Constitutional Theory and Political Science in Michael Greve’s, The Upside-Down Constitution
For the symposium on Michael Greve's The Upside Down Constitution (Harvard University Press 2012).
As a work of constitutional analysis, I don’t know what to make of Michael Greve’s book. It seems to consist of criticisms of Supreme Court opinions and doctrines (championed by both sides in the federalism debates), but is essentially silent on what he thinks the various constitutional provisions relating to federalism mean, which is what constitutional interpretation is all about. It is fairly clear what kind of federalism Greve thinks would be desirable, but it is far from clear whether he thinks that kind of federalism is constitutionally mandated, or whether competing versions of federalism should be treated as unconstitutional.
Despite the word “Constitution” in its title, Greve’s book is better understood as a work of political science than of constitutional law. Here it succeeds brilliantly. After reading this book, surely no one will use the term “states’ rights” as a shortcut for constitutional federalism. Greve’s favored version of federalism, competitive federalism, is primarily a structural restraint on state governments, rather than an empowerment. And no one will again make the mistake of thinking that national legislation necessarily derogates from the authority of state governments. Just as regulation often benefits some businesses – usually the large and well-connected – at the expense of other businesses, national legislation often enables state governments to engage in taxation and regulation that would be counterproductive in an environment of competitive federalism.