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.