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Carefully examining recent landmark Supreme Court cases that protect states' rights, Nagel argues that the federal judiciaryis not leading and is not likely to lead a revival of the complex system called federalism. A robust version of federalism requires apprecation for political conflict and respect for disagreement about constitutional meaning, both values that are deeply antithetical to the Court's function. That so many believe this most centralized of our Nation's institutions is protecting, even overprotecting, state power is itself a sign of the depletion of those understandings necessary to sustain the federal system.
Instead of a support for federalism, Nagel finds a commitment to radical nationalism throughout the constitutional law establishment. He traces this commitment to traditionally American traits like perfectionism, optimism, individualism, and legalism. Under modern conditions of centralization, these attractive traits are leading to unattractive social consequences, including tolerance, fearfulness, utopianism, and deceptiveness. They are degrading our political discourse. All this encourages further centralization and further cultural deterioration.
This book puts the major federalism decisions within the framework of the Court's overall record, including its record on individual rights in areas like abortion, homosexuality, and school desegregation. And, giving special attention to public debate over privacy and impeachment, it places modern constitutional law in the context of political discourse more generally.
"A subtle and compelling analysis of the leading cases, which makes up the bulk of his splendid book, Nagel shows, first, that the Supreme Court has not really reasserted federalism but rather "domesticated" it. --The Weekly Standard
"His voice is conservative but with a surprising twist....[Nagel] suggests that the Court's 'new federalism' jurisprudence falls far short of restoring state government and politics to their full and proper vigor. "--The Washington Post
"No recent book matches Nagel's thoughtful and thought-provoking observations on federalism, the Supreme Court, and the state of American politics."--Michael S. Greve, AEI