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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 law.columbia.edu