Balkinization  

Thursday, June 20, 2013

Constitutional Theory and Political Science in Michael Greve’s, The Upside-Down Constitution

Guest Blogger

Michael W. McConnell

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

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

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