In Federalist #9, Alexander Hamilton rebutted “the advocates of despotism,” who maintained the impossibility of combining free government with civic order, citing advances in “the science of politics,” embodied in the US Constitution. Following Hamilton’s lead, in The Collective-Action Constitution, Duke law professor Neil S. Siegel announces the achievement of newer discoveries in political science, notably through the application of game theory to the interpretation and improvement of our founding document.

Siegel favors a Federal government with a much more open-ended range of authority than Constitutional scholarship has traditionally assigned it. In contrast to a “long-standing vision” of the Constitution that imposes significant limits on Federal authority so as to protect the authority of state governments and individual liberties, Siegel sees a “collective action Constitution.” Since the Constitution was adopted to overcome the deficiencies of the Articles of Confederation, he argues, it should be read broadly to enable the government to address such collective problems as COVID, national health insurance, income inequality, low wages, racism, climate change, and even abortion. Only in this way can the nation overcome a range of challenges, handling coordination problems and preventing some states from free-riding on others’ salutary efforts. As precedent, he cites Chief Justice John Marshall in McCulloch v. Maryland, which upheld the constitutionality of a national bank under the document’s “necessary and proper” clause.

But Siegel’s position goes well beyond Marshall’s sound interpretation of the Constitution. In maintaining the bank’s constitutionality, Marshall cited the powers Congress is explicitly granted over the sword and purse (taxation, borrowing, regulating commerce, and directing the armed forces), and accepted Congress’s judgment that the bank was conducive or convenient—hence “necessary and proper”—to achieving those purposes. By contrast, while paying occasional lip service to the principle that Congress’s powers are constrained by the Constitution and the rights of states and individuals, Siegel’s “game-theoretical” approach is essentially open-ended. Except where the constitutional text specifically precludes it, Siegel endorses a “cost-benefit collective-action” treatment of public-policy problems. In “situations in which some states would regard themselves as better off” from a particular collective action, but others find themselves worse off, Congress is authorized to take action whenever it “rationally determines that its intervention would help the one group of states more than it would harm the other.” As an example, Siegel cites a hypothetical disagreement between a majority of states that “regard the use of child labor as triggering a race to the bottom” (one of his favorite phrases) while a minority view it as “a race to the top” entailing “healthy economic competition.” 

This example is abstract and misrepresents the way that national policy is normally made. (The same could be said of collective action concepts more generally.) The history of child labor laws in America is complex. The Court struck down a Congressional enactment banning child labor in Hammer v. Dagenhart (1918) but then overturned that decision in 1941 in US v. Darby Lumber Co. After that point, a national consensus seems to have been reached on the issue. But Congress, in enacting the Fair Labor Standards Act of 1938 (which restored the ban) surely did not engage in the sort of quantitative weighing of interests or outlooks that Siegel portrays. More likely, Congressmen on both sides were animated by a desire to satisfy constituent demands, a concern for promoting what they judged to be the overall common good, and also perhaps a belief that their actions had a plausible grounding in the Constitution.

Siegel’s treatment of abortion further shows the oddity of his recommended form of cost-benefit analysis. In light of the Supreme Court’s 2022 Dobbs decision overturning the ruling in Roe v. Wade that had purported to discover a Constitutional right to abortion, Siegel raises the possibility of using the Commerce Clause to either “protect—or deny—abortion access nationally.” He is “tempted to argue that national legislation” restricting abortion “would combat a destructive race to [the] bottom”—here implying, on unspecified grounds, that promoting abortion rights is inherently better than limiting them. Then, however, he acknowledges the lack of any “value-neutral way for Congress or a court to assess whether the benefits to states that protect (or ban) abortion exceed the costs that such states externalize onto other states with the opposite view.” Nonetheless, he concludes, the Interstate Commerce Clause authorizes Congressional majorities “to decide this moral question … and to assign values to the internalized benefits and externalized costs of different state regulatory regimes based in part upon this moral judgment.” This in turn obliges courts to “defer to whatever rational cost-benefit judgment Congress makes.” 

This is very strained reasoning. What could it mean to “assign values” to the costs and benefits of different abortion “regimes”? And considering the absence of reference to abortion in the Constitution, on what ground can Siegel authorize Congress to claim jurisdiction over the subject? Isn’t leaving it to the states what self-government means? 

Crucial to Siegel’s extension of Congressional authority to matters seemingly as remote from national authority as abortion is his broad interpretation of the word “commerce,” following some eighteenth-century usage, to extend beyond economic transactions to “exchanges of people and ideas.” No serious “textualist” interpreter of the Constitution would consider reading the commerce clause in that way. If Congress is authorized to regulate (not merely facilitate) whatever transmissions of ideas or people it regards as embodying “collective-action problems,” what subjects could it not regulate? (Siegel indeed maintains that “a democratically legitimate national political process justifies giving Congress, not the states, authority to decide whether there are collective-action problems in need of solving when the states disagree.” So much for federalism!)

While Siegel rejects the limitation of “commerce” to economic matters, even within that narrower sphere, he gives it exceedingly broad scope in the name of addressing supposed collective-action problems. For instance, he justifies federal spending programs partly on grounds of “interstate psychological externalities.” This might apply to a situation in which a state government opts to “prefer tax cuts to the provision of poverty relief” which would “make another state [which cares more for the poor] worse off.” Siegel justifies some of the most intrusive New Deal legislation, including the Federal Live Poultry Code for New York City (unanimously ruled unconstitutional by the Court in Schechter Poultry v. US [1935]) and a provision of the Agricultural Adjustment Act of 1938, upheld by the Court in Wickard v. Filburn (1942), which punished farmers for growing more than their assigned quotas of wheat for the purpose of feeding their own animals. (In US v. Lopez [1995], the Court described Wickard as “perhaps the most far reaching” extension of Congressional authority over intrastate commerce, and judged that it “greatly expanded the authority of Congress beyond what is defined in the Constitution under that Clause.”) 

Unfortunately, Siegel isn’t content merely to espouse extraordinarily broad limits to Congress’s powers under the existing Constitution. In Part III, “Perfecting the Collective-Action Constitution,” he laments the “collective costs” of the document’s “strict supermajority requirements”—the requirements that a two-thirds majority of each house is needed to override a Presidential veto; that two-thirds of the Senate approve a treaty or convict a President in an impeachment trial; that a majority of the electoral vote, proportioned among the states, rather than a simple national popular vote, elect a President; and that Article V makes it extremely difficult to ratify an amendment. According to Siegel, in requiring a two-thirds majority for a veto override, “the Framers did not anticipate that a president might usurp or disregard the powers of Congress.” Nor did they “anticipate expansive executive power and political parties,” which make it “extraordinarily challenging both to override vetoes and to remove impeached presidents.” 

Siegel offers a curious set of reasons why the amendment process needs to be made easier. First, he laments that our constitution is more difficult to change “than almost every other democratic constitution,” noting that Germany, for instance, “amends its Basic Law almost once per year,” France “more than once every two years,” and “most states” do so “every couple of years.” Yet he acknowledges that “constitutional change can do more harm than good,” and holds that the claim that it is desirable “is ultimately unprovable,” just like (he maintains) “its antithesis.” Here, however, Siegel would have profited from reading James Madison’s explanation in Federalist #49. The Framers made the Constitution difficult to amend because frequent changes would “deprive the constitution of that veneration, which time bestows on everything, and without which perhaps the wisest and freest government would not possess the requisite stability.” As America looks back on 235 years of stable constitutional government (interrupted only once by a civil war resulting from a crucial defect in the original document), it is astonishing that Siegel should cite France (which has gone through five republics during the course of our one), and Germany (no more need be said) as superior models to ours! 

The great problem that Siegel believes a more amendable constitution could address is “congressional gridlock,” that is, Congress’s failure to achieve “key constitutional purposes” owing to such factors as the separation of powers, Presidential vetoes, and our non-simply-majoritarian mode of choosing Presidents and senators. It is remarkable that Siegel should lament the insufficiency of legislation by recent Congresses, in view of such sweeping and costly laws as the Affordable Care Act, the 2017 Tax Cuts and Jobs Act, the American Rescue Plan, and the Inflation Reduction Act. 

Siegel’s claim that Congress doesn’t legislate enough seems to embody a confusion between the number of laws it enacts and the scope and cost of such omnibus legislation. Indeed, in his concluding paragraph, Siegel acknowledges that Congress still “passes major legislation today,” citing some 25 laws it has enacted on a wide variety of subjects just since 2000. But as to whether Congresses should be rated by the frequency with which they enact legislation, Siegel might have consulted Madison’s explanation in Federalist #62 of how senators’ relatively long tenure in office should help reduce the “mutability in public councils” that would cost the national government the respect of both its own citizens and that of foreign nations, and that would give unfair advantages to speculators (insiders) who could forecast the next policy changes (say, in taxes or subsidies) in advance of their industrious fellow citizens. 

Siegel’s book may inadvertently enhance Americans’ pride in their Constitution. We should indeed feel grateful that it was designed not by devotees of game theory, but by men whose experience and education had equipped them with a realistic understanding of human nature, and whose common deliberations enabled them to devise a political system that would secure the blessings of liberty to their posterity.