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I am delighted for the chance to engage with Heather Gerken's work. I want to begin by offering tremendous kudos. I think the new nationalist school of federalism is a very exciting intellectual development. Over the years, many federalism scholars have emphasized the importance of state participation in federal programs. But Gerken's recent writings, and those of other contributors – Abbe Gluck, Jessica Bulman-Pozen, and Erin Ryan – have forced this phenomenon onto center stage, highlighting the ways that devolution advances nationalist goals. With her characteristic elegance and provocation, Gerken's Article contends that the centrality of nation-state conjoining requires casting aside some of our inherited but outmoded conceptions of nation and state as distinct entities. She challenges both nationalists and federalists to get with the times. For the nationalists, that means recognizing the value of decentralization and devolution. For the federalists, it means recognizing that states can wield powers even in these heavily nationalist contexts.

I agree with large parts of the nationalist school argument. The modem day reality is one of nation and state acting together, cheek by jowl. This reality deserves the pride of place that the nationalist school insists it receive. That said, I want to push back at Gerken's contentions that the concepts of state autonomy and state sovereignty are now outmoded, as are nationalist concerns about dependence on state governance. The theme of my remarks is agreement but with a plea for a little bit more balance and nuance. We can better profit by integrating the concerns of prior decades of federalism scholarship into the insights of the new. I will close with a few comments on the question of what the rules of engagement should be for the world of federal-state bargaining. Gerken urges that this is where federalism scholars should focus their attention, and rightfully so: it is the critical question for federalism going forward.


Constitutional Law | Law


Reprinted with permission of the Saint Louis University Law Journal © 2015, St. Louis University School of Law, St. Louis, Missouri.