The Upside-Down Constitution
Co-sponsored with the Federalist Society
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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.

Agenda

3:30 PM
Registration

4:00 PM
Panel Discussion

Panelists:
Christopher DeMuth, Hudson Institute
Michael S. Greve, American Enterprise Institute
Rick Hills, New York University Law School
Benjamin Wittes, Brookings Institution

Moderator:
Brett Kavanaugh, United States Court of Appeals, D.C. Circuit

6:00 PM
Adjournment

Event Contact Information

For more information, please contact Elizabeth DeMeo at [email protected], 202.862.4876.

Media Contact Information

For media inquiries, please contact Véronique Rodman at [email protected], 202.862.4871.

Christopher DeMuth is a distinguished fellow at the Hudson Institute. He was president of AEI from 1986 to2008 and D.C. Searle Senior Fellow from 2009 to 2011. Before coming to AEI, Mr. DeMuth was administrator for information and regulatory affairs in the Office of Management and Budget and executive director of the Presidential Task Force on Regulatory Relief in the Reagan administration. Mr. DeMuth’s writings on government regulation, constitutional law and other subjects have appeared in a variety of publications and can be found on his personal website,  www.christopherdemuth.com.

Michael S. Greve is the John G. Searle Scholar at the AEI. He also heads AEI’s Transatlantic Law Forum. Before coming to AEI, Mr. Greve co-founded and, from 1989 to 2000, directed the Center for Individual Rights, a public interest law firm. Mr. Greve currently chairs the board of the Competitive Enterprise Institute and is a frequent contributor to the Liberty Law Blog. Mr. Greve has written extensively on many aspects of the American legal system. His publications include numerous law review articles and books, including “The Demise of Environmentalism in American Law” (1996), “Real Federalism: Why It Matters, How It Could Happen” (1999) and “Harm-less Lawsuits? What's Wrong With Consumer Class Actions” (2005). He is the coeditor, with Richard A. Epstein, of “Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy” (2004) and “Federal Preemption: States’ Powers, National Interests (2007); and, with Michael Zoeller, of  “Citizenship in America and Europe: Beyond the Nation-State?” (2009). His most recent work is “The Upside-Down Constitution” (2012).

Roderick Hills teaches and writes in a variety of public law areas – constitutional law (with an emphasis on doctrines governing federalism), local government law, land-use regulation, jurisdiction and conflicts of law, and education law. His interest in these topics springs from their common focus on the problems and promise of decentralization.  His articles have been published in the Michigan Law Review, Harvard Law Review, Stanford Law Review, The Annals of the American Academy of Political and Social Science, Supreme Court Review, Northwestern University Law Review and The Harvard Journal of Law and Public Policy. In addition to being a scholar and teacher, Mr. Hills has been a cooperating counsel with the American Civil Liberties Union for many years, filing briefs in cases challenging denial of domestic partnership benefits to same-sex couples (Pride at Work v. Granholm), exclusion of prison inmates from the protections of state anti-discrimination  law (Mason v. Granholm), denial of rights to challenge prison guards’ visitation by family members for prison inmates (Bazzetta v. McGinnis) and discrimination of recently arrived indigent migrants in public assistance (Saenz v. Roe). He served as a law clerk for the Hon. Patrick Higginbotham of the U.S. Court of Appeals for the Fifth Circuit, and has practiced law in Boulder, Colorado.

Brett Kavanaugh was appointed to the U.S. Court of Appeals for the D.C. Circuit on May 30, 2006. Since joining the Court, Judge Kavanaugh has taught full-term courses in Separation of Powers at Harvard Law School, in National Security and Foreign Relations Law at Yale Law School and in Constitutional Interpretation at Georgetown University Law Center.  From July 2003 until his appointment to the court in 2006, he was assistant to the president and staff secretary to President George W. Bush. From 2001 to 2003, Mr. Kavanaugh served as associate counsel and then as senior associate counsel to President Bush. From 1994 to 1997, and for a period in 1998, Mr. Kavanaugh was associate counsel in the office of independent counsel Kenneth W. Starr. He was a partner at Kirkland & Ellis in Washington, D.C., from 1997 to 1998 and again from 1999 to 2001. During October Term 1993, Judge Kavanaugh served as a law clerk to Anthony M. Kennedy of the U.S. Supreme Court. From 1992 to 93, Mr. Kavanaugh worked as an attorney in the office of the Solicitor General of the United States. After law school, he served as a law clerk to Walter Stapleton of the U.S. Court of Appeals for the Third Circuit and then for Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

Benjamin Wittes is a senior fellow in Governance Studies at The Brookings Institution and co-director of the Harvard Law School-Brookings Project on Law and Security. He is the author of “Detention and Denial: The Case for Candor After Guantanamo” (2011) and coeditor of “Constitution 3.0: Freedom and Technological Change” (forthcoming). He is also in the process of writing a book on data and technology proliferation and their implications for security. He is also the author of “Law and the Long War: The Future of Justice in the Age of Terror” (2008) and “Legislating the War on Terror: An Agenda for Reform” (2009). He co-founded and co-writes the Lawfare blog which is devoted to non-ideological discussion of the "Hard National Security Choices," and is a member of the Hoover Institution's Task Force on National Security and Law.

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