Monday, June 17, 2013

Michael Greve’s The Upside Down Constitution: Parasitic Federalism and the Ambiguities of Constitutional Structure

Guest Blogger

Gillian Metzger

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

Michael Greve’s The Upside Down Constitution offers a refreshingly different take on constitutional federalism.  Whereas the Supreme Court often treats federalism as synonymous with protecting state interests and constitutional scholars regularly write in praise of cooperative federalism and federal-state balance, Greve thinks both have the Constitution exactly backwards.  On his account, true constitutional federalism is all about competition among governments and efforts to protect state interests or link federal and state responsibilities represent a fundamental inversion of our constitutional order.  Yet oddly enough, despite its novelty, the book also reinforces a well-established truism:  Federalism is a second-order concern.  At the end of the day, understandings of federalism are parasitic on underlying views about the virtues and vices of government.  Greve’s account also showcases the challenges of reasoning from and about constitutional structure, as well as the broad room left open in the Constitution for adapting federalism to meet the nation’s needs.

To his credit, Greve is open about his normative priors.  He begins the book with a discussion about the kind of federalism prospective citizens would choose if they were designing a federalist system from the get-go.  His conclusion is that they would opt for a competitive federalism arrangement, in which interjurisdictional mobility serves to discipline junior level governments and prevent them from exploiting their citizens.  Limited grants of power, in turn, prevent abuse at the national level.  Moreover, the model they would reject is cartel federalism, the approach Greve contends we have today as a matter of institutional practice.  Under cartel federalism the national government and states suppress interjurisdictional competition through expansive national regulation and joint national-state run programs.

The key precept underlying Greve’s conclusions here is that government is not to be trusted.  In his words, individuals “could put their trust in a benevolent government, but that is a high-risk assumption; if it proves wrong, the losses will mount very quickly.  It is safer, then, to assume that government will be prone to abuse.” (6)  Perhaps, but the losses from hamstringing government can mount pretty quickly too.   At a minimum, decades of scholarship on contractarian theories of justice demonstrate that citizens might rationally opt for an arrangement where government is empowered to regulate and redistribute—to the extent that it makes sense to think about citizens as making abstract choices about government structure at all.   Put differently, the choice between competitive and cartel federalism is parasitic on our underlying skepticism or faith in government; there is no way to make that choice in a normatively neutral fashion.

Most of the Greve’s book is actually devoted to demonstrating a different set of propositions:  that the framers were skeptical of government and did choose competitive federalism; that this competitive model lasted through the civil war but ultimately fell to a combined onslaught of industrialization and economic crisis during the New Deal; and that the result was the cartel federalism that continues to exist today.  Greve’s investigation of federalism case law is exhaustive, and one of the real pleasures of the book is the intricacies of his doctrinal arguments.  It takes a deft scholar to move seamlessly from analyzing the absurdities of the Supreme Court’s original package doctrine to debunking Erie to portraying seemingly innocuous multistate tax commissions as the height of state anticompetitive behavior.

Moreover, there is much that supports Greve’s claims about our federalist system.  The constitutional processes of bicameralism and presentment make enacting national legislation notoriously difficult, and the limitation of the federal government to enumerated powers is a further effort to curtail its authority.  The Constitution also significantly restricts state protectionist actions against sister states, and the federal judiciary played a pivotal role in ensuring these limits would have bite.  All of this lends credence to Greve’s competitive federalism model and historical claims.

The problem, however, is that the Constitution actually says very little about the overarching federalism system and much of what it does say can support multiple readings.  Yes, the Constitution limits Congress to enumerated powers, but as Greve acknowledges many of these powers (like the tax power) are expressly quite broad and in exercising them Congress’s authority is plenary.  Additional constraints that Greve identifies as supporting the competitive model, like the recently articulated anti-commandeering rule, are nowhere expressly articulated and are viewed by many as unjustified judicial impositions.  Yes, the Constitution protects interstate mobility and imposes important restrictions on interstate discrimination.  But these measures can also be understood as essential to preserving union, which is as much a prerequisite for a national government that regulates broadly as it is for one with a more circumscribed scope.  Critically, moreover, the Constitution makes many of its prohibitions on the states subject to congressional waiver, which hardly suggests a firm rejection of interstate agreements or more cooperative governance approaches.  Indeed, one could view constitutional horizontal federalism (as I have done) as fundamentally granting Congress control over interstate relations; alternatively, one could follow John Manning’s lead and conclude that it is mistaken to try to generate broad, free-floating federalism principles from the Constitution’s specific federalism compromises.

In short, our constitutional federalism structure is deeply ambiguous.  It contains seeds of a competitive, government-constraining model, but also grounds on which to base a more cooperative, pro-regulatory approach.  Fundamentally, therefore, federalism ends up as a matter of constitutional construction, with all branches and levels of government—along with citizens, social movements, interest groups, and the like—helping to determine our governmental structure.  Not surprisingly, this constitutional construct changes with new societal and political realities.  The result today is a system in which the national administrative state is dominant but often contains within its auspices for substantial state authority.  While that is surely not the specific shape of government that the framers envisioned, it is nonetheless quite in keeping with the constitutional structure they created; more a modern-day iteration of constitutional federalism than an inversion.

Gillian Metzger is Vice Dean and Stanley H. Fuld Professor of Law and Co-Director, Center for Constitutional Governance at Columbia Law School. You can reach her by e-mail at gmetzg1 at