Federalism on the Bench

The Implosion of American Federalism
by Robert F. Nagel
Oxford University Press, 209 pp., $35

THE WAR AGAINST TERRORISM, like other wars before it, will enhance respect for the national government and increase its growth. That prediction, and the corollary prediction of federalism's demise, unites everyone from Democratic activists to libertarians. And many observers argue that the Supreme Court--the only political institution that has taken federalism seriously over the past decade, as Robert F. Nagel observes in "The Implosion of American Federalism"--will not jettison its support for state and local governments.

But the truth is that September 11 has done little to undermine the Supreme Court's federalism agenda--the centerpiece of the Rehnquist Court's jurisprudence. It may even have strengthened the plausibility of its arguments. The question, now as before, is whether that's enough to ensure federalism's future.

Nagel locates federalism's "implosion" not in external events, such as wars, but in the dynamics of American democracy. "Federalism," in Nagel's robust sense, means an open, democratic, competitive politics that institutionalizes challenges to national authority. Such a federalism requires a distrust of central authority and a taste for self-government--and, along with these ornery sentiments, a certain moderation of egalitarian aspirations and a tolerance for openness and imperfection. To some extent, federalism also fosters these sentiments by teaching citizens that "obviously" beneficial laws, from waste-disposal requirements to child-care benefits, have costs as well as benefits (including the risk that industries and jobs will move to other jurisdictions).

Federalism and self-government, though, exist in tension with democratic sentiments for perfection, sameness, and equality, all of which require intervention by central government. Punting democratic choices to the national government obscures the trade-offs, since the costs are spread over a much larger number of losers who can no longer escape to other jurisdictions. Once this temptation has overwhelmed the adult sense of self-government and moderation, it will prevail more easily in the next case, and even more easily thereafter. That, says Nagel, is our predicament. He hopes that our political community has not yet become wholly nationalized. But he suspects that "we may already be past the point of no return, that the great moral, political, and cultural mass at the center is overwhelming weak institutions and practices at the periphery and is likely to become more overwhelming."

"The Implosion of American Federalism" rightly notes that the Supreme Court's federalism decisions over the past decade provide the only hope for federalism. In 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.

Nagel's fitting phrase means that the Court will protect a sphere of state autonomy but will cease to do so when state-level democracy threatens policy commitments that the Court perceives as central to national unity and cohesion. Romer v. Evans, invalidating Colorado's popular referendum banning local gay-rights ordinances, is an example; the Court's abortion-rights decisions are another. As Nagel shows, the majority opinions in those cases be-tray a near-hysterical fear of national disintegration.

Second, Nagel argues that "the fact that so many of the hopes and fears [over federalism] should be riveted on this supremely unlikely institution is itself a discouraging sign of implosion." An appeal to the Supreme Court is by definition an appeal to national authority. Federalism plaintiffs may mobilize arguments from democratic, local control, but they are appealing to the least democratic and most centralized of our institutions.

This is true, of course. And yet, the modern Supreme Court has also proven itself a remarkably reliable institutional critic of national power. In a little over a decade, the justices have invalidated more federal statutes on federalism grounds than their predecessors did over the course of two centuries. Nagel rightly laments that this solicitude for a more open, democratic politics does not extend to the Supreme Court's own impositions on state and local governments, especially in matters of sex, life, and death; in that sense, the Court's decisions reek of judicial supremacy rather than federalism. The decisions, though, also fit a more encouraging pattern: a campaign against the nationalist impositions of the nanny state.