The Collective-Action Constitution and Comparative Federalism

Guest Blogger

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

Erin F. Delaney

Neil Siegel’s excellent new book, The Collective-Action Constitution, argues the U.S. Constitution must be understood in light of its structural purpose: its foundational attempt to articulate a system of shared and divided powers.  As foreshadowed by the title, Siegel’s claim is that the coordination and cooperation challenges that define collection-action problems drove the structure and enumeration of centralized power(s) under the 1789 Constitution, and that acknowledging and explicating these dynamics can help resolve interpretive questions.  I find much of Siegel’s account persuasive and look forward to engaging with the implications of his theory for U.S. constitutional law.  For purposes of this contribution, I will focus on its synergies with the current zeitgeist in broader federal theory and comparative federalism and raise a few questions for future work.

Whether a function of the past thirty years of growing secessionist movements in western democracies (e.g., Quebec, Scotland, Catalonia), various efforts to solidify or create functional federal systems (e.g., Ethiopia, Iraq, Sudan), or even the pressures of Brexit (e.g., rising euroskepticism, Frexit), scholarly attention has turned to that which sustains or preserves federal union.  A rich vein of theoretical and comparative scholarship is being developed that focuses on mechanisms and justifications for federal solidarity (alternatively, loyalty or fidelity).  Siegel’s book naturally does not engage with this mostly non-U.S.-based literature, but it dovetails with it in interesting ways.

To take one example:  In her pathbreaking 2021 book, Dynamic Federalism, University of Antwerp Professor Patricia Popelier suggests that the best way of understanding and comparing federal systems (or, in her terms, multi-tiered systems) is to identify and measure metrics of autonomy and cohesion.  She defines autonomy as both “the ability of [states] to organize themselves and make their own decisions, and to secure their interests in central decision-making.”  Cohesion, in turn, is securing “the integrity of the entire system by linking all tiers through mutual respect, common interest, and solidarity.” (p. 52)  In order to measure the autonomy/cohesion of the system, Popelier looks both at the substantive allocation of powers at various levels and the ways in which those powers are granted (exclusive/concurrent) and exercised (exclusive/cooperative).

Putting these two books into dialogue shows how Siegel makes an extremely useful contribution to broader federal theory, while also uncovering areas for further exploration.   Siegel’s collective-action theory goes far in predicting at least some of the powers we might expect to be allocated to the central level in a federal system (understanding that there will be different political issues at stake in different cultural contexts).  As Popelier identifies, certain substantive areas—security, economic and monetary union, citizenship—are usually exercised at the federal level across federal systems.  Collective-action theory works to explain why and (perhaps) to supply a normative justification.

Siegel’s theory fares less well from a first-principle perspective in explaining how those powers should be exercised.  In the U.S. context, he provides an answer to the commandeering conundrum:  Congress should be allowed to commandeer in Pareto collective-action problems, but not in cost-benefit collective-action problems.  In other words, commandeering would be acceptable when no state would be worse off by the federal legislation, but not when the federal action is nationally welfare improving, but some states are losers.  He argues that “because [in the latter context] some states would regard themselves as worse off if collective action succeeded, commandeering, which is especially coercive of states, should have been presumptively unavailable to Congress” (p. 207).

If Congress is properly authorized to act in contexts of cost-benefit collective action problems, why shouldn’t the “losing” states be expected to cooperate and fulfill Congress’s aims?  Siegel’s pragmatic answer rests on an unarticulated value judgment prioritizing state autonomy over cooperation.  But that weighting decision—to value state autonomy over, in Popelier’s words, state cohesion—is itself not inherent to “federalism”; it is a culturally contingent choice.  It is of course understandable why Siegel would make this choice in the U.S. context: historically, state autonomy has been prioritized, and the language of cooperation, good faith, solidarity, and loyalty is largely missing in the U.S. national constitutional (and political) discourse.  It is not clear, however, that the constitutional text demands this result.

Drawing on the comparative federalism literature, Ruth Mason and I have argued that federal membership (including states’ participation in Congress and the pooling of power at the central level) and federal citizenship (and its complement, free movement) give rise to what we term “solidarity obligations.”  These obligations, including a duty to redistribute and duties not to harm or discriminate, contribute to the ongoing maintenance of the federation and, we contend, are at play in Supreme Court decision-making.  In our article, we advocate for more attention to state solidarity, but we don’t make a claim about whether or when state solidarity should outweigh state autonomy.

Taking the comparative insights seriously, however, puts sharper focus on this question of weight—does the U.S. Constitution require a privileging of autonomy in the way Siegel supposes in the commandeering context?  It is here that Siegel could expand his work by engaging even more deeply with the 1868 Constitution and the ways in which the Reconstruction Amendments may affect the operation of the Collective-Action Constitution.

Siegel does a beautiful job outlining the “individual-action rights” that the Reconstruction Amendments protect, while noting that the Collective-Action Constitution makes a secondary explanation for “antidiscrimination commitments”.  But perhaps there is more to the Fourteenth Amendment than he acknowledges.  The Fourteenth Amendment not only changed the approach to protecting rights, it may also have changed Our Federalism in ways that implicate how we cash out the Collective-Action Constitution.  For instance, does the creation of national citizenship as the touchstone for individual membership in the Union reinforce the federal solidarity structures of the constitution to more clearly prioritize structural antidiscrimination commitments?  Do (or should) the implications of the ratification process, Texas v. White, and discussions of the legitimacy of secession itself affect our federal balance between autonomy and solidarity?

If one accepts that Congress can resolve cost-benefit collective action problems in certain substantive areas, and one understands the Fourteenth Amendment to redress the balance between autonomy and cohesion/cooperation/solidarity in favor of the latter, then commandeering need not be (and should not be) presumptively unavailable.  Assuming states’ commitment to an overarching goal of maintaining the federal union, as the Fourteenth Amendment does, the federal “relational contract” generates obligations to cooperate within an expanded timeline, where loss and benefit are tallied over decades (or centuries) rather than in discrete transactions.

The Collective-Action Constitution is a book that should be read at home and abroad.  Its insights go well beyond the U.S. Constitution:  It makes a clear contribution to federal theory and will greatly enrich comparative debates.  James Madison, the first scholar of comparative federalism, would be proud.

Erin F. Delaney is the Leverhulme Professor of Comparative Constitutional Law at UCL.  You can reach her at e.delaney@ucl.ac.uk.