the other direction.

A cynic might think that camps exist because we've let means bleed into ends. On this view, state autonomy and national power are mistakenly treated as if they were ends, not means. (11) Scholars have so vigorously canvassed the democratic ends served by devolution or centralization that they sometimes confuse those accounts with an exhaustive description of what a vibrant democracy requires. (12)

While it's possible that both camps have allowed means to bleed into ends, a more generous take suggests that what really propels this battle are two different visions of democracy. One emphasizes state power, state politics, and state polities; the other national power, national politics, and a national polity.

If we characterize the two camps in this fashion, it becomes clear that federalism can serve the ends that the nationalists have long associated with their vision of American democracy. It is possible to have a "nationalist account of federalism," (13) an "intrastatutory federalism," (14) or for "federalism's afterlife [to be] a form of nationalism." (15) It is possible to imagine federalism integrating rather than dividing the national polity. (16) Given the importance of "build[ing] a union" to the Founding generation, it is even possible that "federalism ... has always been the United States' distinctive species of nationalism." (17) The work of the scholars contributing to this Feature confirms 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.

Note what else follows from treating federalism as a means rather than an end. There is little point to valorizing categories like "state" and "national." For some of us, that position doesn't just signal skepticism about the stability or coherence of these categories. (18] It also heralds an openness to national involvement in areas of traditional state concern and the use of local sites to build a national polity or forge national policy. Even those who embrace a more state-centered view--Abbe Gluck being the notable example in this collection (19)--have done a great deal of descriptive work on the way that federalism, in fact, serves nationalist ends.

At this point, federalism's traditional proponents might think it's time to get off this train. They shouldn't. A nationalist account of federalism may not resemble the conventional one, with its emphasis on autonomy and independent state policymaking. But this work shows why state power, in all of its forms, matters to a thriving national democracy. Too often federalism scholars have treated sovereignty and autonomy as if they were the only forms of state power, (20) as if the states and national government were in a zero-sum policymaking game. (21) They've neglected the different but equally important forms of state power that are at the heart of the nationalist school's work on federalism: The power states enjoy as national government's agents. (22) The power states exercise in driving national policy and debates. (23) The power states wield in implementing and interpreting federal law. (24) Abbe Gluck even argues that states are exercising their "sovereign powers" in cooperative federal regimes, "albeit in ways different from those contemplated by the traditional account." (25)

While these forms of state power may not fit the conventional account, they should still matter to those who care about state clout. That's because these avenues of state influence may be the most important forms of state power going forward. (26) They may even become the only game in town. (27)

So how does federalism ensure our national democracy thrives? What nationalist ends have scholars identified? The scholars contributing to this Feature, standing alone, have written about at least four: improving national politics, knitting together the national polity, improving national policymaking, and entrenching national power and national policies.

1. Improving National Politics: The Discursive Benefits of Structure

   Much of the work of the nationalist school has focused on what one might call the "discursive benefits of structure." Constitutional theory has divvied up the tasks of American constitutionalism into doctrinal silos. (28) Those interested in governance--allocating power among institutions so that policymaking flourishes and a Leviathan does not emerge--have focused on constitutional structure generally and federalism in particular. Those interested in democratic debate, meanwhile, have focused on the rights side of the Constitution, particularly the First Amendment.

   One of the nationalist school's distinctive contributions is showing how structural arrangements help tee up national debates...