We need a constitution that will bend to populist winds so that it will not break.
The Upside Down Constitution: Part I
As Michael Greve noted earlier, the two of us participated in a Federalist Society Teleforum on his new book, The Upside Down Constitution. The podcast based on the teleforum should be up in the near future. But in the meantime, I thought I would do a couple of posts based on my remarks.
Michael’s book is an extremely interesting one that is a pleasure to read. But what stands out most about the book is its distinctive approach. Virtually no one among legal academics has the same approach as Michael. As a result, I probably learned as much from this book as I have from any book on constitutional law.
In this and the next post, I want to make three points about Michael’s book. The first concerns Michael’s general approach to constitutional law, which is a neo-Hamiltonian. The second point is praise Michael’s vision of federalism as a normative attractive vision – one that views federalism as involving competition between the states that protects the welfare of citizens. My third point, however, is a criticism – involving the book’s view of the spending power. If Michael adopted a different view of the spending power, I believe it would significantly improve the operation of the Constitution, based on his own premises.
Let me start with Michael’s general approach to constitutional law: Michael is a Neo-Hamiltonian. He believes in free markets, but, unlike most modern federalists, he believes that the state governments are the principal impediment to such markets. Since that is an unusual position, he is able to pick a lot of low hanging fruit and make a large number of original and important points.
Consider just a couple of the examples. First, Michael argues in favor of Swift v. Tyson rather than Erie Railroad. He argues that Erie, despite the ordinary assumption to the contrary, allows forum shopping by plaintiffs, who use this power to take advantage of out of state corporate defendants. Erie, in other words, is part of the motor of the tort liability explosion. Second, he maintains that the Full Faith and Credit Clause should be read to impose significant constraints on one state taking advantage of its position as the location of the lawsuit. Third, he embraces the dormant Commerce Clause, which most modern federalists oppose, as an essential means of combating state protectionism.
One of the most striking points that Michael makes is to see the New Deal as a Cartel Machine. The New Deal wasn’t just about nationalism. That was just a portion of what it did. Instead, it was about embracing political cartels and government power. Michael supports this in a host of interesting ways. He thus showed me another way that the New Deal was a bad thing. And I had thought my view of the New Deal couldn’t get worse. I was wrong.
My second point is that Michael offers a normatively attractive vision of constitutional federalism. He views federalism as involving competition between the states, with the Constitution and federal government operating as a structure to ensure that this competition works well. The beneficiaries of this system are the people and their welfare. Michael contrasts this with a less attractive vision of federalism as one that protects the powers of state governments.
A key issue for Michael is to analyze what is necessary for the competitive structure to operate. In his view, it is essential to prevent the states from exercising their political influence to avoid the competition that the Constitution is supposed to establish. One distinctive aspect, though, is that Michael believes that competition requires a special role for the Supreme Court. While modern federalist/originalists have argued for Congress to protect the competitive structure – for example, by using the positive Commerce Clause – Michael argues that the Supreme Court is needed and should use the dormant Commerce Clause. While Michael makes some good points here, it is not clear to me that the Supreme Court will always or even generally get things right. But maybe it will, especially if scholars like Michael draw a map for the Court explaining where it needs to go.
In my next post, I will offer a criticism of Michael’s book involving his adoption of the Hamiltonian, rather than the Madisonian, spending power.