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.

















than state government. Madison, of course, articulated just that expectation— not as a vague speculation, but as a central argument for the union and in the form of the worked-out theory of Federalist 10. On that theory, it becomes exceedingly difficult to think of an argument for federalism. It is much more natural to think that the states “as states” should be abolished; and sure enough, Madison (as well as Hamilton) took precisely that position early on. However, the “Father of the

seems to me, is that the proposed Constitution, while retaining the states, was still compatible with the constitutional premise that the project had to rest on the real welfare of the people, as opposed to the interests of states. Publius insists on that premise throughout, and emphatically. Citizens and States In mid-June 1787, barely a few weeks into the Convention, James Madison and his allies grew increasingly dismayed. Edmund Randolph, who was Foundations • 46 supposed to shepherd

reflects the calculus of preconstitutional individuals. For them (unlike for state officials), the degree of decentralization per se is inconsequential; what matters is to protect competitive federalism against both state defections and central monopoly. It is impossible to know in advance how these twin risks will shake out—in particular, how much central intervention will be required to sustain competitive conditions. 20 The way to deal with the known unknowns is to cabin the range of outcomes

corporations to operate outside the state—enacted the fi rst truly general corporation statute, a prototype of modern American corporate law. A key provision of the statute made New Jersey charters available to corporations domiciled in other states, so long as they had an office and an agent in New Jersey. The law imposed filing fees and franchise taxes, but the rates were low and imposed on a tax base (capital stock) that left nothing to the discretion of tax administrators. Evidently, the New

Progressives. Much of that ascendant political movement’s agenda was to forestall the states’ “race to the bottom.” The Progressives’ uncharitable view of state competition will play a large role in Part III; my observations here concern the Old Court’s inadequate response. The best illustration is Hammer v. Dagenhart (1918), the famous “child labor” case. In defense of the federal statute barring the interstate shipment of goods produced in factories that employed child labor, the federal

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