For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)
Richard M. Re
Neil Siegel has written a grand book on collective action problems and their pervasive role within constitutional law. The volume of course includes thorough discussion of topics like the Commerce Clause where collective action logic is familiar, but it also journeys quite a bit farther, reaching such diverse matters as interstate compacts, national security, federal court jurisdiction, and the presidential veto. Methodologically, the book deploys historical, game theoretical, doctrinal, and many other tools. And, perhaps most compellingly, the book also situates “the Collective-Action Constitution” alongside other constitutions, such as “the Reconstruction Constitution” (p.357) that protects individual rights. Recognizing multiple constitutions allows the book to pursue its thesis without losing sight of other foundational legal values within the legal system. It is hard to capture how wide-ranging, inquisitive, and nuanced this project turns out to be. If you want to better understand virtually any structural issue in constitutional law, this book can help.
The book’s “core
claim is that the primary structural purpose of the US Constitution is to
empower the federal government to solve [certain] collective-action problems”
(p.5). One might think that a “primary structural purpose” of the Constitution is
an historical fact relating to the document’s creation. This purpose might then
propel a straightforward originalist argument regarding the content of constitutional
law. But Siegel disclaims that simple view (p.31): “Because this book . . .
offers a nonoriginalist account, it is important to the project that the
original purpose is also the Constitution’s primary traditional and contemporary
structural purpose.” What is a “contemporary structural purpose”? Siegel immediately
continues: “The book would not endorse this original purpose as both
descriptively accurate and normatively attractive if it had proven over time to
be damaging to the country” (id). This passage appears to involve not only purpose
in the sense of intention or aspiration (e.g., “the bird’s purpose is to
scavenge for food”), but also purpose in the sense of teleology or
functionality (e.g., “the purpose of the bird’s wing is to enable flight”). So
to be a “contemporary structural purpose,” it seems that a principle or
practice must be beneficial. Siegel elsewhere emphasizes that “American society
will be better off on balance” if “the account offered here is adopted,” as
compared with stark alternative approaches that would “severely restrict
federal power” (p.27).
So, what kind
of thing is the “collective-action constitution,” or CAC? Is it a legal principle?
An historical claim? A prescriptive argument rooted in good policy? Siegel’s
answer appears to be: All of the above. In perhaps his most sweeping remark on this
topic, Siegel argues: “To a significant extent[,] the US Constitution is the
Collective-Action Constitution—both because a collective-action account
possesses significant descriptive power originally, traditionally, and today,
and because it is normatively attractive” (p.6). This assertion appears to trade
on Siegel’s “pluralist approach to interpretation” (p.26). There are many
inputs into constitutional meaning, and virtually all of them, individually and
together, support the CAC. Siegel’s various claims about history and good
policy thus contribute to his ultimate theoretical goal: to derive conclusions
about the right way for courts and other actors to understand constitutional
law. This is a “big tent” mode of legal argument, one reminiscent of judicial opinions
and legal briefs. Siegel accordingly takes famous court rulings as his guide,
noting for instance that “[Chief Justice] Marshall’s method guides the
structural theory offered in this book” (p.27).
I worry,
however, that Siegel cannot persuasively defend his strong prioritization of collection-action
problem-solving as the Constitution’s “primary” structural purpose. There are many
competing interests at play in a normative or practical system as complex as
the Constitution, making any categorical prioritization of one of those
interests inevitably oversimple. True, Siegel points out that the Articles of
Confederation generated collective action problems, and the Constitution was
intended—had the “purpose” of—solving them. This original desire to increase
the government’s ability to solve collection action problems seems to
underwrite Siegel’s conclusion that that those problems are the Constitution’s
“primary” structural concern. As he puts it (p.39), “it is instructive to ask
why the Constitutional Convention took place.”
Yet the
framers’ choice to go so far and no farther reveals a balance or tension of
competing interests, and no one of those interests is categorically primary
over the others. While the Articles of Confederation balanced these interests
in a way that paid undue attention to collective action problems, an excessive
determination to solve those same problems would itself be problematic, causing
competing interests such as federalism and the separation of powers to be given
short shrift. Because of these tradeoffs and hard choices, Siegel’s initially categorical
prioritization of the collective-action constitution ultimately gives way to
something like a balance of competing interests. For instance, the book notes
that “this framework imposes a presumption, which can be rebutted” (p.38). In
other words, assertedly secondary structural concerns, such as federalism and
the separation of powers, can sometimes triumph over the need for collective
action. Siegel thus fashions a grand “rule” with important “qualifications”
(id.). But, at the level of abstraction we are discussing, a more overt
balancing approach seems preferable. Recognizing roughly equal and competing
interests would help to preserve the compromise that the framers struck and surface
the difficulty of judging contests of incommensurable value.
Siegel might
respond that any shortcomings in his historical argument are made up for by the
pragmatic appeal of solving collective action problems. Yet collective action
problems, while serious, aren’t the only problems that the United States faces.
The framers, for instance, worried about too much collective action,
such as when a populist tyrant seizes the reins of all government. (If your
least favorite political actors ever take hold of the federal government, that
ancient worry will become newly salient.) Once we remember that the world has
more to worry about than just collective inaction, it becomes unclear how
Siegel knows that structural constitutional law is most beneficial when it
generally prioritizes collective action problems above all others. Whether to
prioritize this or that interest seems instead to turn on principles less
abstract than the “core claim” that Siegel aims to prove. We might want to ask
about specific constitutional texts, institutional developments, urgent crises,
and so forth. Rather than debate which general prioritization is marginally
more compelling than the alternatives, we can more productively move down one
or two levels of abstraction.
I would like
to outline another way of thinking about what the CAC is. Instead of following
Siegel in combining legal principle, historical fact, and prescriptive
argument, we might hew closer to the ambitions of empirical political science
or sociology. Collective action problems are real, but the law can and
sometimes does ignore them—even foster them. When these problems fester, there
are costs; when they are solved, there are benefits. The point of the CAC, on
this view, is not to prescribe so much as to understand. It is to get a better
handle on the available options that legal actors have before them, including the
options’ various consequences and potential interactions. This way of thinking
about a legal system can be framed as an inquiry into the law’s underlying
structure. It maps the terrain on which political and legal actors pursue
their projects, encounter opportunities or pitfalls, and come into conflict. This
vision is humbler than Siegel’s, for it does not lead to pat prescriptions for
courts but only practical choices. Yet it is also more ambitious, for it speaks
to something deeply, almost inevitably, true about the legal system. Like the
law of gravity and other natural laws, the CAC is just a fact about our world.
We must reckon with it wherever we are, even if it does not purport to tell us where
to go.
Understanding
the CAC as part of the law’s underlying structure is consistent with the lion’s
share of Siegel’s extensive and exquisite analysis. First, we should expect
that the constitutional framers grappled with—indeed, almost had to
grapple with—matters of underlying structure. And Siegel shows that that is
certainly true with respect to the CAC. Second, modern political science
scholarship can help us better understand the practical dynamics that give rise
to collective-action problems, regardless of whether or how well the framers theorized
them. So Siegel has good reason to devote an entire chapter of his book to game
theoretical tools largely borrowed from political science and economics—what he
calls the “New ‘Science of Politics’” (p.57). Finally, our legal system will
either be sensitive to pertinent issues surrounding collective action, or else
experience serious repercussions when it is not. Here, too, Siegel’s analysis is
apt. Over hundreds of pages, he documents how and where the legal system tracks
the CAC as well as other, alternative values, most especially constitutional
rights. Siegel even acknowledges that efficient collective action is malign when
the law is gripped by “terrible politics” (p.54), as occurred for example
during the nation’s many decades of legally sanctioned enslavement. This
acknowledgement, too, is consistent with the idea that the CAC is not a
prescription to endorse but rather a set of realities to navigate—for good or
ill.
Yet there are
places where greater attention to matters of underlying structure would have
been illuminating. Consider the final chapter of Siegel’s book, which addresses
a concern that looms over the entire project. For much of the book, Seigel
praises Congress’s ability to solve collective action problems, insisting for
example that the federal courts defer to legislative efforts in this vein
(p.288). Yet we all know that Congress is adversely affected by its own collective
action problems, partisan gridlock, and other democratic maladies. Siegel’s
closing chapter accordingly recognizes that Congress “is often not up to the
task” of “solv[ing] collection-action problems” (p.448). Indeed, he contends
that the problem of “congressional inaction” is “probably the single-greatest
defect of the Constitution in modern America” (id.). Siegel therefore argues
for several reforms, such as curtailing the filibuster, that would enhance
Congress’s ability to enact majoritarian solutions. In the meantime, however,
what does the CAC tell us about how our government does or should function? If
we viewed the CAC as an account of the law’s underlying structure, we would
regard the rise of executive governance and judicial power as the natural
result of institutional choices that have rendered the legislature inactive. These
developments would be cast as logical, understandable, and even beneficial under
the circumstances. By contrast, Siegel identifies several “partial workarounds,”
including “presidential governance” (pp.472–73) and “statutory updating” by
courts (p.478). He then throws cold water on these “second-best solution[s]” by
insisting that the president (p.473) and courts still “possess far less
democratic legitimacy than Congress” (p.477). In these passages, the ideal of
congressional action seems to prevent a full reckoning with congressional
gridlock and its practical consequences for governance.
Even if we
viewed the CAC as having some prescriptive content, in the sense that courts
ought to foster solutions to collective action problems, Seigel’s criticisms of
the status quo are not entirely convincing. Take his critique of the “major
questions doctrine” in administrative law. After acknowledging that his theory
“might be thought to support” that doctrine, Siegel argues (p.476) that courts
should decide the scope of legislative delegations to agencies based on
“ordinary statutory interpretation focused on the text and purpose of the
statute at issue,” not a special “clear-statement requirement.” But that
legalistic response does not reflect the practical logic of collection action
or any actual institutional dynamics. The presidency has considerable
democratic legitimacy but can also fall prey to democratic pathologies, such as
unduly favoring the interests of the president’s own party and its membership (see
p.439). So, when the executive branch operates without clear legislative support,
there is reason to worry that overall social welfare will suffer. In this
context, the sort of deference that Siegel would afford to an active
legislature is no longer appropriate. The judiciary might then step in to
defend the CAC by asking whether (or to what degree) a particular executive
policy would garner support if put before Congress. If the judiciary doubted
that the policy at issue would receive majority legislative support—perhaps
because it is a “major question” of ongoing debate—then collective action
reasoning would seem to disfavor the executive policy. This version of the
major questions doctrine would then stop the president from seizing too much
authority. More precisely, it would help prevent the president from pursuing
policies that advance his own partisan interests at the expense of overall
social welfare.
Siegel’s
project even points, however unintentionally, toward a more systematic defense
of the Supreme Court’s recent behavior. That is because CAC resonates with broader
trends in the law, particularly the recent rise of both executive unilateralism
and judicial skepticism of administrative action. The executive is largely
characterized by unitary, elected leadership—an invigorating trait that recent
case law (like Seila Law v. CFPB) has only intensified. And the Supreme
Court, while an unelected committee, is still a small body with a clear
majority rule for its own decisionmaking. These institutional features allow
the presidency and judiciary to act with dispatch, relative to Congress.
Moreover, the way that these institutions now interact plays to their relative
ability to solve collective action problems in majoritarian ways. Again, presidential
governance often channels nationwide preferences, thanks to the president’s
unique status as a nationally elected officeholder; but the executive can also fall
prey to partisan biases, yielding programs that benefit the president’s party
at the expense of the general welfare. When such biases take hold, an
independent or politically adverse judiciary can step in, effectively defending
the overall democratic will. The more that an inert Congress recedes into the
background, in other words, the more naturally the executive assumes the role
of lawmaker—with the courts exercising a displaced veto power.
These trends
do not flow from, and may well be inconsistent with, conventional legal
reasoning. But to understand the new roles assumed by presidents and justices,
we cannot limit ourselves to doctrinal reasoning or prescriptions for courts to
obey. We must instead mine the deep practical relationships that underlie legal
doctrine and related institutional behavior. If we take up that admittedly
daunting task, aided by Siegel’s book, a surprising discovery awaits. Many
features of current practice, from the major questions doctrine to the rise of
executive unilateralism, are readily understandable—perhaps even justifiable—once
we view the CAC as part of the law’s underlying structure.
Richard M.
Re (RRe@law.virginia.edu) is the Elizabeth D. and Richard A. Merrill Professor
of Law at the University of Virginia School of Law.