Balkinization: A Response to My Critics

A Response to My Critics

Guest Blogger

Michael Greve

For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).

Jack Balkin has been a dear friend for many years. I am very grateful for his hospitality here, and for the contributors’ thoughtful, generous comments on The Upside-Down Constitution (“UDC”). As was to expected, they have identified a wide range of questions that beg further examination and debate. I can’t possibly do them justice, nor even address all the relevant objections to my enterprise. What follows is my initial, tentative reply on three sets of questions. Consider it a partial contribution to a (hopefully, continuing) debate among friends and colleagues, about serious matters.

Political Economy

To start with Jacks’ terrific comments: he has nailed a question that particularly demands further explanation, or maybe two such questions. The point of cartel federalism (UDC insists) is to generate surplus—stuff that can be redistributed—at all levels of government, by means of intergovernmental collusion. However, Jack says, “surplus” runs together a bunch of different things, from “waste, fraud and abuse” to cost externalization to “constituent surplus.” I might not slice things exactly that way, but the problem is real. Here goes:

UDC imports the “surplus” idea wholesale from James Buchanan and (in a slightly different version) Mancur Olson. The basic idea is that an autocrat will provide a certain level of public goods (otherwise the peasants might rebel and the economy might underperform). But the autocrat’s maximand is the revenue he gets to keep (or to hand out to his friends)—the “surplus.” The further claim is that democratic politics by and large conforms to that model.

You can think of examples where the model has real bite. E.g., we build roads (a public good) but with Davis-Bacon wages: you can put a price tag on the surplus. (The example also illustrates why I’m skeptical about Jack’s distinction between “waste” and “constituent surplus”: the distinction is murky, if not entirely elusive, and to some extent in the eye of the beholder.) Federalism-wise, that’s called the “flypaper effect” (as when education grants fund educators and bureaucrats, not education), and you can calculate the rate of diversion. Think about it for five minutes, though, and the model loses its elegant veneer. Economists think they can tell public from private goods and then build models, but no sentient human believes the distinction is obvious. Every public good has private (and local) aspects in production or consumption. Similarly, you can describe the entire Clean Air Act as public-regarding legislation (however misguided in parts), or as an interest group racket. (Clean Coal, Dirty Air and all that.) The truth is that these things run together. UDC flags the complications with occasional “it’s just a (public choice) model” comments but then shoves them aside as so much shrubbery, the better to map the federalism forest. I think that’s legitimate (and Jack doesn’t doubt it), but so is the “how far do you mean to push this” question.

There’s a second problem with pubchoice models, likewise flagged by Jack: politics disappears. All politics is interest group politics. In the version proffered in UDC, moreover, states (or states political elites) are unitary actors, and they all opt for cartels. None of that sounds right, and none of it is. And the omissions/complications are highly salient.

Here’s an example: cartel federalism—in its contemporary version—doesn’t empower states or state elites per se and across the board. Often, it dis-empowers state legislatures (whose budgetary decisions are increasingly driven by the bureaucracy’s federal-transfer-maximizing strategies) and empowers state AGs, who have become profit centers. Here’s another example, noted in Jack’s post: Republican states are now refusing to accept expanded Medicaid funding under Obamacare, presumably for reasons that have to do with party organization and ideology. (Shades of Bill Riker.)

I’ve actually written quite a bit, in law reviews and at libertylawsite.org, on these sorts of the issues. UDC adverts to them. It doesn’t discuss them at any length but—and I suppose this is my defense—it helps to explain them. E.g., you call the SG’s office in (say) Oklahoma these days, and the guy or gal at the other end is a gunslinger from Harvard Law School: that would not have happened two decades ago. I can explain it. E.g., states refuse to accept federal Medicaid funds despite near-zero marginal cost and a reduction in average state cost: while I can’t fully explain that (and I think it won’t last), UDC does help to comprehend is that this is an unexpected outlier—not, as conservative mythology would have it, a reversion to the norm.

Jack concludes that UDC is “well and good as a starting point.” I hope it’s a bit more—that readers will conclude that it helps to understand and explain quite a bit, and decide for themselves where they want to jump off the train. And I hope it’s the right starting point—as opposed to most of the contemporary “federalism” discourse, which strikes me as hopelessly off the premises. With those provisos, I subscribe entirely to Jack’s concluding paragraph.

Constitutional Structure and Doctrine

The constitutional understanding that drives UDC is assailable from several angles. On one side, Michael McConnell contends that UDC has nothing to say about constitutional interpretation—that it’s best understood as a political scientist’s tract, albeit a good one. On the other side, Rick Hills and Gillian Metzger say that the text that is equally open to rival—and diametrically opposed—federalism interpretations. Maybe I’m asking the open-ended constitutional text to do too much.

Actually, UDC does reflect a certain theory of interpretation; it’s just that much of it is implicit. (For one sympathetic reviewer’s explication, see here: http://www.fed-soc.org/publications/detail/the-upside-down-constitution-by-michael-s-greve.) I cheerfully and emphatically embrace the proposition that each constitutional clause must have meaning and force. Interpretation, however, will get you only so far—and not far enough, I think, to make sense of the Constitution. As Neil Siegel (whose constitutional riff is, among the contributors here, closest to mine) appropriately puts it, I am (like him) “a structuralist at heart.” Beyond the individual clauses and their interpretation—but way, way short of some ethereal Dworkinian principle—there’s the constitutional structure and its logic (or “genius,” as John Marshall used to say). We can understand and explicate the structure and articulate the logic. And unless and until we do that, we can’t really make sense of any individual clause. I think.

To pursue the point: unlike Rick Hills, I don’t believe that the Constitution is “vacuous”; I believe that it is deliberately (somewhat) open-ended and minimalist. There’ll be more than a single plausible construction. But there’ll be better or worse constructions, and we can tell. Try a “balance” construction of federalism: you’ll hit roadblocks very quickly, starting with the fact that the Constitution (unlike most federal constitutions) conspicuously and deliberately eschews any balancing rule. Try “cooperative federalism”: you have to read the Compact Clause and the Contract Clause out of the Constitution (as the Supreme Court has in fact done), and those are just the proverbial canaries. Try (per Rick Hills) something like “agrarian localism”: the tradition does exist, although I don’t think it was ever as orthodox and dominant as Rick makes it out to be. But the theory, I think, was never very plausible, what with (e.g.) a ton of free trade and non-discrimination rules right there in the Constitution. (I am mindful of Gillian’s objection that this isn’t conclusive evidence; I simply can’t pursue the point here.)

Try (like Neil Siegel) something like “collective action problems”: that’ll work, for the most part. Neil does a very fine and fair-minded job in articulating the overlap and the discontinuities between his take and mine. I’d add this: there’s the important question of “federalism coordination by whom and on what terms.” The Constitution permits coordination through cartels, usually supplied by Congress. But it impedes the enterprise, while supplying a bunch of judicially enforced coordination rules. And those, lo and behold, are pro-competitive rules.

We can, do, and will continue to disagree about these and similar questions; and as several commenters note, the debate is inherently normative. (It has to be, because you have to have some constitutional theory of what the document is supposed to do.) But we know what arguments count, and the debate is discernibly constitutional—not political science or a flight of fancy.

If I’m a structuralist at heart, I’m also a doctrinalist at heart. I think constitutional law is more about doctrine rather than clause-bound interpretation. That’s because we need some coherent set of abstract-concrete rules that will make the Constitution work as well as it will, under a wide range of changing conditions. Most of UDC is preoccupied with doctrine, sufficiently so to test the patience even of ConLaw dorks. To understand the doctrines, you have to have some sense of what real-world problems they’re supposed to solve. E.g., Gillian (who, bless her heart, likes the doctrine stuff in UDC) mentions the obviously dumb original package doctrine: why did a bright guy like John Marshall think he needed that doctrine? Pursuing that question, UDC tries to show, tells us a great deal about the perplexities of the Commerce Clause. Again, the account won’t look like “interpretation,” as it’s conventionally understood. Again, we’ll disagree over what the doctrines ought to look like and why; and again, that debate has a normative dimension. (The question of corporate citizenship, highlighted by Rick and a big piece of UDC, is a good example.) But again, it’s a constitutional debate.

The point of these brief remarks is not to re-argue the book with Rick, Gillian, Neil, or any other commenter: that would be a very long and involved discussion. The point here is to emphasize the constitutional ground of structure and doctrine that UDC tries to cover or perhaps better, to recover. Much of that ground has been lost underneath the accumulated clutter of legal positivism, postmodern aspirations, and obsessive, clause-bound originalism. Its federalism argument aside, UDC suggests that perhaps, we should try to re-learn how to think like nineteenth-century jurists; and it tries to show what that might look like. Epic fail, perhaps; but there you have it.

Priors and Political Valence

There can’t be any “neutral” constitutional theory, nor even a “neutral” meta-theory of interpretation, for all ages. Everyone understands that. At Yale, there can’t be a constitutional theory that does not yield at least one or two right(s) to abortion. And at least in our public debate, there can’t be an originalism that says Brown v. Board was wrong. That doesn’t mean we get to make it all up; but it does mean that all constitutional theory is a child of its time. (Historicist enough for you, Jack?) The best one can do is to come clean about one’s priors and to turn the “child of its time” thought on oneself. In that spirit:

Several contributors place UDC in the contemporary constitutional federalism debate. Ernie Young’s map is very useful, and a fair sketch of the territory. Sandy Levinson notes that UDC, while obviously a conservative-libertarian tract, is orthogonal to much received conservative wisdom, in (he says) interesting ways. Both Ernie and Sandy note, correctly, that UDC is devoid of any civic-republican sympathies: it’s all exit, no voice; and all politics, especially local politics, is pathological. And both note (as do other commenters) that UDC is good for business.

(Parenthetically: Ernie’s question whether in a world of cost-free mobility, states could survive as institutionally robust competitors—or whether the system rather requires some degree of civic loyalty—is serious. I’m inclined to think that you don’t need a whole lot of loyalty and that most of the anti-competitive state practices I find obnoxious have way more to do with exploitation than with fostering civic attachment; but that off-the-cuff answer is the beginning, not the end, of yet another interesting set of questions that I sidestepped in UDC and, true to form, sidestep here.)

I don’t think the “pro-business” characterization quite captures it. I think it’s more accurate to say that UDC gives “pro-business” and “states’ rights” conservatives (this side of Ernie Young) a constitutional theory and federalism formula they can agree on. As Sandy and his comrades might say, that can’t be a coincidence, and it isn’t. But that isn’t all there is in terms of political valence (to borrow Jack’s phrase). Let me hum a few more bars, starting with the redistribution theme Jack raises:

Disagreeing perhaps with Gillian, I don’t think federalism theories are entirely parasitic on skepticism or faith in government—or on one’s preference for or against redistribution. Social Security is redistribution, and it’s really, really big. But it’s wholly national, and so it doesn’t raise any of the “cartel federalism” concerns that worry me: collusion, intransparency, the disappearance of gobs of money in intergovernmental silos, etc. That’s why I like that model.

Why don’t we adopt it more often? A large part of the answer, UDC argues, is that cartel federalism is a response to the national-level weakness of redistributive coalitions in American politics. To make this stuff go over, you have to exploit cartel federalism’s dynamics and rope constituencies of state and local politicians, provider groups, etc. into the game. Overstating the point a bit: cartel federalism is the only form of Social Democracy that’ll work in America. But we’re paying a very, very high price for it. The intergovernmental systems work very poorly; redistribution has no rhyme or reason; reform efforts come to naught; and parts of the intergovernmental apparatus (especially Medicaid) spell fiscal ruin at all levels of government. That’s not the point of UDC, but it’s the backdrop.

As for “business”: competitive federalism’s promise, to my mind, isn’t so much to check redistribution (see Social Security) but to discipline interest groups politics—a pluralist free-for-all that prominently includes business. What I’m in favor of isn’t business but commerce, free from cartel federalism’s depredations and at some distance to government(s). What I’m against is a constitutional (federalism) jurisprudence that says, in the teeth of the Constitution, “None of our business. Let Congress provide.” (Undoubtedly, the Roberts Court’s majority has “pro-business” sympathies; but they’re not supported by any constitutionally plausible theory.)

What do these features of cartel federalism have in common? I think they are a kind of political luxury good, affordable in times of affluence. But the age of affluence is over. It’s worth asking whether we can still afford our dysfunctional, upside-down federalism.

I’m almost entirely certain that the answer is “no.” I’m equally certain that we can’t get a handle on our federalism problems so long as we keep obsessing over “balance,” “block grants,” “state prerogatives,” or for that matter eighteenth-century dictionary definitions of “commerce.” And perhaps unlike some of my critics, a feel a fair bit of urgency about the matter.

Michael Greve is Professor of Law at George Mason University Law School. You can reach him by e-mail at mgreve@gmu.edu

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