The Upside-Down Constitution: Recent Reviews and Further Reflections

The Upside-Down Constitution sought to spark a more vigorous and forthright debate about federalism and, more broadly, the constitutional order—beyond a federalism of “balance” and a clause-bound, positivist originalism. I’m gratified that a good number of thoughtful lawyers and scholars have accepted the challenge. Early reviews include terrific pieces by Rob Gasaway, sitemeister Richard Reinsch, and Ilya Somin. Recent additions include a review by James A. Gardner (SUNY Buffalo Law School) in the Law & Politics Book Review (more in a sec); by R. Shep Melnick (Boston College) in The Forum; and by Roderick M. Hills, Jr. (NYU Law School) in the Tulsa Law Review.

Alas, Shep’s piece is behind a pay wall and Rick’s, behind a “you-must-buy-the-physical-volume” wall. I have the e-files but can’t link to them without copyright infringement. Next best option: (1) offer to send the file(s) to anyone who asks; (2) give the authors air time on this blog—not nearly as much as they deserve, but enough to give a flavor and to suggest useful lines of further inquiry and debate. I proffer this post in that spirit; with apologies for its inordinate length; and with gratitude to the critics.

Dialogue and Polemics

James A. Gardner’s clever opening casts me in the role of Morpheus to all you Keanu Reaves out there. True, on one point: you should stay away from the woman in the red dress. (She’s my wife.) Other than that, I disclaim all Morphean pretensions. I don’t think there’s a single truly original insight in the entire book; the extensive footnotes are meant to direct readers to the places and authors whence all this came. The originality, such as it is, is to arrange the pieces—real pieces about a real world—in a somewhat different fashion.

Professor Gardner then supplies a concise, fair-minded summary of the general argument of UDC. It’s very well done, and all the more admirable because the reviewer really does not like this “frustrating” book. For starters, he laments the murkiness of the author’s normative commitments: it’s not clear what Greve actually wants federalism to accomplish.

Ultimately, perhaps, what Greve may most disapprove is democracy. For him, the basic problem of the Court’s New Deal turn was “to make the Constitution itself more responsive to democratic demands” (p.178). Many of the pathologies of the modern state that he accurately describes could just as easily, and probably more plausibly, be described as pathologies not of federalism, but of responsive democratic self-governance. … The turn to individual rights, which Greve deplores, is part of the solution to this problem, but of course it is true enough that a rights-based solution is needed only because the Constitution’s original structural protections for individual liberty did not do an adequate job.

On the point preceding the ellipsis: I agree that federalism’s pathologies partake of “democratic” pathologies that play out in other venues. But I don’t think I made any bones about that, and other reviewers caught and emphasized the point. (“The Upside-Down Constitution is about federalism the way Moby Dick is about a whaling voyage,” Rob Gasaway wrote.) And I think I’ll stand by the “pathology” point. “Responsive democratic self-governance” means that the demos will vote itself maximum benefits at minimum cost. To the extent that the system is unitary, the demos will seek to shift the costs over time, to future generations. To the extent that the system is federal, the demos in each state will demand cost shifts to other states and their citizens and/or by means of “intergovernmental” programs. I’m perfectly open to the argument that the former (Social Security, Medicare) is more serious than the latter (Medicaid). But the overarching point is the same: you’ll want an institutional system, including a federal system, that disciplines and checks democratic demands for free-lunch politics. We used to have that, and now we don’t.

On the point after the ellipsis: I’m inclined to think (and UDC argues) that the individual rights solution was peddled by folks who had done their very best to demolish the original structural protections, with a great deal of success. In support of that proposition, I’d cite Carolene Products. Maybe you’d want or need more rights one way or the other, but I don’t think it’s an “of course” point.

Professor Gardner concludes with an assessment of UDC’s “greatest weaknesses”:

First, the book does not invite the reader into dialogue, but instead actively discourages it through a practice of importing at every turn, without explanation or justification, huge constellations of assumptions the failure of any of which could presumably alter the ultimate plausibility of the argument. In this sense, it does not seem aimed at persuading a general audience that includes possible skeptics, and indeed this impression was strengthened by what seemed, at least to me, a frequent whiff of Straussian ellipticism throughout the text, as though things intended cannot safely be stated forthrightly. The book thus reads for the most part like part of an ongoing internal debate within modern conservatism, much of which may be unintelligible to general readers.

At the end of the day, however, the book’s greatest flaw is the author’s self-indulgence. He cuts himself every conceivable break, but his rhetorical foils none at all. … [The author] seems always skeptical of the motives, assumptions, and arguments of others, but never of his own. And that, in the end, is what makes this book closer to a polemic than a balanced, scholarly intervention.

Shep Melnick’s verdict is more positive. He is skeptical about the simple “competition-cartel” dichotomy that drives UDC, and he notes that all the familiar Tocquevillean arguments go unmentioned: local politics is nothing but a racket. Totally fair points (and on the rare occasions that I’ve taught the book, I’ve flagged them for students): hack your way through the federalism thicket with a simplistic heuristic, and a ton of stuff goes by the boards. The question is whether the heuristic is sufficiently illuminating to warrant the price. In contrast to Professor Gardner, Shep concludes that the book opens up fruitful avenues of inquiry for political scientists:

1. Federalism is one of the central features of American government, yet American Political Development, one of the most vibrant fields within political science, has not had much of interest to say on the topic. By emphasizing that the key question is not “ how much ” federalism but “ what kind ” of federalism, Greve demonstrates that “ development ” does not mean “ inevitable centralization, ” and forces us to investigate how American federalism has been transformed rather than overcome.

2. His rich description of the ways the New Deal empowered rather than weakened state governments raises important questions about how well New Dealers, both on and off the bench, understood what they were doing and what they wanted. Did they grasp the tendency of “ cooperative federalism ”to expand government responsibilities? Were they shrewder than we have imagined, or were they just searching for ways to avoid obstructionism by southern congressmen?

3. The Upside Down Constitution explains why those interested in American politics and constitutionalism should study “ horizontal federalism, ” and not just its popular but vastly overrated sibling, “ vertical federalism. ” Political scientists who study “ law and courts ” should stop obsessing about Roe v. Wade and Lawrence v. Texas (about which nothing new has been said for many years) and start thinking about Erie Railroad and its progeny. It is quite remarkable that one of the most important decisions of the twentieth century has received so little attention from those who study the politics of the federal judiciary. …

4. Greve helps us understand a number of recent developments that otherwise might seem merely quirky or accidental. One is the role of state attorneys general in promoting national programs. The tobacco settlement and greenhouse gasses litigation are an outgrowth of the post-New Deal federalism that Greve describes. This type of litigation will continue; to know why, read the book. Another is preemption, which has become a major part of the Supreme Court ’ s docket. Greve shows that this is not just “ business ” vs. “ the states ” or liberals vs. conservatives, but a bubbling caldron of competing interests and incoherent judicial doctrines.

5. It is fashionable in political science to focus on how judges vote, not what they say in their opinions. The “attitudinal” approach assumes that what really matters is who wins and who loses in a particular case, that judges simply vote their “ policy preferences, ” and that judicial doctrines are merely cloaks used to legitimate judicial rulings. Greve demonstrates that this is poppycock. Especially at the Supreme Court level, what matters is the institutional arrangements slowly built up by the Court, not the outcomes in particular cases. The justices have a major influence on American politics when they are able to establish an edifice of doctrines that has internal coherence, deals adequately with pressing problems, and has at least enough political support to withstand attacks from the other branches. Trying to code cases according to whether they constitute a win for “ the states, ” “ the national government,” or “ business” fundamentally misunderstands the matters before the court.

Structure and Corporations

Rick Hills finds much to praise in UDC (especially its emphasis on “functional” federalism arguments and concerns) but, in the end, finds the general argument unpersuasive. Intriguingly (and acknowledging that I’ll resist the characterization) he calls the argument “Dworkinian”: competitive federalism provides the best “fit” for the Constitution, and it’s normatively attractive. Epic fail , Rick says. Sure, there’s a competitive (and, importantly, pro-corporation) riff on the Constitution’s federalism. But from the founding through the antebellum era to later decades, there’s also been a localist, anti-corporate tradition, and it’s equally plausible.

There is, in sum, no reason to regard competitive federalism as “the Founder’s constitutional child” and dismiss “cooperative [federalism]” as “a bastard.” Instead one might say that the Constitution itself is an under-specified agreement that left the specifics of federalism up for grabs. Anti-corporate federalism fits the textual and precedential “evidence” just as well as Greve’s theory. Competitive federalism is not any more “legitimate” than the anti-corporate federalism that it replaced. Instead, both theories are equally legitimate products of different political coalitions’ dalliance with the constitutional text’s open-ended embrace of a variety of plausible federalism theories. If one is to choose between such theories, the choice cannot be based on Dworkinian “fit.” The choice must be based on practical consequences.

And on those, Rick notes, I don’t have a lot of compelling things to say. It’s a serious and forceful criticism.

Note the point of agreement here: how you deal with corporations has a lot to do with the Constitution, and with federalism in particular. (That’s why UDC has an entire chapter on corporations.) It’s kind of obvious when you think of it, but it’s not a conventional point. Rick is entirely right to note a competing, anti-corporate tradition, and he may be right that I didn’t give it enough air time. (His review explicates the tradition at some length and with great clarity.) I’d just note that the localist, anti-corporate guys lost, more or less consistently—until Louis Brandeis, Erie Railroad, and the New Deal.

The real point of disagreement, I think, has to do with constitutional structure. The reason why I resist the “Dworkinian” characterization and why I think that the competitive theory is better and more legitimate than its antithesis is that between high principle and raw text, there’s a constitutional structure, which we can explicate. Rick, I suspect, doesn’t really think so. For example, he calls the “horizontal” federalism provisions of Article I Section 10—which in the nineteenth century played a huge role—a “grabbag.” I don’t think that’s right. I think they have a structural logic, which connects the Contract Clause with the Import-Export Clause with the Compact Clause. You can buy that logic (as did the nineteenth century), or you can reject it (as did the New Deal). But it’s hard to see for me how you can pick and choose—which may help explain why the clauses have always stood or fallen together.

That’s hardly a QED; it’s the beginning of a fruitful, productive argument. As luck would have it, we’ll have a chance to pursue it in an accessible venue. The incomparable Jack Balkin has graciously offered host a mini-symposium on UDC on balkinization.  Three weeks hence, illustrious scholars (including Rick) experts will hammer away at the book, and I’ll reply to the best of my abilities. It’ll be fun; I’ll provide links.