The Upside-Down Constitution, Right Side Up

I am deeply grateful to my friend Michael Uhlmann for his generous review of The Upside-Down Constitution in the Claremont Review of Books.  After Rob Gasaway’s deep Engage  review a few months back, Mike’s essay provides a second piece of evidence to the effect that perhaps, the book is best understood by lawyers who are masters at their chosen craft, yet transcend its conventional limitations: these guys understand me better than I understand myself. (Admittedly that’s also true of my nine-year-old, but in a different way.)

I’m pleasantly surprised that Mike finds evidence of my “acerbic humor,” inasmuch as just about all the fun stuff ended up on the cutting room floor. Feel my pain: writing about the turning points in American constitutional history, I found blowhards like Louis Brandeis propounding on the economics of supermarkets or the ice industry. The jokes write themselves, to the extent that they’re not right there in the opinions; what’s difficult is to think of five sentences you can write with a straight face.

I’m not surprised to find Brother Uhlmann asking the right questions about UDC’s project of understanding the Founders’ federalism as a distinctly competitive form of federalism (and our history, especially the New Deal, as an inversion of that model):

[I]s Greve accurately describing the framers’ intentions, or is he grafting the idea of jurisdictional competition (which is in part an invention of contemporary public choice economics) onto the scheme that Madison and Hamilton, for example, had in mind? Does he underestimate the force and effect of chance political factors that led to the Constitution of 1787?

In a similar vein, how credible is his argument … that the federal judiciary was effectively charged with the mission of keeping the Constitution in sync with the idea of competitive federalism—or is this, too, a Procrustean projection of a modern concept onto past events? Yet again, does Greve underplay or overplay the diverse political and constitutional elements that comprise the New Deal revolution?

To a large extent (Mike notes), the plausibility of the enterprise hangs on the execution: this is the umpteenth riff on the oldest question of American constitutional law. If it holds up okay against and makes at least as much sense as its far more illustrious competitors, I’ll collect my marbles and invite others to do better. But that’s not a complete answer and in any event, not everyone will want to sit through the entire “rhapsody” (Uhlmann) that is UDC; so let me hum a few bars:

You cannot ever comprehend the Constitution without, in some sense, “grafting” something onto it. It doesn’t state its own organizing principles, and it doesn’t provide rules for its own interpretation. So you have to go to its “genius.” The text counts big time, as does the structure, as does the history: you can’t invent your own Constitution. But when all that stuff gives out, you have to dig deeper: what does this thing rest on, and what is it supposed to do? For all those propositions and their elucidation, I’d cite M’Culloch.

Resistance to the competitive federalism jazz in UDC, I think, comes from something else. The Founders had a worked-out theory of some of the Constitution’s principles—say, the separation of powers. Even there, the theory is tricky and requires a ton of “grafting” and construction in light of future developments—for example, the emergence of political parties.  But at least, the original theory bounds the discourse. Not so here: in a very real sense, the Founders had no theory of federalism. The Federalist has a critique of the “federalism” of the Articles and of “federalisms” from Greece to Holland, all to the effect that surely we don’t want any of that. He (or they) has a theory of an extended republic, which strongly suggests that the states should go out of business. There’s a lot of speculation as to whether the Constitution might or might not produce the “consolidation” feared by the Antifederalists. But if you look for a positive theory what states might actually good for: there’s nothing beyond the suggestion that they might be terrific places to organize armed rebellion, should the need for another 1776 arise (and that’s not a theory of ordinary politics; it’s a theory about its dispensation). And, as Jeremy Rabkin has pointed out to me, the Antifederalists didn’t have a theory of federalism, either: at most, they had a theory of small states (which was neither coherent nor, in retrospect, terribly promising). Wade into this territory with a theory of federalism: you’re engaging a debate that was never really had. Insist (as I do) that there are right and wrong or at least better or worse answers to be had: the immediate suspicion is that  you made it all up (especially with all that econ and pubchoice stuff).

My reply is, I don’t see the alternative. I cheerfully concede the force of “chance political factors” in 1787: the fact remains that the Founders created an “compound republic” whose political economy, precisely because the forms were unprecedented, they could not know and knew they could not know. But as the system operates over time, it proves to have properties the Founders couldn’t have grasped; and as we recognize those properties, we come up with theories to comprehend them and the Founders’ system. And you do need some theory: without it, all you have is a bunch of clauses.

Despite the spirit of clever invention that hangs over the enterprise, the plausibility tests I’d apply are both stringent and, in the end, conventional. For starters, the theory has to be a theory—as opposed to, for a non-random example, the Supreme Court’s federalism jurisprudence, which consists entirely of textually ungrounded slogans (“balance!”), metaphors (the “split atom of sovereignty,” ka-boom), and bare and demonstrably false assertions (“federalism protects liberty”). The theory has to make sense of each and every clause and give each its full and fair meaning. It has to cohere internally; with the remainder of the constitutional structure; and with the Founders’ ascertainable principles and commitments—with the spirit as well as the letter of the Constitution. And, finally, it has to make sense of our constitutional traditions and understanding.

If you abide by those standards, it doesn’t matter that you borrowed the political economy theorems from James Buchanan and Ronald Coase: you end up with a much more originalist Constitution than many more conventionally originalist accounts.

I strongly suspect Mike Uhlmann understands all this. I know he would have said it better.