Robert Nagel has written a thought-provoking book about federalism that questions (and refutes) much of the current scholarly and journalistic rhetoric about the U. S. political system. Over the last decade, the Supreme Court has been said to have revolutionized the legal system with a series of decisions that upset many of the deeply held convictions about the proper relationship between the states and the federal government. During this time, the Court's decision making was guided by a "new federalism" jurisprudence that, according to many, expanded state sovereignty at the expense of the federal government's policymaking and enforcement authority. During the 1990s, the Court placed limits on Congress's power to set and enforce public policy by constraining its ability to enact laws under its
commerce clause authority, by expanding state sovereign immunity under the Eleventh Amendment in state and federal courts, by barring damage suits against states for patent and trademark infringement as well as suits for age and disability discrimination, and by specifying limits on Congress's authority to legislate under 5 of the Fourteenth Amendment. A number of scholars have argued that the Court's new emphasis on state autonomy initiated a major change in federal-state relations and signaled that a majority of the Court was committed to altering the balance of power between the states and the federal government.

Nagel is not concerned about these events; he is focused instead on the damage that he claims is being done by forces moving in the opposite direction. In his view, the Court is not leading the nation in a revival of federalism and respect for state autonomy, rather, he asserts that to the contrary, the Court itself is one of the major forces in bringing about what he terms, "radical nationalism." Additionally, he indicts the constitutional law establishment for being guilty of the same extremism.
Thus, Nagel sets himself apart from much of the legal establishment by not decrying the Court's shift away from national policymaking; instead, he decries the shift away from localism and decentralization that is moving the country toward increasing centralization that is, toward the implosion of federalism.

Acknowledging that there are "signs of fragmentation" (p. 3) manifested in the nation's disunity over affirmative action, abortion, and homosexuality, as well as conflicts over the role of religion in society, Nagel contends that these do not accurately reflect the current reality of the nation's approach to centralization.

A quarter century ago, the dissent in NATIONAL LEAGUE OF CITIES v. USERY (1976) warned of the collapse of the constitutional structure if states were permitted to overwhelm federal authority; more recently, in U.S. TERM LIMITS, INC.

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v. THORNTON (1995), the majority issued similar warnings of the danger of allowing states to overwhelm national authority, raising the ugly specter of a return to the Articles of Confederation. Nagel argues that these fears of disintegration are largely illusory and that the real danger to the political system is that the opposite will occur. In other words, in his view, increasing centralization is the more likely outcome if the current forces of the political and constitutional structure continue to move the nation in the direction it is going. He claims this is happening in part because, contrary to popular belief, the courts are not fostering federalist principles other than on a superficial level. Indeed, he maintains, it is an indication of how far centralization has become the dominant force that people look to the courts to stem the tide and reverse course.

In his eyes, the "excessive nationalization" which characterizes the U.S. political system today is accompanied by a host of ills, including "a yearning for intellectual simplicity and closure, a panicky inability to tolerate conflict and variety, a servile and needy attachment to authority, and a childish, dishonest public discourse" (p. 12). The book offers no prescription to escape these unfortunate consequences, but seeks to open people's eyes to the dangers and to "regret" and "resist," if possible, the movement of these forces (p. 13). The fact that many look to the Court to be the bulwark against the forces of centralization, when the antithesis is
true, only underscores the depth of the problem.

Nagel assesses several important Supreme Court cases over the last decade, focusing on the degree to which they moved the nation toward or away from nationalism; his analysis is based on majority opinions, dissents, and legal and journalistic commentary. He begins with UNITED STATES v. LOPEZ (1995), the case often cited as the Court's first major step toward centralization, in which the Court rejected Congress's attempt to rely on the interstate commerce clause to regulate the possession of firearms around schools. Notwithstanding the shock value of the decision for most court observers--the first time in sixty years that the Court denied Congress its use of the interstate commerce clause authority to enact regulatory legislation--Nagel argues that the case did not signal an unwelcome return to the New Deal era of activism by reining in congressional powers and enhancing state and local government authority. Indeed, he agrees with the majority's
conclusion, but criticizes it for not applying the "substantial effects" test it articulated in the case. Thus, LOPEZ was neither as bad nor as good (depending upon one's point of view) as many thought, according to Nagel. He mentions only in passing, however, that LOPEZ paved the way for UNITED STATES v. MORRISON (2000), in which the Court struck the "civil rights remedy" of the Violence Against Women Act that permitted private civil suits by victims of sexual assaults. Many people would consider MORRISON a fairly significant decision, not only on the merits, but also because it denigrated Congress's carefully presented findings that violence against women has an impact on interstate commerce.

Refuting the contention that the Court used LOPEZ as a springboard in its drive for decentralization, Nagel maintains that for the most part the Court has favored national regulatory authority over decentralization. Even more telling, he says, is the Court's abundant willingness to override state judgments in such significant cases as R.A.V. v. CITY OF ST. PAUL

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(1992), TEXAS v. JOHNSON (1990), PLANNED PARENTHOOD v. CASEY 91992), SAENZ v. ROE (1999), and CITY OF CHICAGO v. MORALES (1999). Here, he explains, the Court rejected states' efforts to determine public policy in a range of arenas, including freedom of expression, welfare policy, and abortion rights.

The most interesting and provocative chapters of the book discuss the Court's approach to privacy cases. Beginning with CASEY, he criticizes the plurality opinion on a number of levels, calling it "highly intellectualized" and "incomplete" (p. 100). He is primarily upset about the plurality's attempt to justify the opinion on the nation's need for stability that, it believed, was furthered by its assumption of judicial supremacy in constitutional interpretation. In reality, CASEY is, he asserts, a defense of judicial authority, sustained against a mythical challenge that existed primarily in the Court's mind. In his view, ROE v. WADE (1973) represented
the Court's attempt to take the controversy over abortion rights out of the public debate and CASEY represented its effort to continue that trend. The Court was moved to do so, he argues, because of its anxiety over the fragility of the political system and its threatened collapse if the Court failed to suppress dissent by speaking authoritatively in the national abortion debate.

In his view, the subtext (what he calls the "shadow argument") of CASEY indicates that the Court's anxiety over national disintegration was fueled by the spiraling cycle of centralization that was misguidedly begat by its decision to nationalize abortion policy in ROE. By going down this path, the CASEY plurality attempted to preclude a potentially explosive national debate over abortion--drawing upon the legitimacy of its constitutional interpretation--and instead created the opposite effect.

I must admit to puzzlement about whether Nagel's censure of CASEY stems from his objection on theoretical grounds or whether he is simply opposed to the Court's decision to "reaffirm the essence of ROE." From my perspective, CASEY merits criticism because it did not go far enough in shutting off debate on the matter of a woman's fundamental right. For although it refused to enhance state autonomy by heeding the Bush administration's urging to overrule ROE, in upholding all but one of the regulations in the Pennsylvania law and allowing states more leeway in restricting access to abortion, the plurality (and ultimately the Court) actually supported decentralization over centralized protection of individual rights, an outcome to which he would presumably be sympathetic.

Another case to which Nagel devotes a great deal of attention is ROMER v. EVANS (1996). This case, according to him, also illustrates the Court's mistaken view that it can deflect moral upheavals by imposing centralization through constitutional interpretation. The decision, which invalidated Colorado's Amendment Two on equal protection grounds, represents, I believe, the only instance of the high court's support for gay rights, however constrained the support was. Again, he provides evidence for his claim that the decision manifests the Court's misunderstanding of its proper role in the body politic. Despite the evidence that many intended it to limit the individual rights of non-heterosexuals, Nagel devotes much of the chapter to defending the aims of the advocates of Amendment Two. Although, in his
defense, Nagel does not argue there is "an adequate justification for Amendment Two," he does not view the

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measure as irrational or invidious as the Court did when it struck it (p. 116). He takes the Court (as well as academic commentators) to task for failing to explore the purported justification offered by its proponents. Again, let me make clear, he does not defend the Amendment, nor the public relations campaign that was waged to secure its approval, but he dismisses their real and symbolic significance by noting that "all that can be said with certainty about Amendment 2 is that it would have established a LEGAL disability against claims of discrimination based on sexual orientation" [pp. 121-22 (emphasis in the original)]. It would seem to me that this is a
sufficient reason to render it unacceptable.

Thus, because it did not mandate discrimination, but rather only permitted it, he believes Amendment Two was not motivated by animus and was not necessarily irrational. In his view, Colorado voters could support Amendment Two because they could legitimately fear the onset of a social and legal revolution that would not be to their liking. Paradoxically, he points out, their fears could arise from a realistic belief that national political, social, and legal institutions, including the Court, were disdainful of their local decision making process. He concludes the chapter by painting a dismal picture, suggesting the continuation of the downward cycle. As more people feel themselves swept up in national movements not to their liking, they will attempt to exert control over them and negate their effects. This in turn
will motivate national actors to impose greater centralization to combat the pressures exerted from local forces.

The book is interesting and thought provoking, and this review has barely scratched the surface of its complex argumentation. Clearly, one of its major goals is to debunk the myth that the Court is engaged in loosening the bonds the federal government holds over the states and to chastise the Court for failing to "regret" and "resist" the implosion of federalism by maintaining limits on national (or centralized) power. However, the linkage between his theoretical arguments and his unalloyed criticism of the two privacy decisions represents a troubling aspect of the book, raising a question for me about whether he has a subtext of his own.

For whether intentionally or inadvertently (and the latter seems unlikely, given the author's eminent scholarly reputation), it is disturbing that his analysis of CASEY and ROMER within the context of federalism provides grist for the anti-abortion and anti-gay rights mill. In his discussion of these two cases, Nagel criticizes the Court for bad decision making, in part because it miscalculates its ability (and the desirability) of stemming political discourse on moral controversies. But even if Nagel is rightly critical of the Court for its misguided attempts to bring about stability to national politics (and I do not accept that he is), it should not be forgotten that the two decisions he is most critical of preserved abortion rights (or, at least, did not eviscerate them) and made a strong statement against discrimination based on sexual orientation. In my view, when individual rights are in the balance, centralization or decentralization should not be the major concern.

These reservations notwithstanding, I strongly recommend the book for graduate political science or law classes. But because of its complexity and reliance on knowledge about numerous Supreme Court cases with which undergraduates are unlikely to be familiar, I believe it too advanced for most undergraduates.

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CASE REFERENCES:

CITY OF CHICAGO v. MORALES, 527 U.S. 41 (1999).

NATIONAL LEAGUE OF CITIES v. USERY, 426 U.S. 833 (1976).

PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).

R.A.V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992).

ROE v. WADE, 410 U.S. 113 (1973).

ROMER v. EVANS, 517 U.S. 620 (1996).

SAENZ v. ROE, 526 U.S. 489 (1999).

TEXAS v. JOHNSON, 495 U.S. 33 (1990).

UNITED STATES v. LOPEZ, 514 U.S. 549 (1995).

UNITED STATES v. MORRISON, 529 U.S. 598 (2000).

U.S. TERM LIMITS, INC. v. THORNTON, 514 U.S. 779 (1995).

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Copyright 2002 by the author, Susan Gluck Mezey.