Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely powerful over the course of United States history, to the point that it is difficult to identify areas of human activity that the national government cannot regulate. But the social and doctrinal developments that helped to usher in the empowerment of our national government have not been accompanied by the development of a constitutional theory of federalism that takes nationalism properly into account. To the contrary, nationalism is routinely treated as something external to our constitutional federalism or, indeed, something antagonistic to it. Informed observers, both on the courts and in the academy, often write as if federalism and devolution were synonymous, and as if our federal system were designed to capture only the benefits associated with state empowerment. The textual foundations for, and functional goals associated with, the nationalist side of the enterprise are infrequently discussed and seriously undertheorized, and, as a result, nationalism’s role in our federal scheme is poorly understood. This Article endeavors to document our neglect of nationalism, to consider its causes, and to speculate about its consequences.
U. Pa. J. Const. L.
Available at: https://scholarship.law.upenn.edu/jcl/vol21/iss3/1