Federalism and Nationalism: Time for a Détente?

Abstract

There has been a "merry war"--or maybe just a war-between federalism's stalwarts and traditional nationalists. I came to the debate late in the game, when it had reached that point that Robert McCloskey so vividly described in constitutional law-when everyone seems like aging boxing club members who have fought so long that they know each other's moves and fight mostly to tire the other out. I want to propose a detente between those opposing camps. I actually want to propose dispensing with these camps altogether, but I'd be happy with enough of a suspension of hostilities to move federalism debates forward. I'll explain why the time is right for a detente, the benefits to be gained from it, and the concessions each side needs to make. My core claim is that the emergence of what I've called the "nationalist school of federalism" has unsettled traditional federalism debates and created the conditions for a detente to occur. For ease of exposition, I'll refer to the nationalist school as the "new nationalists," just so you can distinguish them from the "traditional nationalists" when I'm describing the different schools of thought.