Constitutional Showdown: The Playful Politics of David Lewis Schaefer

In Federalist #9, Alexander Hamilton countered “the proponents of tyranny,” who argued against the feasibility of merging a free government with social order, referencing advancements in “the study of politics,” reflected in the US Constitution. Following Hamilton’s example, in The Collective-Action Constitution, Duke law professor Neil S. Siegel highlights the progress of recent findings in political science, particularly through the implementation of game theory to analyze and enhance our foundational document.

Siegel advocates for a Federal government that possesses a significantly broader range of authority than what constitutional scholarship has typically assigned. Contrasting with a “long-established view” of the Constitution, which imposes considerable constraints on Federal power to safeguard the authority of state governments and individual rights, Siegel envisions a “collective action Constitution.” Since the Constitution was established to remedy the weaknesses of the Articles of Confederation, he contends it ought to be interpreted broadly to empower the government to tackle collective issues such as COVID, national health insurance, income disparity, low wages, racism, climate change, and even abortion. Only in this manner can the nation confront a spectrum of challenges, managing coordination problems and preventing certain states from benefiting at the expense of others’ beneficial efforts. As a precedent, he references Chief Justice John Marshall in McCulloch v. Maryland, which affirmed the constitutionality of a national bank under the document’s “necessary and proper” clause.

However, Siegel’s viewpoint extends well beyond Marshall’s prudent reading of the Constitution. In affirming the bank’s constitutionality, Marshall referenced the powers explicitly provided to Congress regarding the sword and purse (taxation, borrowing, regulating commerce, and commanding the armed forces), recognizing Congress’s discretion that the bank was advantageous or convenient—thus “necessary and proper”—for fulfilling those objectives. In contrast, while occasionally acknowledging that Congress’s powers are limited by the Constitution and the rights of states and individuals, Siegel’s “game-theoretical” outlook is essentially open-ended. Unless the constitutional text explicitly restricts it, Siegel advocates for a “cost-benefit collective-action” approach to public-policy dilemmas. In “instances where some states view themselves as better off” from a specific collective action, but others perceive themselves as worse off, Congress is permitted to act whenever it “rationally concludes that its involvement would benefit the one group of states more than it would harm the others.” As an illustration, Siegel mentions a hypothetical disagreement among a majority of states that “consider the use of child labor as sparking a race to the bottom” (one of his favored phrases), while a minority regards it as “a race to the top” involving “healthy economic rivalry.”

This example is theoretical and distorts the manner in which national policy is typically formulated. (The same could be said about collective action concepts in general.) The history of child labor legislation in the United States is intricate. The Court invalidated a Congressional statute prohibiting child labor in Hammer v. Dagenhart (1918) but subsequently overturned that ruling in 1941 in US v. Darby Lumber Co. After that point, a national consensus appears to have been reached on the subject. However, Congress, in enacting the Fair Labor Standards Act of 1938 (which reinstated the ban), surely did not perform the type of numerical assessment of interests or perspectives that Siegel depicts. It is more likely that legislators on both sides were driven by the desire to address the demands of their constituents, a commitment to promoting what they perceived as the overall common good, and perhaps also a conviction that their actions had a plausible basis in the Constitution.

Siegel’s analysis of abortion further illustrates the peculiarity of his proposed form of cost-benefit assessment. Following the Supreme Court’s 2022 Dobbs decision, which reversed the ruling in Roe v. Wade that had ostensibly discovered a constitutional right to abortion, Siegel entertains the option of utilizing the Commerce Clause to either “protect—or restrict—abortion access nationally.” He is “inclined to assert that national legislation” limiting abortion “would counteract a detrimental race to [the] bottom”—implying, without clear justification, that advocating for abortion rights is fundamentally preferable to curbing them. Nonetheless, he later recognizes the absence of any “value-neutral mechanism for Congress or a court to determine whether the benefits to states that support (or prohibit) abortion outweigh the costs that such states impose on others with an opposing viewpoint.” Regardless, he concludes, the Interstate Commerce Clause empowers Congressional majorities “to resolve this moral issue … and to assign values to the internalized benefits and externalized costs of varying state regulatory frameworks based partially on this moral judgment.” This consequently requires courts to “defer to whatever rational cost-benefit assessment Congress conducts.”

This is exceedingly strained reasoning. What could it imply to “assign values” to the costs and advantages of various abortion “regimes”? And given the lack of reference to abortion in the Constitution, on what basis can Siegel empower Congress to claim authority over the topic? Isn’t allowing it to fall to the states what self-governance signifies?

A key aspect of Siegel’s expansion of Congressional power to issues seemingly as distant from national authority as abortion is his extensive interpretation of the term “commerce,” following some eighteenth-century usage, to encompass not only economic exchanges but also “exchanges of people and ideas.” No serious “textualist” interpreter of the Constitution would contemplate reading the commerce clause in this manner. If Congress is permitted to regulate (not merely facilitate) any transmissions of ideas or persons it perceives as involving “collective-action problems,” what subjects could it not regulate? (Siegel indeed contends that “a democratically legitimate national political process justifies entrusting Congress, not the states, with the power to determine whether there are collective-action problems needing resolution when states are at odds.” So much for federalism!)

While Siegel dismisses the restriction of “commerce” to economic concerns, even within that narrower domain, he grants it exceptionally broad reach in the name of addressing purported collective-action issues. For instance, he defends federal spending programs partly on the grounds of “interstate psychological externalities.” This could pertain to a scenario where a state government chooses to “favor tax cuts over the provision of poverty relief,” which would “harm another state [which is more concerned with the impoverished].” Siegel endorses some of the most intrusive New Deal legislation,including the Federal Live Poultry Code for New York City (unanimously declared unconstitutional by the Court in Schechter Poultry v. US [1935]) alongside a provision of the Agricultural Adjustment Act of 1938, upheld by the Court in Wickard v. Filburn (1942), which penalized farmers for exceeding their designated quotas of wheat intended for feeding their own livestock. (In US v. Lopez [1995], the Court characterized Wickard as “perhaps the most extensive” extension of Congressional power over intrastate commerce, stating that it “significantly broadened the authority of Congress beyond what is specified in the Constitution under that Clause.”) 

Regrettably, Siegel does not merely advocate for exceptionally broad restrictions on Congress’s powers as per the current Constitution. In Part III, “Perfecting the Collective-Action Constitution,” he expresses concern about the “collective costs” associated with the document’s “strict supermajority prerequisites”—the stipulations that a two-thirds majority in each chamber is required to override a Presidential veto; that two-thirds of the Senate must agree on a treaty or convict a President in an impeachment process; that a majority of the electoral votes, allocated among the states, rather than a simple national popular vote, is necessary for electing a President; and that Article V creates significant obstacles to ratifying an amendment. Siegel argues that in establishing a two-thirds majority for veto overrides, “the Framers did not foresee that a president might seize or dismiss the powers of Congress.” They also failed to “predict expansive executive authority and political parties,” which create “exceptionally daunting challenges when it comes to both overriding vetoes and removing impeached presidents.” 

Siegel presents an intriguing array of justifications for simplifying the amendment process. To begin, he bemoans that our constitution is more challenging to amend “than almost any other democratic constitution,” pointing out that Germany, for example, “amends its Basic Law nearly once a year,” France “more than once every two years,” and “most states” do so “every couple of years.” Despite this, he concedes that “constitutional alteration can cause more harm than good,” asserting that the claim of desirability “is ultimately unproven,” much like (he asserts) “its opposite.” In this context, however, Siegel would have benefitted from referring to James Madison’s comment in Federalist #49. The Framers crafted the Constitution to be difficult to amend because frequent alterations would “strip the constitution of that reverence, which time bestows on all things, and without which perhaps the wisest and freest government would not maintain the necessary stability.” As America reflects on 235 years of steady constitutional governance (interrupted only once by a civil war stemming from a significant flaw in the original document), it is shocking that Siegel should reference France (which has experienced five republics during our singular one), and Germany (no further comments needed) as better models than ours! 

The primary issue that Siegel believes a more amendable constitution could resolve is “congressional gridlock,” specifically, Congress’s inability to achieve “key constitutional objectives” due to factors such as the separation of powers, Presidential vetoes, and our non-simply-majoritarian method of electing Presidents and senators. It is notable that Siegel should lament the lack of legislative action by recent Congresses, given such comprehensive and costly laws as the Affordable Care Act, the 2017 Tax Cuts and Jobs Act, the American Rescue Plan, and the Inflation Reduction Act. 

Siegel’s assertion that Congress doesn’t legislate sufficiently seems to reflect a misunderstanding between the quantity of laws it passes and the breadth and expense of such omnibus legislation. Indeed, in his concluding remarks, Siegel accepts that Congress still “enacts major legislation today,” citing approximately 25 laws enacted on a diverse range of topics since 2000. However, regarding whether Congresses should be assessed by how often they pass legislation, Siegel might have sought insight from Madison’s discussion in Federalist #62 about how senators’ relatively long terms should help mitigate the “instability in public councils” that could undermine the national government’s respect from its own citizens and foreign nations, and that could provide unfair advantages to speculators (insiders) who might predict the next policy adjustments (say, in taxation or subsidies) ahead of their diligent fellow citizens. 

Siegel’s work may unintentionally boost Americans’ pride in their Constitution. We should indeed feel thankful that it was crafted not by enthusiasts of game theory, but by individuals whose experiences and education had equipped them with a realistic comprehension of human nature, and whose joint discussions enabled them to create a political system that would secure the blessings of liberty for future generations.