Scott Englert, Politics Editor

On March 19 in the Eck School of Law, Michael Greve, a law professor at George Mason University, presented “The Upside-Down Constitution: A Debate on American Federalism.” The event, sponsored by the Notre Dame Federalist Society and Constitutional Studies minor, entailed Greve discussing his most recent publication, The Upside-Down Constitution.

Greve explained that the book  discusses federalism’s crisis, how originalism is not the answer, and is more specifically, “much more about federalism’s political economy.” Consequently, Greve believes federalism “has a lot to do with [the nation’s political crisis].”

Federalism is a judicial and political philosophy which advocates that power be distributed to individual state governments. Today, Greve explained, some elements of federalism are evident. “There has never been a period in American history when states had more power over commerce than they have now,” Greve remarked.

To explain the policy implications, Greve asked the audience to sympathize with a national company which must interact with “50 different regulatory fiefdoms” that each want a share of its business; the circumstances seem less than ideal.

Consequently, the lecturer concluded that the nation needs less federalism of the wrong kind—federalism as previously described—and more federalism of the right kind—a “federalism which disciplines government and makes it more accountable and transparent,” Greve described.

To clarify, Greve further distinguished between the good and bad types of federalism. In short, competitive or constitutional federalism is a federalism which encourages competition between states and hence, produces results. Greve informs that the economist  James Buchanan is among the most prominent proponents of inter-state competition.

Greve believes competitive federalism is “ideal for the United States of today.” Many areas of law in which states could compete—family relations, environment statues, etc.—are now “under the federal regulatory umbrella.”

In contrast, cooperative federalism aims to protect weaker states and hence, leads to inefficiency and wasteful spending. For example, during the last five decades, the real cost of education has tripled. Hurricane Katrina further illustrated the inherent problems of such a system. Grieve humorously identified how President Obama’s Secretary of Education praised the natural disaster for the “physical annihilation of New Orleans’ schools” because it provided the best opportunity to rebuild and re-establish intergovernmental cooperation.

Currently, the situation is bleak. The Affordable Care Act allows states to transfer thousands of employees into exchanges; consequently, the federalist system will face fundamental challenges. Moreover, both parties in Washington are content blaming the other while simultaneously ignoring the underlying federalist issues.

Greve himself is unsure of how exactly federalism should be fixed; however, his book notes that “competitive federalism is not currently sustainable.” Consequently, in the coming months, it is implied that federalism supporters must discover how to centralize inefficient areas of regulatory federalism while simultaneously working to advance good federalism through increased decentralization.

Scott Englert is a senior political science and economics major who enjoyed spring break with great weather and even better companions. Please contact him with questions and concerns at senglert@nd.edu.