The Upside-Down Constitution

The Upside-Down Constitution

Michael S. Greve

Language: English

Pages: 528

ISBN: 0674061918

Format: PDF / Kindle (mobi) / ePub


Over the course of the nation’s history, the Constitution has been turned upside-down, Michael Greve argues in this provocative book. The Constitution’s vision of a federalism in which local, state, and federal government compete to satisfy the preferences of individuals has given way to a cooperative, cartelized federalism that enables interest groups to leverage power at every level for their own benefit. Greve traces this inversion from the Constitution’s founding through today, dispelling much received wisdom along the way.

The Upside-Down Constitution shows how federalism’s transformation was a response to states’ demands, not an imposition on them. From the nineteenth-century judicial elaboration of a competitive federal order, to the New Deal transformation, to the contemporary Supreme Court’s impoverished understanding of constitutional structure, and the “devolution” in vogue today, Greve describes a trend that will lead to more government and fiscal profligacy, not less. Taking aim at both the progressive heirs of the New Deal and the vocal originalists of our own time, The Upside-Down Constitution explains why the current fiscal crisis will soon compel a fundamental renegotiation of a new federalism grounded in constitutional principles.

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“cooperative.” The oddness, however, disappears when one looks at federalism from the states’ vantage: the New Deal’s inverted Constitution is the federalism they want. Constitutional Inversion • 189 Constitutional Inversion, Part 1: A Federalism for States The New Deal Constitution’s federalism, I have insisted, inverts the foundational principles of the Madisonian, competitive Constitution. It moves from the citizens’ “reflection and choice” to the states’ interests as federalism’s baseline;

Uncertainty both allows and compels individuals to turn from opportunism to reasoned choice, from questions of distribution to institutional rules that promise collective gains. Consociation and Competition. Political constitutions differ from clubs in many ways, beginning with the fact no one can be compelled to golf. Even so, the club hypothetical illustrates the fundamental difference between consociational and competitive constitutions. Consociational constitutions are collective,

Ours does not. Its point is not to empower states but to discipline them. Entitlements. The United States Constitution embodies the competitive federalism criteria in table 3.1: primary state authority over internal affairs; primary national responsibility for producing public goods that are national in scale (prominently, national defense) and for the protection of free trade and mobility within the common (domestic) market. This book’s appendix contains a schematic overview of the

judicial expectations with respect to the congressional response. “On the whole,” a close student of the Founding era concluded more than six decades ago, “the evidence supports the view that, as to the restricted fi eld which was deemed at the time to constitute regulation of commerce, the grant of power to the federal government presupposed the withdrawal of authority pari passu from the states.”43 The italicized phrase is crucial. It makes perfect sense to treat the Commerce Clause as exclusive

would accommodate those demands. More often than not, those arguments found a receptive judicial audience. However, the justices would have recoiled at any suggestion that their embrace of novel doctrines amounted to a change in the Constitution itself. Precisely because they were mindful and confident of the Constitution’s precommitments, they felt free to elaborate doctrines that would make it work in a rapidly changing, increasingly complex and interdependent society. Under thenprevailing

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