E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I’m
grateful for the opportunity to discuss Michael Greve’s extraordinary book, The Upside Down Constitution.The book is both big and dense (in a good
way), and it’s packed with more ideas than I can possibly do justice to
here.I’d like to focus on how Michael’s
book both reflects and contributes to a change in thinking and argument about
federalism.I then make a couple of more
substantive points about how Michael’s vision relates to other prominent
positions on federalism’s ends and means.
I met
Michael years ago at an AEI conference that he and Richard Epstein organized on
federal preemption of state law.After trying
to defend state autonomy on the academic conference circuit to mostly liberal
audiences, I heaved a sigh of relief:“This will be great—a bunch of conservatives who actually care about
states.”I couldn’t have been more
wrong.Everyone but me was for broad
federal preemption, and my pleas that state law should be respected on
federalism grounds fell on deaf ears.Many participants were members of the defense bar, used to asserting
federal preemption to quash plaintiffs’ state-law tort suits; their positions
reflected their clients’ interests.That “Big Business federalism” dates to the late nineteenth century,
when interstate businesses argued for broad dormant Commerce Clause limits on
state regulation, substitution of general commercial law principles for state
common law under Swift v. Tyson, and restriction
of national regulation under a narrow reading of the affirmative Commerce
Clause.
Michael and
Richard provided an intellectual underpinning for these positions transcending
material business interests.The Upside Down Constitution is the
culmination of that project.It takes
many of the same positions as Big Business federalists—strong dormant Commerce
Clause, broad federal preemption of state law, reject Erie and return to Swift,
limited national enumerated powers—but links them to a well-developed theory of
“competitive federalism.” Federalism, on this view, is not about protecting the
states, empowering the national government, or maintaining some sort of
balance; it is about maximizing the welfare and liberty of individual citizens
by forcing competition among governments.One critical contribution is to show how “cartels” of states may use
national institutions to suppress interstate competition by imposing a uniform
solution congenial to entrenched interests.
My primary
point is simply to appreciate the many positions now enriching our federalism
debates and the extent to which they transcend left-right political divisions.When I started in the federalism business,
conservatives and liberals thought they knew where they stood:Progressives identified federalism with
racial segregation and resistance to beneficial regulation, and they lauded
national solutions to society’s problems.Conservatives pushed federalism to
limit intrusive national regulation and maintain contact with the Founders’
vision.Now things are complicated.Progressives like Heather Gerken argue that
state autonomy should be protected in order to allow national minorities to
“dissent by deciding,” and Robert Schapiro advocates “Blue State federalism”
allowing some jurisdictions to protect human rights more broadly than national
norms.Michael Greve and other
libertarians, on the other hand, pair their enthusiasm for limits on Congress’s
regulatory powers with broad preemption doctrines limiting state governments’ interference
with the free market.My own work has
argued that federalism checks national power and protects state autonomy
largely without regard to the political valence of government activity at
either level.
Our federalism
debates, in other words, are maturing; they are outgrowing the traditional
conservative/liberal dichotomy.State
autonomy is not just for Neanderthals anymore, and conversely people on the
political right (like Professor Greve) will often support national power and
limits on states.While scholars who
focus on federalism largely recognize this, it remains surprising to many in
the broader academy and among reporters who cover the Supreme Court.It was big news (in law geek land, at least) this
past Spring when conservative and libertarian law professors filed a brief
arguing that the national Defense of Marriage Act was unconstitutional on federalism
grounds—but it shouldn’t have been.Michael’s
fascinating book should help put a last nail in the coffin of the idea that
federalism questions have a reliable left-right valence.We can then get on with a more interesting
set of conversations.
I want to
use my remaining space to suggest one such conversation, and in particular to locate
Michael’s work on a conceptual map suggested by Albert Hirschman’s seminal work
on Exit, Voice, and Loyalty.Hirschman focused on exit and voice as
alternative responses to dissatisfaction among citizens of a jurisdiction or
consumers of a product.One can exit by
voting with one’s feet and moving to another jurisdiction or switching to
another brand; alternatively, one can exercise voice by complaining to customer
service, working for change within the system, and voting with your, well,
vote.Michael’s book is mostly about exit
and the salutary effect of mobile citizens choosing jurisdictions with an
optimal mix of policies as well as the incentives provided to prudent states by
the threat of exit.Professor Gerken’s work, by contrast, is all
about voice—the democracy-enhancing effects of federalism that offer policymaking
opportunities to minorities and the mechanisms of “uncooperative federalism”
whereby state officials exercise voice within national cooperative federalism
schemes.
Both these accounts
have relatively little to say about Hirschman’s third category—loyalty.For Hirschman, loyalty is the reason that
dissatisfied people stick with a jurisdiction or product even though, at the
moment, it may not be in their immediate interests to do so.In this sense, loyalty encourages voice by
discouraging immediate exit.The critical
question is whether the states remain viable objects of loyalty in the twenty-first
century.We have come a long way from
the days in which Robert E. Lee chose Virginia over the Union, and some
prominent scholars—such as Edward Rubin and Malcolm Feeley—deny that modern
Americans identify with their states at all.In any event, federalism theorists emphasizing voice ought to assess how
much the dynamics of uncooperative federalism and state-based dissent rely on
notions of loyalty to retard exit.And I
hope that Professor Greve will explore the possibility that in a frictionless
world of competitive exit, state governments will have insufficient staying
power to play their role as effective competitors.If that turns out to be a real worry, then
even competitive federalists will need to attend to the states as states—and
possibly, heaven forbid, even notions of balance.
Ernest A. Young is Alston & Bird Professor of Law at Duke Law School. You can reach him by e-mail at young at law.duke.edu