The Collective-Action Constitution and the Community of Legal Scholars

Neil Siegel

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

In The Collective-Action Constitution, I use what I have learned in law, history, political science, and economics to offer a broad, deep theory of the U.S. Constitution’s federal structure.  I argue that the Constitution’s primary structural purpose, both originally and today, is to empower the federal government to solve collective-action problems for the states and to prevent the states from undermining those solutions or causing such problems.  That main structural purpose is reflected in, and reinforced by, Chief Justice Marshall’s two holdings for the U.S. Supreme Court in McCulloch v. Maryland, 17 U.S. 316 (1819), that (1) Congress may create a national bank, thereby facilitating the solution of multi-state collective-action problems; and (2) states may not tax it, thereby preventing states from interfering with those solutions or creating collective-action problems. Any faithful account of what the Constitution is for and how it should be interpreted, I contend, should include that main structural function.

In a fundamental—albeit not complete—sense, the U.S. Constitution is the Collective-Action Constitution.  If Americans do not recognize that truth, I maintain, government cannot adequately address the sobering problems facing the U.S. today.  Examples include foreign aggression, unlawful immigration, terrorism, nuclear proliferation, inadequate access to health care, climate change, pandemics, opioid addiction, gun violence, racism, other bigotry, income inequality, and political extremism. 

I thank Professors Jack Balkin and Erin Delaney for organizing and participating in this symposium on the book.  I also thank Professors Jessica Bulman-Pozen, Guy-Uriel Charles, Tara Leigh Grove, Richard Re, and David Strauss for their characteristically smart, generous, and constructively critical contributions to the symposium.  Reading their posts has been a humbling experience, and not only because of the eminence of the authors.  Their insights remind me that the more I study the U.S. Constitution and judge-made constitutional law, the more aware I become of how much I have to learn about what one of my law teachers, Professor Robert Post, and I once called “our indispensable and yet ultimately mysterious Constitution.”  I worked on the book for more than five years, wrote almost five hundred pages (after cutting more than 30,000 gratuitous words), and ultimately deemed relevant many more provisions, principles, precedents, ideas, and debates than I had initially imagined.  Yet, as I note in the Conclusion, I largely neglected important subjects that are also relevant to the structural account offered in the book, including personal jurisdiction, state sovereign immunity, and state secession.

Some symposium contributors usefully underscore additional subjects that are pertinent to a collective-action account of the Constitution.  For example, Professor Bulman-Pozen emphasizes the centrality of the modern administrative state to the mission of the Collective-Action Constitution.  She is right that I did not adequately pursue that topic.  As Professor Balkin implies, however, my emphasis on Congress’s primary role in solving multi-state collective-action problems is intended to include a defense of what he calls “Congress’s construction of the administrative state.”  And as Professor Bulman-Pozen notes, the book criticizes the Court’s major questions doctrine for making it even harder for the Congress that wrote the laws in question—not the current Congress, as Professor Re appears to suggest—to provide for the solution of multi-state collective-action problems over time by using broad language that delegates authority to expert agencies.  It is hard enough for Congress to solve such problems given today’s politics; the Court’s doctrine, including its overruling of Chevron, adds additional impediments to collective action.  I therefore conclude the book by cautioning the federal judiciary “not to substantially restrict federal authority in the years ahead, whether through constitutional-law rulings concerning congressional power or administrative-law rulings regarding agency power.”  

Given the historical forces that have produced an ideologically and affectively polarized national politics and constant razor’s-edge elections, I agree with Professor Grove that restoring Congress’s key role in the constitutional scheme will require much more than my reluctant suggestion to abandon the legislative filibuster in the Senate.  I appreciate her reminder of the work that she, Professor Vicki Jackson, and I have done on developing a constitutional role morality for elected officials.  And I find moving her subtle suggestion that we might be more mindful of how we talk about Congress as an institution.  As I note in the book, Congress still legislates today, and it does so far more frequently than states form interstate compacts to solve their collective-action problems.  Moreover, Professor Balkin reminds us that “[t]his kind of gridlock is not a permanent condition” and we have been here before.  Those points suggest that I have not written an elegy.

One of Professor Balkin’s most important contributions to our symposium is to centralize conflict—disagreement—about the nature and scope of collective-action problems facing the states and about the efficacy of Congress’s solutions.  He fleshes out in illuminating detail why I emphasize that, “when states disagree, collective-action problems do not simply exist or not in a technical, scientific way.” Although “[c]ost-benefit collective-action problems have a certain objective structure,” I write, “their existence and significance require assessing the extent to which states are externalizing costs that are greater than the benefits they are internalizing.”  I would add to Professor Balkin’s astute observations that the existence of such disagreement is not just hypothetical but historical and modern in the U.S.  I offer numerous examples in the book.  

I would also add that the under-determinacy of collective-action reasoning is not only a vulnerability of the theory but also a virtue.  Part of what I mean to accomplish is to provide a common vocabulary that participants in federalism debates can use to productively disagree.  Professor Balkin sees that possibility and illustrates how the process might work.  

Consider, for example, the Interstate Commerce Clause.  It is structurally more sensible to engage whether Congress reasonably concluded that the states face a collective-action problem caused by interstate spillovers with material effects—so that “Commerce” broadly construed is “among the several States”—than it is to debate whether the conduct that Congress is regulating is “economic” or “activity” in some functionally irrelevant sense. 

The partially normative dimension of collective-action thinking may make challenging Professor Re’s thought-provoking attempt to reconceptualize the Collective-Action Constitution as “an inquiry into the law’s underlying structure” and “a fact about our world.”  Again, although empirical facts are directly relevant to collective-action reasoning, multi-state collective-action problems do not simply exist or not independent of normative commitments.  Professor Re’s approach is more empirical and descriptive than mine—indeed, than the genre of constitutional interpretation more generally.  Moreover, his normative conclusions regarding presidential unilateralism, aggressive judicial review of structural issues, and the major questions doctrine are different from the ones I defend.  What I most admire about his contribution, however, is that it exemplifies how scholars with different methodological and ideological commitments can use the structural theory offered in the book.  That does not mean all conclusions are equally plausible, but it does suggest that there is often room for debate.

Professor Re astutely identifies what is likely to be a major challenge to The Collective-Action Constitution.  How can I persuasively argue that solving and preventing multi-state collective-action problems is the primary structural purpose of the Constitution, as opposed to a primary structural purpose?  Aren’t there multiple structural purposes that must be balanced?  Don’t we have The Compromise Constitution, not The Collective-Action Constitution?  

Although I would be pleased to persuade readers that addressing and avoiding collective-action problems facing the states is one important structural purpose of the Constitution, I make the more assertive claim not to be provocative by overclaiming, but because much evidence supports it.  We should not forget that the Constitutional Convention took place, and the Constitution was ultimately ratified, primarily to solve the collective-action governance failures that routinely occurred under the Articles of Confederation, not to protect state authority or individual liberty from federal overreach.  

As I examine in the book, that original order of priority is more evident once one realizes that the founders were contemplating strictly limited use of the president’s veto power, sharply restricted judicial review of federal legislation, and more assertive judicial review of state laws.  In addition, they were not anticipating political parties, let alone today’s polarized and antagonistic parties.  

Moving from original structural purposes to contemporary ones, my claim about the Constitution’s primary structural function reflects a view about the expectations of the American public.  Most Americans want members of Congress to compromise and address such issues as national security, climate change, pandemics, unlawful immigration, and other multi-state collective-action problems.  They do not want Congress to routinely be thwarted in its efforts to do so.   

Both originally and today, it does not make structural sense to give Congress impressive powers, and to create impressive executive and judicial branches to enforce federal law, while simultaneously rendering it extraordinarily difficult for the federal government to act other than through unilateral, fleeting actions by presidents—who were intended to be law enforcers, not lawmakers.  Presidents represent one political party and so lack the broader  democratic legitimacy and interest balancing of Congress.  Depending upon who occupies the office, presidents also pose a greater threat of democratic backsliding.

On the other hand, preserving state autonomy remains an important structural purpose of the Constitution, and that purpose is advanced by (inter alia) the anti-commandeering doctrine.  Professor Delaney is right that the constitutional text does not demand state protection from commandeering: it is a structural principle, not a textual one.  My purpose is neither to fully embrace the Court’s version of the principle nor to fully reject it, as Professor Delaney would.  Rather, I would allow commandeering where all states would be better off if such a coercive federal solution were imposed, and I would presumptively prohibit commandeering if some states would be worse off given the unusually coercive nature of commandeering.  I also argue, however, that the presumption against commandeering should “be rebuttable where Congress lacks regulatory alternatives that would be about as efficacious.”  Such a regime would respect state autonomy without impeding Congress’s ability to address what it reasonably deems cost-benefit collective-action problems.  

Professor Strauss’s contribution to the symposium is sharp, plain-spoken, and thoughtful.  He explains why The Collective-Action Constitution has much to offer those who, unlike me, reject the idea of judicially enforceable limits on Congress’s enumerated powers.  Even if we disagree about the proper role of courts, we should all agree that legislators should be constitutionally conscientious: they take oaths, too.  We should also agree that constitutionally conscientious legislators should think through federalism questions.  They should ask what sorts of questions are best addressed by the federal government, either alone or with the state governments.  As Professor Strauss observes, the different categories of multi-state collective-action problems can help such legislators execute their responsibilities. 

In offering a collective-action account of the Interstate Commerce Clause, my goal is not to “make the case for reinvigorated judicial review” of interstate-commerce questions, as Professor Strauss writes.  My purpose is instead to provide an intergenerational synthesis of the doctrines articulated by  the Marshall Court and the various Courts since 1937—a synthesis that is responsive to the original purpose of the Clause.  For several reasons I identify, I am optimistic that judicial review can work reasonably well in this area, although I agree with Professor Strauss that such review should be relatively modest—as it was originally intended to be—because courts possess substantially less democratic legitimacy and expertise than Congress (or agencies) in determining the nature and scope of multi-state collective-action problems, especially when states disagree.  

Still, there are ways to make judicial review sufficiently tractable that it is available if Congress goes too far, as it occasionally does.  For example, in interstate-commerce cases, I would require the interstate spillovers that cause collective-action problems for the states to have material effects, not merely psychological ones.  I would also impose reasonable limits on the time horizon within which Congress can identify the existence of collective-action problems facing the states.  With those limitations in place, it is difficult to understand what the multi-state collective-action problem was in United States v. Lopez, 514 U.S. 549 (1995), where the Court invalidated a federal ban on gun possession in school zones.  

I would not, however, restrict Congress to reasoning about collective-action problems according to standard cost-benefit analysis, which assumes that everyone values a dollar the same no matter how rich or poor they are.  As I emphasize in citing my colleague Matt Adler’s work on prioritarianism, Congress is entitled to assign greater weight to the welfare of the less well off, which in the Civil Rights Era discussed by Professor Strauss would generally mean Black Americans, not the segregationists who owned hotels or restaurants.  In addition, as I argue in Chapter 9, when Congress seeks to vindicate human freedom, equality, and dignity, Section 5 of the Fourteenth Amendment—whose language and history exude McCulloch deference to Congress—should routinely be available. The modern Court’s contrary doctrine is based upon a misunderstanding of state action and a failure to recognize the implications of the Citizenship Clause in Section 1 of the amendment.  

In many areas, the book privileges breadth of coverage over depth.  A hope I express in the Conclusion is that subject-matter experts will examine the relevance and implications of The Collective-Action Constitution for their areas of interest.  Professors Charles and Delaney provide inspiring examples of that aspiration in action.  

As Professor Charles highlights, it is critical to the theory that multi-state collective-action problems be addressed in democratically legitimate ways.  Again, states often disagree about the existence and seriousness of collective-action problems, so the question becomes which governmental institution is best situated to resolve such disagreements.  My first-best answer is Congress, where all states and individuals are better represented than anywhere else.  The book defends that comparative institutional judgment on textual, historical, and theoretical grounds, but it does not defend the proposition that the Constitution and contemporary political practice in the U.S. are sufficiently democratic by modern standards of democratic legitimacy.  Professor Charles gives us reasons to fear that they are not.  For example, he observes that the Guarantee Clause (housed in Article IV, Section 4) does not ensure that “our political parties are committed to representative democracy,” that “oligarchs [do not] control our politics,” or that “local officials will certify the results of a federal election.”

There are numerous ways to defend democratic self-government; my book offers just one.  But as Professor Charles perceives, it is a deep, structural defense.  If the most fundamental structural purpose of the Constitution is to solve collective-action problems for the states in democratically legitimate ways, there is a strong structural rationale for interpreting many constitutional provisions and principles in a pro-democratic fashion.  

For example, on that structural view, the Constitution may offer resources to both courts and a mobilized public should a state legislature in 2024 attempt to disenfranchise its electorate in a presidential election by choosing its own slate of electors to tip the election from one candidate to the other.  Cf. Trump v. Anderson, 144 S. Ct. 662 (2024) (disabling states from enforcing Section 3 of the Fourteenth Amendment against presidential candidates).  In my view, the Court’s judgment in Trump, although not its reasoning, is defensible on structural, McCulloch grounds as elaborated in The Collective-Action Constitution.  I thank Professor Charles for reading the book as asking what it means to be a collective—a Union of states and people—that acts in democratically justified ways to identify sufficiently common problems amid disagreements and to ameliorate them insofar as government can.   

Professor Delaney accurately observes that my book does not engage the literature on comparative federalism.  I hope she is correct that my book contributes to federal theory and will enrich comparative debates.  I know she is right that my work would benefit from greater engagement with scholarship on comparative federal systems.  Among other things, comparative experience can help test whether I am correct about which parts of the U.S. Constitution and constitutional law can persuasively be explained in collective-action terms.  For example, the variation among federal constitutions on the issue of central consent to interstate compacts tends to support my conclusion that collective-action theory cannot fully explain the form of congressional consent required in the U.S. Constitution. 

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Moving beyond the symposium contributors, The Collective-Action Constitution has been called “hundreds of pages of ambitious centrism” (by Professor Craig Green) and “constitutional law for grownups” (by Professor H. Jefferson Powell). Those descriptions capture my ambitions in writing the book, although it is up to others to decide how far I have succeeded.

During a cynical era, in which one may wonder whether certain commentators, lawyers, politicians, and jurists take law or other people’s commitments seriously, I have tried to take diverse constitutional materials seriously; incorporate other people’s constitutional commitments; avoid overclaiming; acknowledge the limitations of my approach; and emphasize that no structural theory, including mine, can save America from terrible politics.  I have no doubt fallen short, and I have no illusions that either full-throated nationalists or constitutional skeptics of federal power will be satisfied with my structural theory, or with how I would apply it.  But it is important for legal scholars to try to model for one another, their students, elected officials, and jurists willing to listen that law still lives, and that it remains possible to “forge[] community in dissensus,” as Professor Reva Siegel has skillfully written in the context of her own work.  My greatest hope is that The Collective-Action Constitution contributes to that effort.