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As a work of constitutional analysis, I don’t know what to make of
Michael Greve’s book. It seems to consist of criticisms of Supreme Court
opinions and doctrines (championed by both sides in the federalism debates),
but is essentially silent on what he thinks the various constitutional
provisions relating to federalism mean, which is what constitutional
interpretation is all about. It is fairly clear what kind of federalism Greve
thinks would be desirable, but it is far from clear whether he thinks that kind
of federalism is constitutionally mandated, or whether competing versions of
federalism should be treated as unconstitutional.
Despite the word
“Constitution” in its title, Greve’s book is better understood as a work of
political science than of constitutional law. Here it succeeds brilliantly. After
reading this book, surely no one will use the term “states’ rights” as a
shortcut for constitutional federalism. Greve’s favored version of federalism,
competitive federalism, is primarily a structural restraint on state
governments, rather than an empowerment. And no one will again make the mistake
of thinking that national legislation necessarily derogates from the authority
of state governments. Just as regulation often benefits some businesses –
usually the large and well-connected – at the expense of other businesses,
national legislation often enables state governments to engage in taxation and
regulation that would be counterproductive in an environment of competitive
federalism.
Greve’s insights thus enable
supporters of various policies to choose more intelligently what mix of
national and state lawmaking and administration they should favor, depending on
their goals. A reader of Greve’s book might well come to the conclusion that
the best political course is to be opportunistic about federalism – as both
political parties are – rather than to strive for some kind of consistency.
(That, of course, is the opposite of a constitutional theory.)
But it seems to me that, whether one leans more to the free-market, limited government side, as Greve does, or to the redistributionist regulatory state, as some of his critics do, there are two aspects of Greve’s competitive federalism that should command more widespread agreement.
First, Greve’s federalism is more conducive to a diversity of policies. Ideologues who think their own views are simply best for everyone will have little use for Greve’s federalism, but those who think that there are a variety of reasonable approaches to policy questions will applaud. Let California be a high-tax, burdensome-regulation state, let Texas be the opposite, and we can see what the relative results are for the common good. Which ends up with better schools, more employment
opportunity, more immigration, and rising incomes? When policies touch on
moral-cultural matters, moreover, Greve’s federalism enhances freedom by
ensuring that when Americans vote with their feet, there will be more than a
dime’s worth of difference in the places where they may choose to settle.
Second, Greve is surely correct that it is wrong by any measure to allow individual states with idiosyncratic views to compel the entire nation to conform, through such
mechanisms as mass tort litigation or regulation based on out-of state conduct.
Where markets are genuinely national and the costs of differentiation among
states insurmountable, it is probably better to nationalize standards, rather
than allow fifty tails to wag the dog. There are occasions when national
majorities should rule the entire nation and occasions where the various state
majorities should rule within their own states, but there are probably no
occasions where an individual state majority should rule the entire nation.
Michael W. McConnell is Richard & Frances Mallery Professor, Stanford Law School,
Director, Stanford Constitutional Law Center and Senior Fellow, Hoover Institution. You can reach him by e-mail at mcconnell at law.stanford.edu