The Implosion of American Federalism

At a time of unprecedented national power, why do so many Americans believe that our nationhood is fragile and precarious? Why the talk--among politicians, academics, and jurists--of "coups d'etat," of culture wars, of confederation, of constitutional breakdown? In this wide-ranging book, Robert Nagel proposes a surprising znswer: that anxiety about national unity is caused by centralization itself. Moreover, he proposes that this anxiety has dangerous cultural consequences that are, in an implosive cycle, pushing the country toward ever greater centralization. Carefully examining recent landmark Supreme Court cases that protect states' rights, Nagel argues that the federal judiciary is not leading and is not likely to lead a revival of the complex system called federalism. A robust version of federalism requires appreciation for political conflict and respect for disagreement about constitutional meaning, both values that are deeply antithetical to the Court's function. That so many believe this most centralized of our Nation's institutions is protecting, even overprotecting, state power is itself a sign of the depletion of those understandings necessary to sustain the federal system. Instead of a support for federalism, Nagel finds a commitment to radical nationalism throughout the constitutional law establishment. He traces this commitment to traditionally American traits like perfectionism, optimism, individualism, and legalism. Under modern conditions of centralization, these attractive traits are leading to unattractive social consequences, including tolerance, fearfulness, utopianism, and deceptiveness. They are degrading our political discourse. All this encourages further centralization and further cultural deterioration. This book puts the major federalism decisions within the framework of the Court's overall record, including its record on individual rights in areas like abortion, homosexuality, and school desegregation. And, giving special attention to public debate over privacy and impeachment, it places modern constitutional law in the context of political discourse more generally.

Review :
"His voice is conservative but with a surprising twist....[Nagel] suggests that the Court's 'new federalism' jurisprudence falls far short of restoring state government and politics to their full and proper vigor. "--The Washington Post "A subtle and compelling analysis of the leading cases, which makes up the bulk of his splendid book, Nagel shows, first, that the Supreme Court has not really reasserted federalism but rather "domesticated" it. --The Weekly Standard "Mr. Nagel...has produced a book that is at once scholarly and engaged...The case he makes is compelling."--The Washington Times "No recent book matches Nagel's thoughtful and thought-provoking observations on federalism, the Supreme Court, and the state of American politics."--Michael S. Greve, AEI "Confirms Nagel's reputation as one of the few truly radical thinkers writing on the Constitution....The book will enrage some and trouble others, but no one interested in constitutional law--or the health of the federal Republic--can afford to ignore Nagel's views."--H. Jefferson Powell, Duke University "His voice is conservative but with a surprising twist....[Nagel] suggests that the Court's 'new federalism' jurisprudence falls far short of restoring state government and politics to their full and proper vigor. "--The Washington Post "A subtle and compelling analysis of the leading cases, which makes up the bulk of his splendid book, Nagel shows, first, that the Supreme Court has not really reasserted federalism but rather "domesticated" it. --The Weekly Standard "Mr. Nagel...has produced a book that is at once scholarly and engaged...The case he makes is compelling."--The Washington Times "No recent book matches Nagel's thoughtful and thought-provoking observations on federalism, the Supreme Court, and the state of American politics."--Michael S. Greve, AEI "Confirms Nagel's reputation as one of the few truly radical thinkers writing on the Constitution....The book will enrage some and trouble others, but no one interested in constitutional law--or the health of the federal Republic--can afford to ignore Nagel's views."--H. Jefferson Powell, Duke University "Robert Nagel painstakingly dissects overblown claims that the Supreme Court's recent decisions have already put in place a radical anti-nationalism. While despairing of the possibility that we will turn our backs on the nationalism to which we have become accustomed, Nagel defends those who would attempt to revitalize state governments in the face of our nationalized culture."--Mark Tushnet "Wide-Ranging, incisive, and highly controversial, Nagel's new book makes essential reading for anyone interested in the future of America's nationhood." - - Yale Law Report