Robert F. Nagel

Federalism as a Fundamental Value: National League of Cities in Perspective

In examining the Constitution of the United States ... one is startled at the variety of information and the excellence of discretion which it presupposes in the people whom it is meant to govern. The government of the Union depends entirely upon legal fictions; the Union is an ideal nation which only exists in the mind, and whose limits and extent can only be discerned by the understanding. [ALEXIS DE TOCQUEVILLE*]

On the Decline of Federalism

ically declined in signi1⁄2cance to the American public. One reason for this deterioration was the development of new individual rights, particularly as a result of the civil rights movement, when state sovereignty was closely associated with opposition to racial integration and, more distantly, with slavery itself. The expansion of government at the national level also reduced the importance of states. If states sometimes did ful1⁄2ll their vaunted function as laboratories of democracy, as was true with welfare reform, ensuing reforms enacted at the national level soon eclipsed the states’ contribution. Most people have not mourned this loss of state authority. In fact, only a few years ago, sophisticated observers became alarmed at what they perceived as the Supreme Court’s attempts to engage in a radical, even revolutionary, effort to revive the role of states in the federal system. Over the past three years, however, the clamor has begun to subside as the Court has issued several rulings that once again expand the scope of Congress’s power and limit state immunity from that power. These recent decisions, together with a long-running series of cases that constrict state regulatory authority through the aggressive creation of individual rights, make it clear that federalism is not nearly as high a priority for the justices as their occasional states’ rights rhetoric might suggest. Yet a lack of public or scholarly interest in states is not the same as a lack of interest in decentralization. In fact, since at least the 1950s, considerable academic and journalistic concern has been expressed about the loss of political life at the local level. On both the right and left, many have called for the reinvigoration of neighborhood councils, school boards, and the various private clubs and associations that grow up around local governmental institutions. What makes this kind of decentralization appealing, of course, is that it provides the opportunity for direct, personal dealings among citizens and for decision making that is highly sensitive to local conditions. These communitarian values have also attracted the justices of the Supreme Court. For instance, they have approved local 1⁄2nancing of public education, de-

American Constitutional Law

This textbook focuses on the Constitutions provisions for government structure and on how constitutional structure helps guarantee protection of substantive rights and liberties. It promises to be an indispensable resource for teachers, students, practicing lawyers and judges. This preeminent treatise provides a wealth of original, insightful, and influential analysis of constitutional law doctrine and policy.Professor Tribes central concern is the Constitution itself, not the Supreme Court as an institution. While addressing relevant issues of institutional capacities and roles, he does not stop at discussing the Court as the right or wrong forum to review a particular issue and render judgment; the more crucial question is whether the judgment itself was right or wrong as an element in the living development of constitutional justice.