The Upside-Down Constitution

Michael Greve has written the best book on American federalism in years. One need not agree with his general argument in order to find constant stimulation and illumination in every chapter. No one interested in American constitutional development (and its future) can afford to ignore this book. -- Sanford Levinson, author of Framed: America's 51 Constitutions and the Crisis of Governance Political events and extraordinary scholars have made this a golden age of argument about the Constitution. One of those scholars, Michael Greve, argues that promoting federalism--in the conventional sense of states' rights or the Tenth Amendment--may promote a greater quantity and poorer quality of government. This may seem counterintuitive, particularly to conservatives, but not to those who remember why various states' policies convinced James Madison that the Articles of Confederation had to be replaced by the Constitution. -- George F. Will Michael Greve is one of the most creative thinkers today about the Constitution's deep structures. In this remarkable reinterpretation of American federalism, he argues that competition between states is central to the Constitution's political goals. This brilliant book will turn your complacent conceptions about the American Constitution upside down. -- Jack M. Balkin, author of Living Originalism and Constitutional Redemption A learned, yet eye-opening and provocative analysis of one of the perpetual dilemmas of our federal system. Mr. Greve's quite significant contribution to our understanding of this complex subject will cause considerable rethinking of much conventional wisdom and deeply rooted dogma. -- Theodore B. Olson The Upside-Down Constitution tackles in a fast-paced and no-nonsense style the full range of issues that surround the transformation of American federalism from the founding period to today. No naive originalist, and no free-form modernist, Greve skillfully shows how the original plan that supported competitive federalism has given way to a misguided New Deal synthesis that works to enrich politicians at all levels of government at the expense of the ordinary individuals whom our Constitution was intended, today as always, to protect. -- Richard A. Epstein, author of Design for Liberty

The Constitution’s vision of federalism in which local, state, and federal government compete to satisfy preferences of individuals has given way to a cooperative, cartelized federalism that enables interest groups to leverage power at every level for their own benefit. Greve traces this inversion and dispels much received wisdom along the way.

Over the course of the nation’s history, the Constitution has been turned upside-down, Michael Greve argues in this provocative book. The Constitution’s vision of a federalism in which local, state, and federal government compete to satisfy the preferences of individuals has given way to a cooperative, cartelized federalism that enables interest groups to leverage power at every level for their own benefit. Greve traces this inversion from the Constitution’s founding through today, dispelling much received wisdom along the way.

The Upside-Down Constitution shows how federalism’s transformation was a response to states’ demands, not an imposition on them. From the nineteenth-century judicial elaboration of a competitive federal order, to the New Deal transformation, to the contemporary Supreme Court’s impoverished understanding of constitutional structure, and the “devolution” in vogue today, Greve describes a trend that will lead to more government and fiscal profligacy, not less. Taking aim at both the progressive heirs of the New Deal and the vocal originalists of our own time, The Upside-Down Constitution explains why the current fiscal crisis will soon compel a fundamental renegotiation of a new federalism grounded in constitutional principles.