Michael Uhlmann reviews a new book by one of my favorite constitutional scholars: Robert Nagel. The book: The Implosion of American Federalism. A quote from the review:
Those who expect the Court to lead a revival of federalism are looking in the wrong place. Indeed, Nagel argues, the true measure of federalism’s weakness consists precisely in the belief that we must look to the Court to make things right. The decline of federalism and the rise of judicial supremacy, in short, are the opposite sides of a single coin.
A truly robust federalism, in Nagel’s view, requires not only a legal structure conducive to its maintenance, but a settled disposition on the part of the people in favor of local diversity and prerogative, and a disciplined love of liberty that transcends the desire for immediate gratification. None of these, he says, are to be found in great abundance these days. Instead, he finds a desire to avoid risk, an impatience with conflict, and a servile yearning for simple solutions decreed by centralized authority. These are not the hallüarks of a people that wishes to remain free. Indeed, says Nagel, “we may be witnessing the rapid realization of Tocqueville’s foreboding vision of a mass of striving but discontented individuals ‘endeavoring to procure . . . the pleasures with which they glut their lives’ under the shadow of one ‘immense and tutelary power.’”