While we wait for Day Two of the Obamacare argument at the Supreme Court, let’s take a detour for the moment to acknowledge what I am certain is going to be regarded as one of the most significant books about the Constitution of our time—a book that will have long shelf life among legal academics and people serious about understanding the Constitution: it’s Michael Greve’s The Upside-Down Constitution, just out from Harvard University Press.
Michael is my colleague four doors down the hall from me at AEI, but I’d say this about his book even if he didn’t have a bulls-eye target taped to my office door right now. His argument is rich and counterintuitive, and therefore seemingly esoteric as it travels grooves well outside the typical “originalism” versus “activist” axis of most conservative analysis of constitutionalism. He thinks we’ve got our understanding of federalism and “states’ rights” all backwards—the point of the Founders’ federalism was to ensure competition between the states and therefore to protect interstate commerce from raids by state interests. But many of today’s simpleminded states’ rights views actually have the opposite effect.
Fortunately, I don’t have to labor through a summary of the book, because Ramesh Ponnuru (one of my guests tomorrow on the Bill Bennett show) has a splendid summary and review of the book in the latest issue of National Review, and it’s available online. It is well worth your time to read the whole thing, especially if you don’t have time to read Michael’s challenging book, but here’s Ramesh’s worthy conclusion about this worthy book:
If there is to be a recovery of the Constitution’s federalism, it will involve a retreat by the federal courts from the culture wars and, simultaneously, a renewed commitment by them to policing the boundaries of state authority over national commerce. A precondition for any such recovery is the conservative intellectual reorientation that Greve is attempting to advance. Thoughtful conservatives understand, as he notes, that the free market is not the same thing as “the opportunistic demands of the Fortune 500.” They ought to begin distinguishing as well between federalism and the desires of state governments.