May 17, 2012
“I must study politics and war, that my sons may have liberty to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce, and agriculture, in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry, and porcelain.”
Breaking Adams’ Curse
O’ toiling lawyer, for God’s sake put down the brief. Set aside that contract. Review those documents later. And pick up or click into Michael Greve’s The Upside-Down Constitution—a logically rigorous, practically relevant exploration of America’s constitutional foundations, development, and discontents.
Mr. Greve’s subject is the present condition of American constitutionalism. To get at the subject, he explores the Founding’s first principles and traces their development to the present day. More specifically, the book is about constitutional logic. (By one count, some form of the word “logic” or phrase “constitutional logic” appears on average once every five pages.) It’s about how, in Mr. Greve’s view, our own Constitution’s logic has been turned upside down over time by forgetfulness.
Mr. Greve studies the Constitution’s current health by looking through a lens of 200-plus years of American federalism. It turns out that a federalism lens, in Mr. Greve’s hands, can illuminate the Constitution’s logic and its alleged inversion over the last 75 years. But The Upside-Down Constitution is about constitutionalism, not federalism, and it is about logic, not policy. The Upside-Down Constitution is about federalism and policy in the same way Moby‑Dick is about a whaling voyage.
Readers familiar with Mr. Greve will be happy to find that his wit remains in evidence throughout. They may be bewildered to find that he betrays a decided ambivalence toward prevailing “conservative” modes of constitutional interpretation and even toward federalism itself.
Mr. Greve’s sweeping thesis is that the Constitution’s foundational principles have been forgotten—and inverted—by all sides to the current constitutional debates and, worse still, this forgetting and inversion are principal causes of “our current institutional dysfunctions, public discontents, and fiscal imbalances.”
In fact, says Mr. Greve, we have lost our way in a sea of misguided and disconnected erudition. Our Supreme Court crafts magnificent decisions in some cases, but miscarries badly in others. One of our law professors, Bruce Ackerman, recently and “to his enormous credit” recovered “the Founders’ idea of constitutional politics that differs from ordinary politics in kind and in normative force.” But those “real achievements” were at the same time “clouded” by Professor Ackerman’s “outlandish interpretation of the New Deal as a free-form constitutional convention and amendment process.” Our economists profitably and systematically explore predictive models of the behavior of public officials. Our political scientists pursue an “academic boomlet” in studies of constitutional development. No one pulls all the pieces together, however, largely because no one has proved capable of explaining the full depth and extraordinary genius of the Founding.
While bench, bar, and ivory tower contentedly noodle away, real-world problems refuse to wait. Our politics has become a “shrill debate.” Our opinion surveys find “record-low public confidence in our political institutions.” It has begun “to dawn on members of the body politic that the cause of the present fiscal crisis” may be “structural,” not “purely cyclical.”
In the midst of this discouraging picture, Mr. Greve finds what solace there is to be had in the Founding itself. The Founders “knew that their bold effort to establish constitutional order for themselves and their posterity carried a risk, to the point of certainty, of an unintended turn—perhaps even an inversion.” But they worked “in fulsome hope that future generations might remember what the Founders were getting at and perhaps, in light of experience and improved knowledge, understand the Constitution’s genius in ways surpassing the understandings even of the Founders themselves.”
To this day, says Mr. Greve, the Founders’ own constitutional understandings go “far beyond” those of “modern-day jurists, political scientists, or economists.” But we can no longer afford our ignorance. We are cursed today by John Adams’ far‑too‑fully‑granted wish—that we his grandsons might avoid hard studies in “politics and war” and take up fuzzy studies in “statuary, tapestry, and porcelain.” “[W]e have forgotten an awful lot,” says Mr. Greve. And we “find ourselves in dire need of remembering it.”
America’s Constitution and Its Discontents
If prophesy like this seems discordant, it may seem less so if one considers Mr. Greve’s earlier work. The Upside-Down Constitution is Mr. Greve’s second major book. His first, Real Federalism: Why It Matters, How It Could Happen, was by comparison full of sunshine and hopefulness. There, Mr. Greve described the advantages of a “real” and liberating “competitive” federalism, together with the contours of a political movement that, Mr. Greve had thought, might rally to its banner and help achieve its (partial at least) implementation. The hope was not fulfilled.
Mugged by reality, Mr. Greve thinks now that hopes for better federalism have not been fulfilled because under current conditions they cannot be fulfilled. Our Constitution has become hard-wired by misinterpretation to frustrate such efforts and entrench “Them the States and Factions” as against “We the People.” We the People, for our part, wander aimlessly. We flail, and we fail in our attempts at reform. Cursed sons of Adams, we lack even a constitutional vocabulary to describe our predicament.
A Few Good Premises
The keys to these conundrums and the book as a whole lie hidden in plain sight in the book’s eloquent, densely argued introduction. Those 17 pages merit careful reading and re–reading. Especially telling are the Introduction’s opening citations to primary sources. They define the foundational ideas of American constitutionalism according to Mr. Greve.
These foundational ideas are, first, Alexander Hamilton’s insistence in opening The Federalist that it has been “reserved” to Americans to “decide the important question” whether societies are “really” capable “of establishing good government from reflection and choice” and not “accident and force”; second, Chief Justice Marshall’s McCullough v. Maryland statement that constitutions must be “adapted to the various crises in human affairs”; and, third, James Madison’s “if men were angels” observation from The Federalist—the “great difficulty” in forming a government “which is to be administered by men over men” is that “you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Mr. Greve reads these sententious and very public statements primarily according to their centuries-old public meaning. But he reads them also and importantly according to how they (sometimes unwittingly) have been reflected and illuminated in the thought prisms of modern jurisprudence, economics, and political science of various ideological and disciplinary stripes—law professor Bruce Ackerman, Nobel economist James Buchanan, constitutional development theorist Ken I. Kersch, political scientist Keith E. Wittington, the Justices of the United States Supreme Court, and others.
These few bedrock constitutional principles, together with the essential further assumption of the Founders’ genius and benevolence, become Mr. Greve’s springboards to an extended set of predictions regarding the federalism elements we should and should not expect to find in the paper document we read today. And those predictions are in turn employed to revolutionize received theories of originalist constitutional construction, the New Deal constitutional revolution, and constitutional interpretation as a whole.
If your legal training or political interests have caused you concern about divisions in our political and legal culture, or if you are intrigued by a truly new approach to interpretation (rooted in the Founding, not someone’s moralizing), you should invest the time and grapple with Mr. Greve’s analysis.
The Founding Achievement
Mr. Greve emphasizes as an initial matter the paradoxical nature of any decision in favor of a federal constitution. “In the United States,” Mr. Greve asks, “what good are the states?” This question, he finds, “turns out to be very close.” Any decision to entrench multiple state governments necessarily means the entrenchment of multiple state political elites, and those local elites, sure as the sun shall rise, will be “prone” to abuse their citizens. Why would any sane, public‑spirited person want that?
For two reasons, it turns out. For one, the “first-order choice (federalism yea or nay) is often foreclosed,” as it was to the American Founders. If “there was to be a union at all” in 1787, “some form of federalism was a forgone conclusion.” For another, the signal advantage “of entrusting a second set of junior governments with authority over the same citizens and territory” is that this division of authority can be used “to oblige government to control itself.”
Our Founders, says Mr. Greve, made Madisonian virtue of historical necessity. They did so by deeply embedding structural (as opposed to expressly textual) “competitive” federalism principles into the Constitution. Those principles aim to “oblige” government at all levels “to control itself.” They function, in the first place, by largely limiting “the central government to procuring public goods that can be provided only at that level” and, in the second place, by enabling mobile citizens “to choose among varying bundles of public services and the taxes that come with them,” thus forcing “the junior governments to compete for productive citizens and firms.” Our federalism is, properly speaking, a federalism for disciplining governments, both state and federal. It is a federalism for the people and against the political elites—including most especially state political elites.
So far, so simple, so vaguely familiar. All we need to do today, it could appear, would be to revere our Founders, read what they wrote into the Constitution, follow instructions, and parade-step our way to good government. This is the fatal mistake of those who adhere to what Mr. Greve calls “academic originalism.”
It turns out that the academic originalists’ parade, by wise constitutional design, has no leader—or at least none visible to the naked eye. “Famously,” says Mr. Greve, federalism “is not ‘in’ our Constitution (although it is ‘in’ many others).” Our Constitution, it turns out, is not “just any old constitution, but a deliberately minimalist constitution that makes politics possible but confidently leaves its shapes and outcomes to future generations.” To be properly adapted, in John Marshall’s words, to “various crises in human affairs,” a constitution must be “minimalist” in this sense. Our Constitution is thus, for Mr. Greve, “a common law constitution,” and it could not be otherwise without straightjacketing future generations.
To understand such a minimalist constitution, we cannot simply read it. We cannot understand individual clauses without first understanding the whole. And before we can do that, we must tarry long over what the instrument is and what it is intended to do. Above all, and strange as it may seem, we must classify it. We must understand the answers it gives to the enduring questions it must necessarily confront—above all, the perennial men-are-not-angels dilemma.
Mr. Greve insists that, in confronting the obstacles to good government found at all times and in all places, our Founders embraced a nearly pure instance of what Mr. Greve, following modern social science, calls “competitive” constitutionalism. For Mr. Greve, the Constitution is therefore not a contract (although it has “contractual elements”) but a “coordination device.” It enshrines “decision rules” not “distributive consequences.” It reflects a “constitutional choice by a single, sovereign people” looking ahead centuries to a very distant time horizon. It is emphatically not “a mere bargain among interests, states or elites.”
It happens, says Mr. Greve, that our Constitution’s individual clauses (together, importantly, with the “great” constitutional “silences”) cohere into an elegant, workable, nearly miraculous whole. And it follows that true constitutional advances may be achieved only with great difficulty and only intermittently at “constitutional moments” when the whole people, as opposed to a majority “faction,” has achieved consensus on needed improvements—moments likely to arrive only via some recent unmasking and dearly bought defeat of a pervasive and seemingly plausible constitutional heresy.
Indeed, if people’s “loyalties to some other collective entity—a tribe, an organized religion, a preexisting state—run too deep,” constitutional lawmaking in the American sense becomes impossible. Because loyalties to the Constitution, qua Constitution, are likely to become magnified and assume primacy only when the Constitution itself is threatened, constitutional peril becomes almost a precondition for meaningful constitutional advance.
The upshots are that ours is a “competitive” constitution, and it may be importantly advanced only expressly, open-endedly, and intermittently. Proper constitutional change, as opposed to deeper understandings of pre-existing provisions and structures, may occur only through express textual amendments, lest the Constitution be buffeted by “accident and force” not “reflection and choice.” Proper constitutional texts, as opposed to ill-conceived attempts to impinge prerogatives of future generations, must remain open-ended, lest the Constitution become a straightjacket. And proper constitutional lawmaking, as opposed to textual clarifications, extensions, and mid-course corrections, may occur only intermittently—at centuries-long intervals when those rare “constitutional moments” arrive.
All History at a Glance
As if all the above were not quite enough for one volume, it turns out there is much, much more. The Upside-Down Constitution is laid out in five parts that traverse all constitutional history in dialectical fashion. The initial thesis (Part One) is the Founding. It is for Mr. Greve—as advertised by its admirers—an achievement to the fullest extent practically possible at the time, a novus ordo seclorum, a true, qualitative advance in the theory and practice of good government. Beginning immediately thereafter comes the Founding’s elaboration, largely by the Supreme Court and from the Republic’s earliest days up to the New Deal, in the form of the concrete legal doctrines of a “Competitive Federalism” (Part Two).
Next come the New Deal’s antithetical “Transformation” (Part Three) and its extensions and elaboration into what the Supreme Court has called “Our Federalism” (Part Four). As a result of these transformations, the Founders’ federalism is upended. Thesis becomes antithesis, and what had been government for the People becomes government for the governing elites. Directly contrary to the Founders’ intentions, the New Deal Constitution is “solicitous” of the interests “of the political class in accumulating surplus.” It “unleashes factions (now more charitably called ‘interest groups’) to clamor for a share of the surplus.” “In pursuit of those objectives,” it “celebrates political instability.”
Mr. Greve, as you likely guessed, makes “no bones” about his own “normative priors.” The New Deal’s “cartel federalism,” says Mr. Greve, dangerously “empowers government at all levels.” It is not only “pathological,” but “quite probably worse than wholesale nationalization.” “A federalism of ‘Them the States and Factions’ is coherent in its own warped way. But constitutionally plausible it is not.”
Finally, comes Mr. Greve’s partial synthesis—his analysis of the “State of Our Federalism” (Part Five). This turns out to be both better and worse than what one might expect. On one hand, the picture is meaningfully hopeful. The Supreme Court in the Rehnquist and Roberts eras has learned from history. Unlike the New Deal Court, those Courts have taken the Founders seriously. Unlike the pre-New Deal “Old Court,” those Courts have consciously eschewed empty “formalisms.” Special praise here is offered for specific Rehnquist and Roberts Court decisions, including (for example) the seemingly run-of-the-mill decision in Polar Tankers v. City of Valdez (2009).
Writing on the clean slate of a constitutional provision not recently adjudicated, Mr. Greve finds Polar Tankers avoiding the types of errors characteristic of both the Court’s New Deal and pre-New Deal decisionmaking. Unlike New Deal opinions, Justice Breyer’s Polar Tankers opinion recognizes what’s really going on; namely, the state of Alaska’s thinly disguised attempt to tax interstate commerce for Alaska’s own benefit. But in contrast to many pre-New Deal opinions, the basis for invalidating Alaska’s law is not some indefensible “formalistic” distinction. It is, rather, a frank and open application of a “principle against circumvention” of express constitutional texts—a logical principle that has operated “from time immemorial” in a wide variety of legal cultures and settings.
On the other hand, says Mr. Greve, even the Roberts Court is not going far enough or moving fast enough. The Court continues to permit state raids on the commerce of the United States by failing to rectify past mistakes made under comparatively obscure doctrinal headings such as diversity jurisdiction, federal abstention, personal jurisdiction, conflict of laws, federal common law, federal preemption, and the Contract Clause, among others. The Court continues to permit (or even to lead) federal raids into local concerns of manners and morals. And, says Mr. Greve, the Court largely throws up its hands at the urgent fiscal crisis brought about by “cooperative” spending programs—programs that have brought both states and the federal government to the point of a fiscal precipice.
A Revolution in Constitutional Thinking
To follow Mr. Greve’s example and declare “normative priors,” I should say here that I believe this book, together with the variations and elaborations on its themes I expect to see in coming years, will prove over time to be the best and most influential academic treatment of American constitutionalism, by far, ever. (I should say also that, according to the book’s acknowledgements, I am one of a trio owed “a particular debt of gratitude,” along with Chris DeMuth, who hired Mr. Greve as a scholar at the American Enterprise Institute and sponsored the project in multiple ways, and Professor Richard Epstein, who has co-edited scholarly books with Mr. Greve. I reviewed and extensively commented on drafts of the book while it was in composition.)
To be sure, I have important disagreements with Mr. Greve’s analysis and recognize that there can never be a last word on American constitutionalism. Judges who read it may well ask whether the book’s multiple criticisms of retail-level legal doctrines in the wake of the New Deal shouldn’t have come coupled with more thoroughgoing improvement suggestions. Lawyers like me will wonder whether the book’s most innovative doctrinal proposal, its suggestion for new grounds for the old “dormant Commerce Clause,” is any better than the familiar, old grounds that have been proposed and debated for two hundred years.
More fundamentally, even general‑interest readers may ask whether Mr. Greve’s anti-New Deal rhetoric isn’t a tad excessive. Mr. Greve agrees with many prominent and crucial features of New Deal constitutionalism. He specifically agrees with the New Deal’s confirmation of expansive federal commerce and spending powers and the demise of exacting and direct judicial scrutiny of state social and economic laws. Indeed, one of the book’s signal merits is that, by moving to a structural but nonetheless solid plane of argument, it defends the New Deal’s most essential achievements more effectively than the New Deal Court at the time and the New Deal’s ardent admirers in succeeding decades. The great hope here is that Mr. Greve’s book will definitively resolve any simmering constitutional doubts about the New Deal’s essential core in the same way that, decades later, academic researches by Professor Michael McConnell provided a definitive defense of Brown v. Board of Education. In both cases, it turns out, the Supreme Court was righter than it knew at the time.
In fact, Mr. Greve’s pointed, anti-New Deal rhetoric is all the more open to question given his acknowledgment that the Old Court’s “formalism” had run its course and his extensive reliance on political economy literature unknown (because not yet written) in the late 1930s and early 1940s. Add in the flawed historical scholarship of those times, plus recondite logics Mr. Greve knows well but the New Deal Justices found impenetrable, and the New Deal’s failure to proceed directly to structural constitutional understandings in line with Mr. Greve’s seems understandable and (dare we say) excusable.
Constitutional Interpretation 2.0
All that said, it remains true, I believe, that The Upside-Down Constitution will prove over time to be a preeminently influential treatment of American constitutionalism. Read as intended, it has no lineal ancestors but does have a striking analogue in Richard Posner’s Economic Analysis of Law.
In our own day, Judge Posner read common law in the shadow of Holmes but by the light of Nobel economics laureate Ronald Coase and found logical coherence of a type last fully asserted in the eighteenth century by William Blackstone. So Mr. Greve now reads constitutional law in the shadow of Professor Ackerman but by the light of Nobel laureate James Buchanan to assert a logical constitutional coherence last fully appreciated by the Founders.
The book’s audacious argument is that we can and must train our minds to derive the basic elements of our Constitution from a handful of foundational premises. We need to be able to predict what should appear there in order to interpret what does appear there.
As noted, Mr. Greve insists on but few premises. Our Founders worked against a backdrop that made “some form of federalism” a “forgone conclusion.” They knew that men are not angels. They crafted “auxiliary” constitutional “precautions” to protect We the People from Them the States and Factions. They opted wisely for constitutional minimalism. They established decision rules, while leaving future politics to future generations. Favored as they were by circumstance, they were able to compose and enact a document based on “reflection and choice”—and for this reason their document legitimately may be read as a logically coherent whole.
Those few, spare assumptions—without much more than further assumptions of the Founders’ genius and benevolence—gets us, according to Mr. Greve, to where we can place ourselves behind a false veil of ignorance and then use recent breakthroughs in political economy to predict the federalism elements we will and won’t see when the veil is drawn back. We must ask ourselves, by modern lights, what we would predict men of such genius, driven by such benevolence, facing such circumstances, would ordain and establish for themselves and their posterity. And voila, what we have just predicted in false ignorance appears before our eyes—right down to the Tonnage, Compact, and Port Preference Clauses. Now, and only now, the real work of interpretation can begin.
If Mr. Greve’s thesis proves true, an early casualty on the intellectual battlefield will be what is sometimes called “academic” or clause-bound constitutional originalism—the idea that legal texts, including and especially the Constitution, should be interpreted largely or solely according to public understandings of the words at the time they were written. The classic formulation of this strand of interpretive thought may be Judge Bork’s:
The search for the intent of the lawmaker is the everyday procedure of lawyers and judges when they must apply a statute, a contract, a will, or the opinion of a court. To be sure, there are differences in the way we deal with different legal materials, which was the point of John Marshall’s observation in McCulloch v. Maryland that “we must never forget, that it is a constitution we are expounding.” By that he meant that narrow, legalistic reasoning was not to be applied to the document’s broad provisions, a document that could not, by its nature and uses, “partake of the prolixity of a legal code.” . . . Thus, questions of breadth of approach or of room for play in the joints aside, lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words.
The fallacy of this thinking, according to Mr. Greve, is that it acknowledges but still underestimates the vital importance of Chief Justice Marshall’s command that we must never forget it is a constitution we are interpreting. The point of the Great Chief Justices’s pronouncement is not just that constitutions contain “broad provisions” that preclude “narrow, legalistic reasoning.” The actual point, Mr. Greve insists, is that before reading a particular legal text, we must understand the class of document that contains the text. Hence, we also must never forget that it is a statute, or a contract, or a will that we are interpreting, when occasion calls for interpreting those kinds of documents—just as we must never forget, when occasion demands, that it is a constitution we are interpreting. The whole point is that written, binding, legal instruments differ in kind from one another.
The consequence is that, if Step One of constitutional interpretation is (as the Supreme Court likes to say) careful reading of text, then a necessary and logically prior step—call it interpretive Step Zero—is a critical examination of the oft‑overlooked fact that the text appears in a constitution, not some other kind of legal document.
According to Mr. Greve, we must know at Step Zero what constitutions are and what they do, generally speaking. We must examine the particular constitution in question as a whole—including, importantly, what it omits. And we must know a lot about that constitution’s history of interpretation and application. Only in this fashion do we know the function each constitutional element is intended to perform, and only by knowing those individual functions can we discern those elements’ proper scope of application—and unmask attempted circumventions of them as in the Polar Tankers case. We cannot know anything until we see the logical coherence of everything.
The academic originalists’ great mistake lies, therefore, in trying to shortcut the interpretive process by skipping over the hard work of wrestling with the Constitution as a whole before getting down to the brass tacks of its individual clauses. They short-circuit or avoid Step Zero. They short-change the highest-level questions that preoccupied our Founders: What is a written constitution? What should go into and be left out of such a document? What are the “great difficulties” in framing such a document? What relationship is there between the constitutional enactments of a particular time and their application to “posterity”? How can such governance from beyond the grave be legitimate?
Mr. Greve contends that it is only by studying politics from the Framers’ vantage, with such high-level questions in mind, that today’s Americans can correct their constitutional course and right their ship of state. It is against this backdrop that John Adams’ well‑meaning benediction—that his sons and grandsons might avoid studies of “politics and war” and enjoy a quiet life studying everything from “mathematics and philosophy” to “statuary, tapestry, and porcelain”—becomes for Mr. Greve a nation-threatening curse. There is, of course, plenty of political studying still going on. Indeed, judging from The Upside-Down Constitution’s endless endnotes, Mr. Greve has read all of it. But notwithstanding our brimming academic journals, Mr. Greve insists, “we have forgotten an awful lot” that is crucially important.
The New Deal 2.0
If Mr. Greve’s analysis is sound, a second intellectual casualty will be our received wisdoms, both positive and negative, about New Deal constitutionalism. In Mr. Greve’s telling, the twentieth‑century law’s empire of the New Deal resembles the British Empire of olden times—justified as benevolence, impelled by profit (“rent seeking”), acquired in an absence of mind. Mr. Greve asserts in a revealing passage that the New Deal “never even aspired” to “reasoned engagement” in a constitutionally “honorific” sense. This is why, according to Mr. Greve, there is no “New Deal equivalent of the Declaration of Independence, the Federalist Papers, or the Gettysburg address.”
Mr. Greve’s views are thus ironically parallel to those of New Deal historians (like Arthur Schlesinger, Jr.) who see in the political clash over the New Deal a struggle between forces of enlightened benevolence and benighted self-interestedness. But in Mr. Greve’s telling (unlike Professor Schlesinger’s), it is the New Deal, not its opponents, that embodies self-interestedness and reaction.
In this revisionist telling, just as a sovereign monarch used to be duty‑bound to protect the People’s rights against invasions by local dukes and earls, so the sovereign United States Constitution assigns this same function to the federal government—and especially to the United States Supreme Court as the Constitution’s first ambassador to future generations. Not surprisingly, under republican government as under monarchial government, the dukes and earls chafe at their yoke, long to be rid of it, and conspire continuously against the sovereign’s defense of the People’s rights. And in the New Deal era, says Mr. Greve, the local chieftains at last prevailed in a constitutional overthrow, abetted by unique political conditions; informed by practical wisdom acquired over decades of constitutional experience; and enabled by an intellectually shallow or (sorry to say) intellectually corrupt Supreme Court. This narrative is novel, well‑defended, and pointedly expressed. It makes for compelling reading. It will infuriate some of the New Deal’s admirers.
On the other hand, Mr. Greve takes further, albeit less‑impassioned, aim at New Deal constitutionalism’s most ardent detractors. What about the expansion of federal spending powers beyond the bounds of the enumeration of other federal powers by the Constitution? Perfectly legitimate, says Mr. Greve, relying on Alexander Hamilton. What about the expansion of federal authority over interstate commerce to the point of allowing wheat-market cartelization and prohibiting farmers from feeding their own homegrown wheat to their own home-bred cattle? Perfectly legitimate, says Mr. Greve, relying on Chief Justice Marshall. Those results, he says, follow necessarily not only from the public meaning of the relevant texts but also from the structural fact that ours is a “minimalist” constitution.
Concededly, these last propositions may surprise those who’ve read about Mr. Greve in the national newspapers. The New York Times Magazine did a feature article on Mr. Greve and others a few years back, the thesis of which was that Mr. Greve (and these others) were part of a movement to overturn the New Deal and bring back an old version of the Constitution from “exile” in order to achieve a great triumph of constitutionalized libertarian economics. The Upside-Down Constitution dispels such notions. It clarifies Mr. Greve’s belief that Washington can cartelize, regulate, or prohibit practically every economic activity—putting aside the wisdom of doing so.
Less obviously, but equally important, Mr. Greve and the New Deal Justices agree that “the Old Court’s justices”—that is, the pre-New Deal Supreme Court—“failed to realize that the formalism that once had been their strength was rapidly turning into a liability.” On an intellectual plane, then, Mr. Greve sees the New Deal Court’s failing, not in its disavowal of “formalism” or its quest for a new “functional” jurisprudence, but in its inability to attain a functional jurisprudence he finds “constitutionally plausible.”
The bottom line for Mr. Greve is a New Deal Court that could recognize problems but was too inept (or intellectually misguided) to craft solutions. Upon sensing the impossibility of sustaining doctrine based on formalistic distinctions, the New Deal Court could have, for example, shifted the doctrines delimiting the federal government’s enumerated powers from the old “formalisms” to what might be called a “serviceable functionalism”—perhaps by stressing that not everything that happens in the world can be deemed “commerce” subject to federal regulation, but nonetheless interpreting “commerce” meaningfully, functionally, and capaciously to encompass all non-fraudulent, voluntary transactions for value. This is, of course, very close to what the Supreme Court has said and done in the Rehnquist and Roberts eras. Mr. Greve wonders why it could not have happened sooner.
The New Deal is for Mr. Greve a legal sandwich of nourishing meats between moldy bread slices. The nourishing meats are the center of the New Deal, the New Deal constitutional reforms that non-specialists know about—those having to do with expanding federal authority to regulate economic activity; letting loose Social Security-scale federal spending initiatives; letting states run their local monopolies free of direct judicial supervision and correction. Those cases, says Mr. Greve, were correctly decided. Indeed, not only were they correctly decided, they embody a goodly degree of correct (if hazy) constitutional insight.
But this healthy constitutional center comes, according to Mr. Greve, at an intolerably high cost of top-level confusion (or downright ignorance) about constitutionalism as such, plus, its inevitable consequence, near-total disarray in ground‑level doctrine. If there are more than a few oddball instances of New Deal Justices penning decisions that can pass Mr. Greve’s exacting muster in the handling of commonplace constitutional doctrines, Mr. Greve can’t think what those could be. Moreover, Mr. Greve sees all the most characteristic New Deal flaws—ignorance of constitutionalism, doctrinal disarray, persistent confusion—converging, discouragingly, in the New Deal Court’s signature opinion in Erie Railroad v. Tompkins.
For Mr. Greve, Erie is one of “the most central decisions” in “the entire history and architecture of American constitutional law” and represents “the general sense of an entire generation of judges and legal scholars.” Although greatly and importantly qualified by “new” strands of federal common law, Erie, unlike other Supreme Court decisions of like consequence, has avoided serious challenges to its fundamental legitimacy for 75 years now. What could appear more legitimate, after all, than the Supreme Court exercising common-law decisionmaking powers to yield common‑law decisionmaking primacy to state governments, as Erie professes to do?
And yet, according to Mr. Greve, Erie’s supposedly irreproachable, once‑for‑all‑times dismantling of the Constitution’s common-law substructure constitutes the New Deal’s preeminent and irredeemable theoretical and practical mistake. On a theoretical level, Erie rests on premises of “rank” legal “positivism” that are inconsistent, all at once, with eighteenth‑century, nineteenth‑century, and modern understandings of common law. On a practical level, Erie leaves in disarray the ground‑level doctrines implementing the People’s vital interest in protecting their interstate and international commerce from expropriation by state and local governing elites. With the substructure of common law gone, Mr. Greve insists, the Court finds it difficult or impossible, theoretically and practically, to craft workable conflict-of-laws and federal-preemption doctrines. It finds it difficult rhetorically to justify a properly expansive jurisdiction for the federal courts.
And with these doctrines neutered and the federal courts’ jurisdiction restricted, says Mr. Greve, our streams of commerce have come to resemble the rivers of Germany before the Zollverein. Our economic enterprises, in this brave New Deal world, are liable to being taxed or looted without definable limit by every self-interested “interest group” that can win friends and influence people in any state legislature, administrative agency, or attorney general’s office throughout the country.
Mr. Greve’s New Deal is, therefore, truly new. In his telling, nearly all of the New Deal’s supposed doctrinal crimes were legitimate. But nearly all of its supposedly legitimate doctrinal developments were crimes. The New Deal in this telling is every bit as bad as its worst critics had feared. But it is bad for reasons that have lain almost entirely overlooked—until now.
The Promethean Cassandra
Mr. Greve’s new New Deal is as central to his work as is his Founding. Indeed, absent this central figure, one might wonder whence cometh his distinct undertones of controlled outrage and pervasive pessimism. Why such gloomy undertones in a book so redolent with heady overtones of Promethean breakthroughs?
There is of course the prior question of whether those breakthroughs are real. At the end of the day, can it really be that a scholar might return in thought to Liberty Hall; listen intently to what was said and done there; insert those sparkling insights into the context of what has since been said, and done, and learned; and then descend the Liberty Hall steps several years later with tablets etched with the long‑forgotten but newly revalidated principles of ’87—and in the process synthesize swaths of economics, jurisprudence, and political science and resolve the raging debate between partisans of an original Constitution and those of its living doctrinal embodiments? (As Mr. Greve himself says, “I recognize the presumptuousness, and perhaps the implausibility, of my intellectual enterprise.”)
But even (and especially) for readers like me who are inclined to grant the accomplishment of some such feats, a striking fact is the absence of tones of triumphalism from this time-travelogue. It is remarkable that our intrepid Prometheus, having returned from 1787 free of Adams’ curse, delivers himself of Cassandra’s prophesy.
Mr. Greve frets himself by having the courage of his convictions and insisting on the powerful gravitational force of even an inverted constitutional logic. He frets because he believes, deeply, that the Constitution’s structure remains coherent but becomes pernicious when interpreted according to the interests of “Them the States and Factions.” Just as the Constitution’s authentic logic was the great invisible hand benevolently guiding judicial decisions for the good of We the People, back when the Constitution stood upright, so now the inverted constitutional logic forms the present-day stumbling block to decisions being made for our benefit.
When precisely did this inversion from government for the People to government for governing elites become entrenched? According to Mr. Greve, on the morning of April 25, 1938, when Erie was decided. And when, according to Mr. Greve, shall We the People overcome? Some day, surely, but only when the Erie doctrine (albeit probably not the Erie holding) surrenders unconditionally to higher constitutional principle. It is the remote distance of that future day—together with the constitutional toil and torment he predicts for the interim—that so troubles my dear friend, Mike Greve.
* Robert R. Gasaway is a partner in the Washington, D.C. office of Kirkland & Ellis LLP.
Michael S. Greve’s The Upside-Down Constitution is published by Harvard University Press.