Turning Federalism Right-Side Up

By Somin, Ilya | Constitutional Commentary, Fall 2012 | Go to article overview
Save to active project

Turning Federalism Right-Side Up

Somin, Ilya, Constitutional Commentary

THE UPSIDE-DOWN CONSTITUTION. By Michael Greve. (1) Harvard University Press. 2012. 528 pp. Cloth, $39.95.


Michael Greve's The Upside-Down Constitution is one of the most important works on constitutional federalism in years. It is the best exposition to date of the idea that the American Constitution establishes a federal system primarily devoted to promoting competition between state governments. It is also probably the most comprehensive critique of the traditional view that federalism is really about promoting the interests of state governments. As Greve recognizes, state governments rarely want to compete, often preferring to establish cartels among themselves (pp. 8-9, 189-94).

Much previous scholarship has explored the advantages of interstate competition, (3) and the idea that the enforcement of federalism cannot be equated with promoting the interests of state governments. (4) But Greve's book is by far the best and most comprehensive application of these ideas to constitutional interpretation.

Greve praises the original Constitution for creating an effective system of interstate competition (chs. 2-3) and the nineteenth and early twentieth century Supreme Court for enforcing it (chs. 4--7). But he warns that the system has broken down over the last eighty years, replacing competition with cartels and what he considers to be dysfunctional empowerment of state governments (chs. 8-11). He argues that American federalism has now reached a crisis point from which we must either restore some of its earlier, more competitive, structure, or face a decline similar to those that have beset several other federal systems (pp. 279-80, 380-97).

The post-New Deal "inversion" of priorities, from maintaining interstate competition to fostering cartels and cooperation, is what gives the book its provocative title. To turn the Constitution right side up, Greve contends, we will have to rediscover the virtues of competition.

In Part I, I describe Greve's argument, focusing especially on the ways in which it enhances our understanding of the history of constitutional federalism. Part II addresses a potential internal contradiction in Greve's position. While he emphasizes the need for the judiciary to enforce a competitive regime and recognizes that the federal government often has incentives to promote cartelization (pp. 8-9, 192-93), he endorses a broad interpretation of congressional authority under the Commerce Clause and the Spending Clause which effectively gives Congress a blank check to suppress competition in some of the ways he deplores (pp. 162-65, 250-58,343-46).

Part III briefly considers a second tension in Greve's analysis. Greve pins his hopes on originalism as the best possible way to restore a competitive federalist Constitution (pp. 394-96), though he suggests that it should be an originalism that views the Constitution as an integrated whole, rather than narrowly "clause-bound" (p. 393). While he argues that the original Constitution establishes a competitive structure (ch. 3), he also recognizes that the Founders paid little attention to interstate mobility and competition (pp. 56-61). These two positions are not completely irreconcilable. But they are more difficult to square than Greve sometimes allows.



Greve's central argument is that "the commitment to competitiveness is hardwired into our Constitution's structure" (p. 389), indeed that "[t]he United States has the single most pro-competitive constitution in the world" (p. 330). In a fascinating discussion of the original 1787 Constitution, Greve shows how various seemingly disparate provisions came together to force states to compete with each other for people and businesses, and limited their ability to establish anticompetitive trade barriers and otherwise interfere with interstate commerce (ch.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Turning Federalism Right-Side Up


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?