Academic journal article Boston University Law Review

Right Side Up the Ex Ante Heuristic: A Reply to Michael Greve

Academic journal article Boston University Law Review

Right Side Up the Ex Ante Heuristic: A Reply to Michael Greve

Article excerpt

I am grateful for the effort Michael Greve put into his review of my book on American federalism.1 I cannot return the favor, however, for I know little of the modern public choice theories that guide his analysis of constitutional issues. I enjoyed and profited from what I did understand of Greve's book, The Upside Down Constitution;2 it confirms my view of the Constitution and the libertarian strain of the American Right. Greve's word craft is especially clever: he calls views like mine "Marxist-Brennanis[m]."3 We will be hearing that one again. A lasting contribution to the polexicon of the Federalist Society.

I was turned off at first, especially by Richard Epstein's appearance in the book's dust jacket. The last time I saw Epstein, he was insulting the intelligence of an American Constitution Society audience by claiming that Chief Justice Marshall's opinion in Gibbons v. Ogden4 was unambiguously states' rights all the way - this despite Epstein's published recognition to the contrary.5 I also felt Greve's book was an imposition on the reader's neck and shoulders. I appreciated the artistry in matching physical format to intellectual content, but - come on! - printing a book upside down went too far, or so I thought. It took me two or three pages to realize that it was the dust jacket that was printed upside down, not the book. Of course, I felt stupid. But Greve would not have expected more from someone who is dumb enough to think the New Deal was a good thing, that deregulation and greed were more responsible for the Great Recession than Barney Frank and Chris Dodd,6 and that the American Right engineered the deficit crisis to substitute for an unsuccessful moral argument against what it calls the "welfare state," as if there were some other kind of state.

Anyway, I turned the book right side up and things went better, or somewhat better, for a while. But not for long. I hit a wall at page eight. There, Greve tells the reader that the truth about federalism and its history "emerges if one recasts the ex ante heuristic into an analytic narrative that clarifies the institutional actors' 'in-period' incentives."7 Good thing I read that right side up; I would have had a stroke reading it upside down. Then admiration set in: It takes real self-assurance to put a sentence like that in an introductory chapter, where most writers try to make readers feel comfortable before hitting them with the heavy stuff. Manhood challenged, I said, "Hell, if Greve can recast the ex ante heuristic, I can too." So I worked at the sentence and finally figured it out. What Greve is saying, I think, is that if we look at the Constitution in the manner that the Founding Fathers did before ratification, we can better understand both what they sought to accomplish and the Constitution's subsequent fate. Pumped up by this interpretive achievement, I slogged ahead, and though there was much that I did not have time to work through - this is a book to be studied carefully, not just read - I found much with which I could agree.

First, I agree that we have to understand the Constitution from a framer's perspective (that is a framer's perspective, not necessarily the Framers' perspective). Viewed from any other perspective, the Constitution makes no sense. Viewed from some other perspective, we would have to see the Constitution as we see the word of God - something to obey whether it makes sense or not. I do not see the Constitution as the word of God, and neither does Greve. From the Framers' perspective, the Constitution was a mere proposal, to be voted up or down, as likely or not to facilitate progress toward public goods. Greve realizes that, as a means to an end, the Constitution will ultimately be judged by its results.8 This makes Greve an ends-oriented constitutionalist. Greve and I both follow James Madison in Federalist 45, where the Constitution's leading end is described as "the real welfare of the great body of the people. …

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