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11/30/2022

Symposium on Michael Greve's "The Upside-Down Constitution" after 10 Years [Updated]
Michael Ramsey

At the Law & Liberty Forum, a symposium on the tenth anniversary of Michael Greve's important book The Upside-Down Constitution (Harvard University Press 2012).  Here are the contributions:

The Upside-Down Constitution and Its Critics, by Michael Greve (George Mason - Scalia)

The Nature of the Instrument Tells You How to Read It, by Jack Balkin (Yale)

Constitutional Interpretation and the Brooding Omnipresence, by Aditya Bamzai (Virginia)

No Exit, by Justin Walker (Judge, U.S. Court of Appeals, D.C. Circuit) & Benjamin T. Lee (Law clerk, U.S. Court of Appeals, D.C. Circuit)

From the second essay, some interesting thoughts on interpretation from Professor Bamzai:

What justifies the unwritten and uncodified rules of constitutional interpretation? Or are they, like the general federal common law, a brooding omnipresence in the sky?

Let me start with some ground that (I think) I share with Greve on this topic. Unwritten rules govern the interpretation of every document ever written. ...

The fact that readers have to rely on unwritten rules to interpret legal documents by no means renders the interpretive exercise hopeless. Some interpretive rules—such as the assumption that the authors of a Constitution did not write it with a wink and a finger crossed behind their back—simply are far more plausible than any rule to the contrary. (To be sure, the contrary interpretive rule—that the authors of a Constitution lied about its protections—may well be plausible in lawless societies, where the written law is truly nothing more than a parchment barrier.) But because the unwritten interpretive rules cannot be found solely within the written text, one must derive them in some fair way.

In my view, the unwritten rules that form the core of modern-day originalism rest upon a particularly robust understanding of the Aristotelian maxim that “like cases should be treated alike.” Just as a set of rules govern the interpretation of contracts and statutes, so too (originalists argue) similar rules should govern the interpretation of the Constitution. Thus, to the extent structure, logic, and purpose, properly understood, are relevant for interpreting the former (as I believe they are), so too must they be used to interpret the latter.

The question is how best to derive the structure, logic, and purpose of an instrument like the Constitution. In this regard, Greve relies on the “precepts of public choice theory and constitutional political economy.” But can we derive the rule of Swift v. Tyson or Erie R.R. v. Tompkins directly from the abstractions of public choice theory? In my view, no. We need something more—whether that is evidence of the specific meaning of the Rules of Decision Act or the general understanding of the term “laws” within the community that adopted the statute. In this instance, abstractions don’t get us to concrete results. In addition, would it be fair to attribute public choice theory, in all of its particulars, to the authors of the Constitution? I don’t know. Those authors might have had a rough sense of similar concepts, but care must be taken not to presume that the Constitution incorporated all of the perspectives of twentieth-century economists.

The Upside-Down Constitution recognizes these points and spends time and energy canvassing the views of various participants in the constitutional debates of the eighteenth and nineteenth centuries. That is all to the good. It is partly through that kind of in-the-weeds work that we might better understand the provisions of the Constitution. But Greve is correct that we cannot divorce the in-the-weeds work from the broader logic of the whole instrument. To borrow the words of Edward Corwin, writing just under a century ago, that logic is part of The “Higher Law” Background of American Constitutional Law. Ten years after The Upside-Down Constitution’s publication, we are still puzzling over the place of unwritten rules of interpretation in our constitutional order.

Mike Rappaport adds

            Has it been ten years?  Wow.  Here are two blog posts I wrote about Michael's book a decade ago:   Here and here

Further update by Michael Ramsey:  The symposium now includes a response from Michael Greve: No Brooding Over the Upside-Down Constitution. (Thanks to Aditya Bamzai for the pointer.)