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.
I. A COMPETITIVE CONSTITUTION
A. THE ORIGINAL CONSTITUTION
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. …