The Upside-Down Constitution and Its Critics
Reprinted from Law & Liberty
In revisiting The Upside-Down Constitution ten years after I put that baby to bed, I am violating time-honored principles of sensible authorial conduct. One, as a great Dane (Kierkegaard) observed, life makes sense only in retrospect, but you have to live it forward. Never mind second thoughts over past errors; entertain a third thought on what’s ahead of you. Two, never respond to critical reviewers, least of all in a “you-just-didn’t-get-it” tone. Three, do not fret over later events that may have dimmed or doomed your immaculate theory. Could I have predicted a candy-colored President and a “rigged and stolen election”? Only in dreams.
What I have written, I have written. Still, and at the risk of boring reviewers and readers who have heard this all before, I’ll (ab)use this opportunity to re-articulate a few UDC thoughts that may be worth remembering; and I’ll engage what has struck me as the most forceful—or at any rate, corrosive—criticism to date.
Federalism, Competition, and the Constitution
The ostensible subject of UDC is federalism, that oldest question of our Constitution. However, as one of my most perspicacious reviewers (Rob Gasaway, a dear friend and occasional contributor to this site) noted at the time, UDC is about federalism the way Moby Dick is about a whaling voyage. Its transcendent point is that the Constitution has a deep, ingenious structure and logic. That logic was well understood and articulated for the first century-plus of our constitutional history; a few examples appear below. It was rejected and repudiated by the leading lights of the Progressive and New Deal eras. Conventional forms of modern-day originalism do nothing to recover it and may in fact obscure it, and “common good originalism” gets you too far away from the Constitution than is good for anyone. Thus, UDC engages federalism as a way of rehabilitating an ancient thought: to make sense of the Constitution, and to distinguish constitutional elaboration from corruption, you have to understand the nature of the instrument. How?
UDC mobilizes precepts of public choice theory and constitutional political economy, pioneered by James Buchanan (the Nobel Prize economist, not the hapless President). Foremost, you want to think about a written constitution and its structure from an ex-ante perspective, meaning the perspective of folks who deliberate about a future Constitution. (Ex post, most everyone is an opportunist.) Those people must have certain characteristics. Their circumstances must make deliberation both possible and urgent: they need a constitutional moment, to borrow Bruce Ackerman’s apt phrase. They must think of themselves as a single sovereign people. (A collection of tribes, ethnic clans, or identity-mongers can with luck write a temporary peace pact, but never a durable constitution.) And they must have a very long time horizon, lest they succumb to the temptation of freezing temporary advantages into the instrument.
The public choice template is a convenient way of explicating ideas that the Founders understood perfectly well and, happily and indeed, put on paper. Hamilton’s famous opening passage on “reflection and choice,” versus “accident and force” (Federalist 1): there’s your constitutional moment. John Jay’s disquisition on why and in what way we are “one people” (Federalist 2): there’s your single sovereign. James Madison’s repudiation of Jefferson’s crackpot proposals for single-generation constitutions and frequent popular conventions (Federalist 49): there’s your extended time horizon. UDC works through all that, in long pages of exegesis. And if you insist on a piece of constitutional text, I give you the Preamble: We the people of the United States, etc. And we are doing this for “ourselves and our Posterity.” Res ipsa.
What, from that vantage, of federalism? It is not clear that any federalism is a sensible ex-ante choice. One can plausibly argue that the states, qua states, should disappear. Hamilton and Madison both advocated that program at the Convention. Obviously, though, that wasn’t going to happen. While there is no way the Founders would have invented states had they not already existed, they did exist, with their own political traditions and entrenched institutions. Some form of federalism was a foregone conclusion; the only question was what form it would take. That narrower question turns out to be tolerably straightforward.
For starters, you want a central government that can tax and regulate citizens directly, as opposed to governing states or through states. The Articles of Confederation had operated on that latter principle (as does the EU today): epic fail. The reasons have to do with agency and monitoring costs. The junior governments may not want to do what the general government wants and needs them to do. They will shirk, and when that happens, the central government must resort to armed force (assuming it actually has an army and the means to pay for it) or else, wheedling. In Hamilton’s splendid phrase, the government will become “imbecilic.” So you want federal powers to be “national in operation,” as Madison put it. They operate directly on citizens. They are plenary (they reach as far as they would even if the states did not exist), and they are supreme.
What does that leave for the states? The answer, here as with the separation of powers, is formal separation and functional specialization. Give the feds power to provide public goods and legal arrangements that states cannot provide on their own, starting with the national defense. Prohibit states from doing things that endanger sister-states, or the union. (You can look those up in Article I Sec 10.) Other than that, leave the states to their own devices so long as they have a “republican form of government” (Article IV), meaning some kind of elected legislature. And there you have the logic of limited, enumerated powers. In Madison’s taxonomy of the “compound republic,” the general government’s powers are national in operation, and federal in extent. Make federalism “dual”: separate, specialized, and near-exclusive spheres of federal and state authority.
All this is familiar to the point of ennui. What UDC adds, and what prompted some critics to dismiss the book as libertarian pamphleteering, is the elementary recognition—not mine, but that of a massive body of literature—that “dual” federalism is also and always competitive federalism. On all the margins that are beyond the federal government’s powers, states will have to compete for citizens’ “affections,” as the Federalist put it; for productive citizens and their talents and assets.
Charitable readers who can get past the econ lingo and think in terms of institutional competition will readily recognize the constitutional pattern. The separation of powers, and corresponding checks and balances, constitute a competitive arrangement. The separation of powers is an anti-monopoly device. The next move, of needs, is to make the separate institutions rivalrous, by giving them the means and the motives to block mutual encroachments. (I did not make that up: James Madison did.) Federalism is quite a bit like that: multiple, separate states, with turf-protective incentives.
What does institutional competition get you? Tyranny prevention and constitutional stability, Madison explained apropos the separation of powers and checks and balances. Pursue the thought and apply it to federalism. Citizens in different states will have different demand curves for public goods and accompanying tax payments (which, come to think of it, is the beginning of a pretty good argument for a federal arrangement). And it is child’s play to show that under suitably defined conditions, no state will be able to collect money from A and give it to B (to extract “surplus,” in Jim Buchanan’s parlance), lest the A’s migrate. Lo, those defined conditions are the ones that you find in the Constitution. States are equal, as of constitutional right (we don’t have a Catalonia or Quebec); they are territorial; and they must operate on principles of non-aggression, open borders, and non-discrimination: no standing armies; no import-export duties; no treating other states’ citizens worse than your own. (Hamilton called that principle, enshrined in the Privileges and Immunities Clause of Article IV, the “cornerstone of the union.”) The Founders did not couch their defense of the constitutional arrangement in terms of “competition” in a narrow, economic sense. But that is the logic of the deliberate institutional choices that they made.
The Constitution’s Federalism, Upside-Down
Explicating the Constitution’s logic in economistic terms has numerous advantages. Most importantly, it sheds light on our constitutional history and development. The Founders understood that the hard constitutional task isn’t really to divide powers between branches or levels of government on mere “parchment,” in Madison’s dismissive term. The hard task is to stabilize the constitutional arrangement over time. The Founders’ strategy, to repeat, was institutionalized competition.
Try as you might, though, to lock institutions into rivalry and competition: in politics as in markets, the institutional actors’ perennial temptation is to collude against citizen-consumers. The people’s agents are repeat players, and over time, they will discover institutional technologies to extract surplus. They will agree to deploy those technologies and to divvy up the surplus amongst themselves somewhere down the road. We have names for those innovations: “the administrative state.” “Cooperative federalism.”
Federalism-wise, states have two ways to thwart competition and to lock themselves into a cartel. First, they can agree to tax and regulate each other’s citizens on a full extraterritorial basis, such that each state’s jurisdiction extends to the ends of the nation. That is way more convenient than taxing your own citizens: the outsiders can neither run away nor vote you out of office. Those kinds of cartels are “self-enforcing,” as economists say: no state can defect; few even have an incentive to try; and the most aggressive state gets to set the pace. (Think products liability, or internet sales taxation.)
Second, states can have a central authority organize cartels and preclude defections. Federal minimum standards for things that states could, constitutionally speaking, do on their own (and which once upon a time were within their exclusive jurisdiction, such as labor conditions): those are cartel arrangements. “Cooperative” conditional federal grant programs, of which are over 1,200: those, too, are cartel arrangements. (They give reticent states a “choice” between complying with federal conditions or else leave money on the table.)
There you have the upside-down constitution, more colloquially known as the New Deal Constitution. Pace Madison, the general government’s powers have very nearly become national in extent and federal in operation. “Cooperative” federalism programs, regulatory or fiscal, covering the full range of domestic affairs and impenetrable even to experts, embody the constitutional strategy the Founders emphatically rejected: a government over governments.
Looking at federalism through this prism permits one to see things that otherwise remain clouded in conservative-libertarian mythology. As in, “the New Deal was a nationalist assault on the states”: the Commerce Clause, and all that. No way, no how: in large measure it was a response to state demand for federal intervention, in a form that would enable states qua states, meaning the political elites, to play a larger role and to shield them against competition (a “race to the bottom,” in New Deal parlance). The vast expansion of the states’ (especially state courts’) extraterritorial jurisdiction in the wake of Erie Railroad: a response to state demand. The demise of “economic substantive due process”: ditto. The Wagner Act, the Fair Labor Standards Act, the massive expansion of federal funding programs: ditto, ditto, ditto.
A second, related insight to emerge from the big-picture analysis is that something is amiss with the Supreme Court’s federalism. Once you permit state and federal powers to run concurrently over nearly the entire range of domestic affairs, you need coordinating rules to manage the overlap: what are they going to be? The Court’s watchword has been federalism’s “balance,” which translates into judicially engineered protections for the poor, pitiful states: various forms of state and official immunities; “clear statement” rules for congressional enactments that threaten to upset the “delicate,” “usual,” “constitutionally mandated” balance; a “presumption against federal preemption” of state law. Some of those doctrines may have a constitutional anchor. But not all do; and whatever the anchor may be, it cannot be “balance.” Go re-read Federalist 45, a diatribe to the effect that charlatans who obsess over the federal balance are the enemies of the people, and royalists at heart.
And consider, if you will, the constitutional structure and text. The first thing to expect in a Constitution that aims to protect “balance” is some binding allocation of tax revenues between the central government and the lower levels of government. Germany, Canada, India, and many other federal countries all have that. We don’t, and not by accident: the option was considered and rejected at the Convention. The Constitution’s principle is not “balance” but (dare I say?) tax competition. And the principal text that speaks to the issue is the Supremacy Clause. That is not a balancing rule but an ironclad, on-off choice-of-law rule: any conflict, federal law prevails. In a foundational case (Gregory v. Ashcroft), the Supreme Court sidestepped that awkward detail by calling the Supremacy Clause “an extraordinary power in a federal system,” with the intended implication that federal statutes aren’t quite as supreme as the Constitution postulates. Sure. You can always make up your own federalism with five votes. But that don’t make it right-side up.
UDC, to repeat, did not attempt to provide a full picture of the state of our federalism. Federalism aficionados who read the book now will be struck by two omissions. One is the interplay between federalism and the inexorable rise of executive government. Our federalism used to come from the Constitution and then from Congress. Now, it comes from the Executive, and the institutional consequences rattle through the system. For example, federalism relations have become much more confrontational and litigious. The second omission is the intensely partisan nature of our federalism. UDC stressed the sectional nature of our politics since the Founding. States have tended to act as blocs, on issues they deem to be of existential concern. Uncompromising opposition by one or another state bloc against the dominant political coalition has been the only meaningful obstacle to federally sponsored cartels. Witness the state of our contemporary politics: it is sectional, alright. It is also vehemently partisan.
Perhaps, I should have said more about those dynamics. If I had to re-write the book’s “Concluding Essay,” that is where my thoughts on these matters would appear. But I don’t think any of this would change the way I think about federalism or the constitutional enterprise at large.
But Is It Law?
Back in 2012, Yale Law School’s Professor Jack Balkin kindly sponsored a forum on UDC on his blog (and because he is a mensch, his further thoughts will appear on this site in short order). The critical essays by Gillian Metzger, Rick Hills, Michael McConnell, Ernie Young, Neil Siegel, Sandy Levinson, and Jack himself remain illuminating to this day. Having re-read them while noodling over this essay, I have re-discovered much food for sober reflection—and one line of criticism that, on first or second or even third thought, I must resist. It is exemplified by former Judge, then-Professor Michael McConnell’s review: Good book. Except, UDC “is better understood as a work of political science than of constitutional law.” The objection is understandable but, with all respect and in all friendship, misguided or at least misguiding.
UDC is profoundly constitutionalist and, if you will, originalist in spirit and substance. In trying to recover the Constitution’s logic and structure, the book does nothing without the text, let alone against it. An Appendix provides a schematic overview of the Constitution’s federal structure and gives every single federalism-related clause its place. The point is to show that the document does indeed have a coherent structure. Once you see it, you will see why the individual clauses belong where they appear. You will also see that the Constitution isn’t perfect. Some clauses are downright dopey. Others, chiefly the ones having to do with slavery, aren’t even constitutional in a robust, Buchananite sense: they are political compromises, on an issue where the Convention could not see its way clear to a genuinely constitutional solution. UDC drags patient readers through all that. And it seeks to demonstrate that everything I try to explain in terms of public choice theory was well understood by the Founders. What more am I supposed to do by way of proving my constitutionalist bona fides?
UDC, Michael McConnell noted, was “essentially silent on what [the author] thinks the various constitutional provisions relating to federalism mean, which is what constitutional interpretation is all about.” I get the idea, your Honor, and I plead guilty up to a point; but you lost me at “all about.” I do not believe that constitutional understanding can be reduced to constitutional meaning and interpretation. As Cass Sunstein has cogently argued, “There Is Nothing That Interpretation Just Is.” You have to say more, and a book that seeks to explicate the Constitution’s structure—beyond conventional interpretation—does not on that account cease to be (constitutional) law.
In a few short introductory pages, UDC tried to explain why the obsession with ”meaning” is a rabbit hole. You get to explore the meaning of meaning in countless caverns, inhabited by scholars who insist that theirs is the one and only legitimate method of interpretation. Stick your head in there, and you will never emerge with a genuine constitutional thought. I frankly have no idea whether I am a Wittgensteinian or a Kambartelian or something else; but I do know that my constitutional views don’t hang on it. If “living constitutionalists” proffer an exotic theory of linguistic indeterminacy, my answer is the one I give to my libertarian friends who fabricate their own Constitution: feel free. If corpus linguistics—the latest rage in orthodox originalist circles—tells me that the friendly janitor at the U.S. Mint may be an ”officer of the United States” and so must be appointed in accordance with Article II, I concede that the enterprise may shed light on “meaning.” However, I still ask why any sentient Convention member would write a Constitution of that import. As Professor Richard Epstein has written, with respect to administrative law and in admiration of nineteenth-century jurists who “tended to decide cases without using any overwrought methodological apparatus”: “The lower the level of intellectual angst, the more accurate and reliable will be the interpretations given.” Meaning matters. But you don’t want to make that inquiry the touchstone of what is or isn’t law, especially not constitutional law. You will want to think like a nineteenth-century jurist—say, John Marshall, or Joseph Story.
As every 2-L learns, the foundational opinions in McCulloch v. Maryland or Martin v. Hunter’s Lessee do not turn on textual exegesis. They turn on extended expositions of what I call the Constitution’s “logic” and the illustrious Justices called its “nature,” “spirit,” or “the genius of republican government.” Why bother with all that when the text—“necessary and proper,” “all Cases in Law and Equity,” the Supremacy Clause—lies so readily at hand? Because the nature of the instrument tells you how to read it. Once you see that, but only once you see it, the clauses make all the sense in the world and you will know how to read them. The Founders put them there because they did not want to leave the matter to “mere reason” or “general reasoning,” as John Marshall splendidly wrote in McCulloch. (The phrases re-appear in Story’s Martin opinion.) Only then do the Justices turn to interpretation: “necessary” need not mean “absolutely necessary.” “All” in Article III means that the entire Judicial Power of the United States must at all times vest in some federal tribunal, in original or appellate form. You can quarrel, as I do, with those particular arguments. (E.g., I wish I could agree with Justice Story’s take on Article III but I can’t, because the constitutional text gets in the way.) But there is no doubt about the structure of the argument: from the nature of the beast to its individual clauses.
Pursue the point and stick with just those two opinions: fixing the interpretive meaning of the clauses, in light of the Constitution’s genius, is just a prelude to the crucial constitutional enterprise of explicating tenable doctrine. McCulloch’s “necessary and proper” analysis grounds a pretext doctrine, derived from “the letter and the spirit of the Constitution” (my italics). Martin’s reading of the Judiciary Act, too, eventually hangs on the nature of the Constitution. Logically as well as descriptively, doctrine rather than clause-bound interpretation is the heart of the constitutional enterprise. Logically, because there is no way of “adapting” an unchanging Constitution to the “various crises of human affairs” (McCulloch again; original italics) except by means of constitutionally derived, abstract-concrete rules that we call, collectively, “doctrine.” Descriptively, because that is how judges, lawyers, and academics actually do constitutional law—how they write opinions, briefs, and articles. Maybe that is all make-believe. But it is necessary and constitutionally required make-believe. UDC supposes that the doctrinal middle ground is the true ground of constitutional law, and that it is defensible and worth exploring.
I cannot see an alternative. At one end lies legal realism, the lingua franca of a Supreme Court commentariat that does not even pretend to engage either itself or its audience in any genuinely constitutional conversation. At the other end lies a positivist originalism that contests the middle ground as just too open to improvisation. Obsess over “meaning,” though, and you will first miss the music and then even the notes; and it’s not like improvisation will end. Originalists with impeccable Federalist Society credentials and dozens of law review articles on exquisite originalist hermeneutics to their credit have told me that the Constitution establishes a “presumption of liberty.” They say so in the teeth of a text that provides that the Congress can tax just about anything and anyone at any rate and, moreover, has power to take your life, liberty, and property, subject only to the structural constraints contained in the document. Others have averred that there is a constitutional right to same-sex marriage in the 14th Amendment. Federalism-wise, the Supreme Court, in an opinion authored by its most earnestly originalist member, has held that a state agency cannot be made a party to a federal agency proceeding because that would violate the state’s “dignity.” Seriously?
All that is “law” in the way LA Law is law. Yet it has sprung—paradoxically, it would seem, but predictably to my mind—from the minds of learned jurists who obsess over meaning. And I am supposed to be the PoliSci guy who makes things up and doesn’t care about constitutional law? No way. Stand me up at the gates of Hell, or at any FedSoc confab: I won’t back down.
Hegelian at Heart (Up to a Point)
UDC rests on two unarticulated but firm convictions. Both are products of my Teutonic, Hegelian education.
One: if you think you have had an original thought, you are either illiterate or delusional, and quite possibly both. On that score, I plead innocent. Far from advancing some newfangled theory, UDC tries to recover old truths and to put lost intellectual pieces back together.
Two: any thought that cannot reflect upon the contingent conditions of its own origins is, or will soon become, raw ideology. That includes originalism. Quite a bit like the Founders’ federalism, modern-day originalism was born of necessity: conservatives needed an intellectually respectable way of fighting William Brennan’s made-up Constitution, and “judicial restraint” didn’t cut it. Ab ovo and ever since, originalism has shifted shape in conformity with political imperatives. Brown v. Board has to be right. The New Deal Constitution is water under the bridge. Obergefell must be right. And so on. Everyone understands the ideological nature of those moves. Yet nary a mainstream originalist will admit to it or reflect upon it, lest originalism appear as instrumental rather than timeless truth. And so, over time, originalism has come to resemble a parody of the ideological contentions that absorbed 20th-century Marxists. The -ists argue over what kind of -ists they and you and me are. Some have dug in their heels on increasingly abstruse semantics; others have attacked the true-blue -ists’ embarrassingly open flanks. For the diehards, there is Bostock originalism; for renegades and heretics, Adrian Vermeule has a book. I have followed those contretemps on this site and in the law reviews and elsewhere, but only out of the corner of my eye and out of professional necessity. As for the actual Constitution, there’s more to learn from a three-minute record.
I have stated my heterodox positions at public events and on Law & Liberty, but only after UDC. Should I have explained them in the book? My best answer still is “no.” If you tackle meaning and interpretation head-on, or even if you start the inquiry on that note, the meaning-of-meaning contingents will drag you onto their turf and eat you alive, regardless of what you may have to say about the Constitution itself. In that very real sense, interpretive originalism has become the disease it was meant to cure. And so instead, UDC asks its readers—sub silentio, or esoterically if you will, but either way quite plainly—for a certain willful innocence: ignore the meta-theoretical distractions. Instead, approach the Constitution in the spirit that, on the authority of McCulloch, inheres in the document itself: the disposition of the normal, reasonably educated and sensible citizens for whom the instrument was written. You will see, or so it still seems to me, that the right-side-up Constitution’s logic—its nature, genius, spirit—is simply irresistible.