The Upside-Down Constitution
Michael S. Greve
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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.
from safeguards against the violence of faction to an embrace of interest group politics; from constitutional stability, ensured through self-enforcing norms, to a more democratic, “Living” Constitution. The remainder of this chapter tackles this constitutional transformation one inversion at a time. The explanation moves from a simple, bare-bones model to a richer account that more fully captures the logic and the political economy of the New Deal transformation. I begin in this section with a
preferences of prospective citizens, to the complete exclusion of the preferences of “states as states.” Examine the Constitution from this vantage: for all the wheeling and dealing that went into it, the Founders managed to protect that central premise. For that reason, they got all the pieces of a competitive federalism architecture almost exactly right—perhaps as right as one can get them. The States’ Federalism. Now invert the perspective, and consider federalism as a bargain among
types of state law. A “police power” regulation is a state law that serves a legitimate public purpose. The opposite is what the nineteenth century called “partial” regulation, meaning naked interest group transfers.32 In the Commerce Clause arena, that vital distinction plays out as a means of arresting factionalism at the state borders while protecting legitimate exercises of state autonomy against federal overreach. Table 4.1 illustrates the train of thought. Commerce and Competition • 101
actors and transactions. That sort of unwarranted advantage looks more like forced entry than like competition. Or else, interstate commerce is subject to expropriation. A dormant Commerce Clause of that description is both implausible and unstable. Regardless of where one draws the line, it will crumble under the weight of incessant litigation and clever attempts at evasion.51 Cooley illustrates both a related aspect of the scope problem and, in blazing light, the delegation problem. Justice
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