Seeking policy resolution from the courts, when you have the votes to do it yourself, is the height of legislative folly.
Many of my contributions to this blog will riff my forthcoming tome on the Constitution and its federalism, cleverly entitled The Upside-Down Constitution. The publisher’s (Harvard University Press) release date is February 15. However, you can already pre-order the book on Amazon.com.
What exactly is “upside-down” about our Constitution? Here’s the general idea:
The United States Constitution rests on a handful of closely related premises. (Let’s call them “Madisonian.”) First: the Constitution has to serve the interests of citizens, not politicians and especially not state politicians. For an emphatic statement see Federalist 45 (To appreciate the depth of Madison’s conviction on this point, note that the verbal bombast in 45 is out of character for him. Even his letters to Dolley sound like they were written by her accountant.) Second: the Constitution has to make politics possible and discipline it against factional abuse. For the general theory see Federalist 10. Third, the Constitution has to ensure stability, both in the sense of institutional durability and of preventing political hyperactivity. For the perils of a “mutable government” see Federalist 62.
Now invert the premises. First: the Constitution must protect the “states as states”—that is, their political elites and hangers-on. Second: the Constitution should facilitate interest group politics. Third: the Constitution should be democratic (and since the demos is fickle, the Constitution should be unstable). There you have the actual Constitution, upside-down. Get used to it: it’s the New Deal Constitution under which we live.
Three quick, depressing notes about that mutt:
- The premises of the New Deal Constitution are deeply entrenched. For the first, see any tribute to federalism’s “balance” from Felix Frankfurter to Anthony Kennedy. For the second, see Carolene Products (1938) and its progeny. For the third, see Justice Breyer’s Active Liberty, or Jeff Rosen’s The Most Democratic Branch, or any Supreme Court effusion on what it deems the country’s “enlightened consensus.”
- The New Deal Constitution is not an exclusive playpen of left-ish “democratic constitutionalists”: many conservatives have been equally fulsome in embracing it. (Protecting “states as states” and making more room for unconstrained politics are key commitments of originalism and “judicial restraint”—no?)
- The raw constitutional text doesn’t offer much of a defense against the inversion of the Constitution’s premises. (There’s no federalism clause, anti-faction clause, or stability clause.) So you can’t correct past constitutional error by stomping your feet on sola scriptura.
What one has to do is to recover the political theory behind the text and then try to rebuild the structure in that light, against that backdrop.