Posted: February 13, 2003
obert Nagel is a worrier. Unlike most constitutional lawyers, he knows what is worth worrying about: the future of responsible self-government in the United States. For Nagel, who teaches law at the University of Colorado, federalism is endangered by an "eclipse of state institutions" and of the messy but salutary political culture that once sustained them. The Supreme Court, he argues, has become the vortex where the "individualism, impatience, and perfectionism [once] associated with the American frontier" result in illusory legal certainties, the radical isolation of individual citizens, the debasement of political debate, and the withering away of meaningful local communities.
Readers of Nagel's previous books (Constitutional Cultures and Judicial Power and American Character) will once again be drawn into his compulsively readable, densely packed arguments about the consequences of American reliance on the Court as "a churchlike arbiter of moral truths." First-time readers may be surprised to discover that Nagel devotes only about half of this book to the Supreme Court's recent "federalism" decisions, which have raised such alarums in the law reviews. He makes a strong case that the Court has not been—and cannot be expected to be—a defender of the "robust federalism" of the founding, but instead "is likely to provide us with only a domesticated version of federalism," because its deepest commitment is to the augmentation of its own power. For Nagel, there is little hope that recent rulings on commerce, state sovereign immunity, or the "commandeering" of state governments by national laws are harbingers of a truly revived political conversation across the boundaries of federalism. This is so because "natural inclinations of the judicial mind" place the justices "at war with federalism to the extent that federalism exists so that disagreement can be registered and national authority questioned."
In the book's latter half, Nagel applies his claim about the Court's inclination to brook no disagreement, in brilliant chapters on the implications of judicial supremacy; the development of the so-called "privacy" principle into an engine that simultaneously nationalizes and radically individualizes the most serious moral decisions; the emergence of increasingly shrill and personalized discourse at the national level while "political dialogue at the state level [becomes] bland, insubstantial, derivative, and unserious"; and the taste for highly abstract legalisms (memorably labeled the "Yale Argument") that become substantially indistinguishable from lies about ourselves and our country. Even the mendacity of an impeached Bill Clinton gets the Nagel treatment, illustrating the ways in which "lying is magical and liberating" in our degraded political culture.
The trouble with the discussion of the "federalism" cases of recent years is that, while Nagel is highly critical of the Court's comprehensive purposes, he seems to cling to a certain sympathy for the reasoning of the "federalist" justices in National League of Cities v. Usery (1976), U.S. v. Lopez (1995), and other cases. Nagel admits that "what is missing" from most if not all of these opinions is "an appreciation for the role of conflict in our constitutional system." And he is deeply critical of the Court's "cherished [and self-proclaimed] role as the ultimate expositor of the Constitution." But he cannot quite grasp the nettle and say outright that the Supreme Court had no business, as a matter of constitutional principle, intervening authoritatively on behalf of the states in any of these cases. Nothing less than a complete judicial retreat from the "defense of federalism" where Congress has crafted a national policy through the use of its enumerated or implied powers is consistent, in my view, with the framers' separation of powers, or with the course of our whole constitutional jurisprudence prior to the Dred Scott case. But I can't help suspecting that Nagel would be happy to see the justices "get it right" on the subject of federalism, rather than leave it alone as they should.
One of the most interesting but least developed parts of his argument is his turn to the notion of interposition, by which he means nothing that smacks of Calhounian nullification, but merely "interposition for communicative and organizational purposes," aimed at "persuad[ing] the public that the 'people in the states' do have a legitimate role in enforcing constitutional limits." How this would work in practice so long as Congress remains a centralizing force in our politics is left somewhat mysterious. But perhaps the answer lies in the much better second half of the book, in which Nagel decries the deleterious effect of the Supreme Court's "individual rights" jurisprudence on the mechanisms, and the ethos, of constitutional self-government at the state and local level.
Perhaps the precondition for a revival of robust federalism is the rollback of the Supreme Court's moralistic libertarianism on abortion, pornography, "gay rights," religion, criminal justice, school integration, and a host of other matters. Were the people of the states to be readmitted to the American political conversation where matters of moral welfare are concerned, there might be less need for a supreme judiciary to ride to their rescue where the integrity of state government or the power over commerce is concerned.
How to achieve this? That is left to the reader. Nagel is more descriptive than prescriptive. This, too, sets him apart from most of his colleagues in the field, who are apt to declaim their solutions to constitutional problems with overweening confidence. Maybe this is a sign of Nagel's humility, or of an underlying pessimism. Or maybe it is that his work evinces the spirit not of the self-righteous prophet but of the careful pathologist, probing the tissues of the body politic with a view to identifying its deadliest cancers.