Post- Event Summary

The problem isn't too little federalism, argues Michael Greve, but the wrong kind of federalism. At a Tuesday AEI and Federalist Society event, panelists examined Michael Greve’s groundbreaking legal text, "The Upside-Down Constitution." Judge Brett Kavanaugh opened the panel and set the stage for Greve to begin discussion. Greve started with an overview of his book, highlighting how it challenges conventional legal theory and rails against current opinion. Chris DeMuth then characterized the book as a "seminal moment in American constitutional thought and American constitutional law." Comparing the book's importance to that of the works of legal scholar Robert Bork and former Attorney General Edwin Meese, DeMuth presented "The Upside-Down Constitution" in the context of our nation’s watershed legal moments. Though there will no doubt be intellectual challenges to the book, DeMuth noted, he is confident that it will ultimately be accepted and assimilated into legal theory as a landmark text.

Rick Hills continued the discussion by analyzing the book through the lens of fiscal federalism. He examined central themes of mobility between states and debt reduction and used this analysis as a basis for disagreement with a number of Greve's arguments. Ben Wittes then proceeded to address two core themes, the first of which was the difficulty in reconciling modern federalism with the Founding Era. Wittes's second theme was the importance of the Civil War amendments and the federalism revolution they represent. He argued that many of the outcomes described in the commercial and regulatory space as New Deal-era inversions actually have spiritual roots in the Reconstruction era vision of an empowered national government. Following the individual panelist presentations, Judge Kavanaugh concluded the discussion, led discussion among the panelists and opened the floor for audience questions.

Event Description

Conservative pundits and politicians have long advocated "federalism" and "devolution" as remedies for the ill effects of an overbearing, meddlesome government. However, excessive centralization in some dimensions has gone hand-in-hand with excessive decentralization in others. Witness mounting state debts and bets on federal bailouts, state attorneys general on the prowl against national industries and trial lawyers' class actions in "hellhole" jurisdictions. The problem, Michael Greve argues in his provocative new book, "The Upside-Down Constitution," is not too little federalism but the wrong kind of federalism. Constitutional federalism institutionalizes competition among states, the better to discipline politics. Our contemporary federalism operates on the opposite principle--pervasive state cartels, for the purpose of facilitating interest group politics and exploitation. More federalism of that kind means more fiscal profligacy and political irresponsibility.
In exploring federalism's pathologies, Greve takes aim both at the New Deal's progressive heirs (who champion upside-down federalism) and at the advocates of clause-bound "originalist" constitutional interpretation. The financial crisis will compel a painful renegotiation of the country's federalism arrangements. "The Upside-Down Constitution" argues that a reorientation toward constitutional forms and arrangements will require a wholesale reformulation of conservative jurisprudence.

At this AEI event, Michael Greve will discuss his new book, along with panelists Christopher DeMuth (Hudson Institute), Rick Hills (NYU Law School) and Ben Wittes (Brookings Institution). The discussion will be moderated by Judge Brett Kavanaugh (U.S. Court of Appeals, D.C. Circuit). Books will be available for purchase following the discussion.

If you would like to purchase Michael Greve's new book, please click here.