Judicial Power and the Restoration of Federalism

• Author: Robert F. Nagel
• Published date: 01 March 2001
• Date: 01 March 2001
• DOI: http://doi.org/10.1177/000271620157400104
• Subject Matter: Articles

52

Judicial

Power

and

the

Restoration

of

Federalism

By

ROBERT

F.

NAGEL

Robert

F.

Nagel

is

the

Ira

C.

Rothgerber,

Jr.,

Professor

of

Constitutional

Law

at

the

University

of Colorado,

Boulder.

He

is

the

author

of

Constitutional

Cultures

(1989);

Ju-

dicial

Power and

American

Character

(1994);

and

The

Collapse

of American

Federal-

ism

(forthcoming).

His

articles

have

appeared

in

numerous

academic

journals

as

well

as in

the

Wall

Street

Journal,

New

Republic,

Washington

Monthly,

Public

Interest,

and

First

Things.

ABSTRACT:

A

series

of

decisions

by

the

United

States

Supreme

Court

raises

the

question

of whether

the

federal

judiciary

will

help

to

induce

a

major

shift

toward

decentralization.

Despite

the

ambitious

hopes

of

some

observers

and

the

desperate

fears

of

others,

there

are

reasons

to

doubt

that

the

Court

will

implement

such

a

program.

The

justices

are

unlikely

to

persist

in

protecting

states’ rights

in

part

be-

cause

of

their

own

ambivalence

and

in

part

because

the

idea

itself

is

too

self-contradictory

to

support

a

consistent

interpretive

agenda.

Even

if the

Court

were

to

overcome

these

problems,

it

lacks

the

capac-

ity

to

control

the

relevant

behaviors

and

attitudes.

The

main

poten-

tial

political

allies

in

a

states’-rights

campaign—state

officials

and

populist

dissenters—are

unlikely

to

have

interests

compatible

with

judicial

norms

or

to

be

effective

voices

for

federalism.

In

fact,

general

social

and

cultural

conditions

seem

to

favor

further

centralization.