The Upside-Down Constitution

Michael S. Greve

reviewed by James A. Gardner

Law & Politics Book Review
July 2012

Perhaps you, like Keanu Reeves in the film The Matrix, sit at your desk each day with the vague impression that something about the world is deeply wrong, but you cannot quite put your finger on the problem. Michael Greve, the John Searle Scholar at the American Enterprise Institute, would like to be your Morpheus. In this sprawling, idiosyncratic, and often frustrating book, Greve reveals The Truth: the problem, at least in the United States, is federalism, which has not merely run off the rails, but has become literally inverted, promoting what it was designed to prevent, and preventing what it was designed to promote. In a book that aspires to be simultaneously a work of political economy, constitutional history, and doctrinal critique, and that along the way also attempts a biting, corrective intervention into contemporary conservative constitutional theory, Greve explains how true federalism’s demise, and its replacement with an imposter, has caused such misery.

Greve’s basic claim is that, over the course of the twentieth century, the Constitution was “revolutionized.” By this he means much more than the conventional, and undeniable, proposition that the meaning of important provisions of the Constitution, such as the Commerce Clause, changed over time. Instead, he means something much bolder and more specific: the most significant structural provisions of the Constitution, he argues, “have come to assume the opposite of their reasonable meaning” (p.2). Greve is quite serious about both aspects of this contention. The Constitution, he maintains, has come to mean precisely the opposite of what it really means – hence the “upside-down” Constitution of his title – and that meaning is contrary to its only reasonable meaning.

The upshot of this claim, of course, is that we now live in an era characterized by a particular kind of madness. It is not just that time and events have frayed or eroded the constitutional scheme, or that its administration by actual human beings in actual circumstances has resulted in its gradual evolution. No. The document has been turned cleanly upside down; we as a society have stepped through the looking glass to the other side. If the constitutional world seems insane to you, Greve brings good news: you are not the crazy one. The clarity and pungency of this message, and the consistency with which it is delivered, is the source of the book’s occasional strengths, but also of its considerable weaknesses.

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