Wednesday, June 19, 2013

Our Vacuous Constitutional Text as Under-Specified Agreement

Guest Blogger

Rick Hills

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

Both "federalism" and "individualism" are vacuous terms, but many of us are aware only of the latter’s emptiness.  We mostly recognize that declaring one’s support for "individual rights" says almost nothing informative about one’s actual beliefs: An "individualist" could be a devotee of Rawls, Hayek, Charles Reich, Bakunin, the American Constitution Society, or the Federalist Society—in short, a follower of just about any political or legal theory one pleases.

 It is different with "federalism":  Scholars and laity alike still write about "federalism" as if it were a unified concept that one could promote "all the way down," protect through the political process, "balance" against nationalism as an undifferentiated quantity, or otherwise treat as a single coherent idea rather than as a congeries of mutually warring ideologies.

To his credit, Michael Greve aims to change this naïve view of "federalism" in The Upside-Down Constitution.  In his telling phrase, ""federalism is a ‘they,’ not an ‘it’" (Page 4).  There are different kinds of "federalism," and they all cannot be defended simultaneously, because they are mutually inconsistent with each other.  Praising them all is saying nothing usefully specific about any.

Greve’s negative case against the general promotion of "federalism" writ large is overwhelmingly powerful.  Unfortunately, Greve does not make an equally powerful argument that the constitutional text points to the more specific version of federalism that he favors, a version that he calls "competitive federalism."  According to Greve, "competitive federalism" is "the Founder’s constitutional child" while cooperative federalism is "a bastard" (page 89).  This claim about constitutional text is unconvincing.  The Constitution’s text, it turns out, is just as vacuous as concepts like individualism and federalism. 
This ambiguity is not an accident.   As I suggest below, the constitutional text is an under-specified agreement -- the product of tense collaboration between western agrarians and eastern capitalists who disagreed on precisely the questions that Greve claims the Constitution resolved.  Neither the agrarian nor the pro-corporate contribution to the Constitution was dominant or recessive:  The question of the Constitution’s meaning is a matter of post-enactment nurture, not textual nature.   

Greve aims to defend one specific version of "federalism" against other contenders – a version that he calls "competitive federalism" – as the best reading of the actual written Constitution.  "Competitive federalism" views subnational jurisdictions as a way to solve "the government monopoly problem"":  By forcing subnational governments to compete for a mobile citizenry, federalism constrains each such government’s power to exploit those citizens.  Such a view of federalism requires the national government to reserve certain topics of regulation exclusively to subnational entities, reserve others exclusively for itself, and abstain generally from handing out subsidies to subnational politicians. 
Greve does not purport to offer a robust normative defense of "competitive federalism" as an ideal of government.  Instead, he wants to argue that competitive federalism is, as an interpretative matter, Our Federalism:  If one reads the actual terms of the U.S. Constitution as drafted in 1789, the ideals of competitive federalism leap out as the most plausible functional theory behind the structure.  Although he disavows such a project, Greve is in fact trying to find what the late Ronald Dworkin called "interpretative fit":  Greve is trying to fit function to form, attributing to a set of bare rules some normative theory about what those rules are best suited for achieving. 
The problem with this effort at constitutional reverse-engineering is that the written Constitution is just as vacuous as the general concept of "federalism" that Greve rightly deplores.  The document was an under-specified agreement between two factions of revolutionaries – anti-corporate agrarians and pro-corporate nationalists – that left completely unresolved in the written document the degree to which subnational units could block or discriminate against non-resident owners of investment capital.  This ambiguity was no accident:  These factions left the text intentionally blank because neither group had the power to control both the drafting and the ratifying process.  The pro-corporate nationalists (who called themselves, misleadingly, "Federalists") controlled the drafting process, while the anti-corporate agrarians (who were called "Anti-Federalists" by their enemies but who preferred the term "Republicans" or "Old Whigs") controlled the ratifying conventions in key states like New York, Massachusetts, and Pennsylvania.   Because neither could get what they wanted, they agreed to leave the document a blank as to the terms of their disagreement.
This ambiguity poses a problem for Greve’s project of defending "competitive federalism," because one of the critical issues about which agrarians and corporate nationalists disagreed was the terms under which subnational jurisdictions could compete for investment capital.  Key terms in the written document left utterly unresolved whether and to what degree the federal Congress or courts could protect owners of investment capital from discrimination or exploitation.   To placate the agrarians, the corporate nationalists deliberately refrained from giving Congress the power to charter corporations in the document that they sent to the ratifying conventions.  Key terms defining mobility and corporation’s access to federal courts such as the term "citizen" in Article IV, section 2 and Article III, section 2 were left wholly undefined.  Limits on retroactive legislation inscribed in Article I, section 10 did not define what a "contract" was or specify whether federal rather than state courts would fill such blanks.

The resulting document is consistent with Greve’s theory of competitive federalism – but it is equally consistent with Andrew Jackson’s and Roger Taney’s theory of populist federalism.  The latter specifically rejects competitive federalism as applied to investment capital.  For the Jacksonians, the U.S. Constitution left subnational jurisdictions free to discriminate against non-resident corporations, excluding them altogether from a jurisdiction’s territory or conditioning their presence on payment of special taxes.  The idea was to let western farmers milk eastern capitalists who owned railroads, insurance companies, and banks in return for the privilege of doing business within the state.  This interpretation of the Constitution gave those farmers the power to extract locational rents from owners of investment capital to pay for schools, roads, canals, and general tax relief – a distributive theory that made policy sense to a faction that despised "capitalists" (meaning owners of investment and finance capital) but lauded "producers" (meaning owners of household-scaled firms like farms).  Agrarians did not want to destroy farmers’ "monopoly power" over their swatch of western land:  They wanted to protect such power, so corporations seeking access would have to pay the farmers’ tolls. 
Nothing in the text of the Constitution forecloses the Jacksonian version of the Constitution, which was the dominant reading of that document until the 1880s.  By construing narrowly terms like "citizen" in Article IV, section 2 and "commerce" in Article I, section 8, key decisions from the Taney and Waite Courts like Bank of Augusta v. Earle, 38 U.S. 519 (1839) and Paul v. Virginia, 75 U.S. (8 Wall) 168 (1869) ensconced this version as the law of the land, rejecting Greve’s theory of competitive federalism.    The Fuller Court reversed or qualified these decisions, favoring Greve’s vision – but this change of course had nothing to do with being faithful to the original vision of the Constitution inscribed in its text.  Instead, the Fuller Court was just choosing a broad reading to advance a particular policy vision of pro-corporate Republicans who dominated the Court after the Civil War as thoroughly as anti-corporate Democrats dominated it before the Civil War. 
Greve, in short, cannot show that the written Constitution distinctively embraces competitive federalism.  At most, he can show that the Fuller Court’s vision of the Constitution as competitive federalism is not foreclosed by the text of the Constitution.  But so what?  Diametrically opposed visions of federalism like the Taney Court’s populist and anti-corporate vision are equally compatible with constitutional text, because constitutional text is a blank cipher.  In fact, lots of different visions of federalism – agrarian, "cooperative," competitive, etc. – are consistent with text, because the text of the 1789 Constitution no more resolves the nature of federalism than the text of the 1868 Constitution resolves the nature of individualism.  It turns out that, when factions bitterly disagree about important concepts but agree on continued co-existence within a single regime, they tend to draft organic documents that fudge important matters, leaving them for resolution later.

None of this is to say that competitive federalism is not a good idea. It is just to say that it is not the idea that We the People have ever unambiguously adopted.

Roderick M. Hills. Jr. is William T. Comfort, III Professor of Law, New York University School of Law. You can reach him by e-mail at roderick.hills at

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