the second part collective action constitution A collective action theory of constitutional federal structures is developed and the limitations of the theory are identified.
Chapter 3 explores the potential role of states in resolving collective action problems through the development of interstate compacts and other agreements. However, this chapter also explains why Article I, Section 10, Clause 3 (if not so far as a principle) presumptuously prohibits interstate compacting and requires congressional consent to overcome this presumption. The proposed compact could undermine federal supremacy or harm sister states, and states could disagree on whether the compact addresses or leads to collective action problems. The Constitution does not mandate an answer to these questions, which are also historically contingent and normative rather than merely scientific or technical. Instead, the Constitution leaves primary responsibility for deciding these questions to Congress, as Chief Justice Marshall stated in McCulloch v. Maryland (1819), the interests of all nations and peoples were represented.
In addition to the normative concerns it may raise, interstate compacts are also difficult to form. Many parties within the Compacting States must ratify, and Compacts require unanimous consent among the Compacting States. Furthermore, the barriers to collective action tend to increase dramatically as the number of countries that must act together increases. Generally speaking, if proposed compacts must cover many states to achieve their purpose, issues of free riding, resistance, and disagreement may cripple them. This is a lesson from early American history and subsequent experience, and it helps explain why, according to this book’s arithmetic, compacts typically involved very few states, and why only about 200 exist today.
Chapter 4 argues that because the founders of nationalism did not expect states to engage in collective action on a regular basis, the Constitution empowered Congress to address many multistate collective action problems. The text and structure of the Constitution reflect the belief that a federal government operating through (super)majority rules will be more likely to find solutions that avoid states trying to cooperate or coordinate through unanimous consent rules. In his history of the Confederation, George William Van Cleef wrote that the Constitution arose out of “the willingness of the states and territories to confer upon the national government fundamental new powers and to permit those powers to be exercised by a majority vote.” Therefore, Article 1, Section 8, Section 18 primarily empowers Congress to resolve various collective action problems for the states.
The most important of Section 8’s powers are Congress’s taxing power, and the associated spending and borrowing powers. After detailing the major structural problems with the Articles of Confederation and the ways in which the nationalist Framers attempted to address them when drafting Resolution VI and Article 8 of the Virginia Plan, this chapter analyzes congressional taxation, spending and the power to borrow. Its theory of congressional taxation power was widely adopted NFIB v. Sebelius (2012), whose explanation of psychological externalities justifies the federal government’s broad authority to spend on “general welfare.”
Chapter 5 draws on collective action reasoning to explain the origins of the Interstate Commerce Clause, criticizes the Supreme Court’s formal distinctions in interpreting the Clause, and identifies a functional alternative: the distinction between interstate collective action and individual action. This chapter textually and structurally interprets the Interstate Commerce Clause as enabling legislation in which Congress identified multistate collective action problems arising from interstate spillovers that produced economic (rather than psychological) effects. In this approach, Gibbons v Ogden The decisions made from 1937 to the 1990s were correct. The class action approach also explains why contemporary courts are able to correctly decide most interstate commerce cases, albeit for reasons not stated in its doctrine. The chapter next questions the absolute nature of the Court’s anti-expropriation doctrine and defends its dormant commercial doctrine.
The chapter then draws on the logic of collective action to illuminate the founding history and scope of foreign and Indian commerce clauses. Countries must act collectively, not individually, to effectively manage commercial relationships with other countries. Furthermore, “commerce” in these Terms should be construed as best understood structurally in the context of interstate commerce: to include interactions and transactions outside the marketplace in addition to trade and other economic activities. Finally, the chapter discusses the principle that valid federal law supersedes conflicting state law. Preemption flows directly from the Constitution’s collective action account.
Chapter 6 explores the remainder of Section 8. It then examined postal and intellectual property rights powers. Like the Military Defense Clause, both powers enable Congress to internalize positive interstate externalities. The next chapter explains why Congress could require uniform national regulation of naturalization and bankruptcy, and then considers standards, currency, and counterfeiting, which also hints at concerns about the collective costs of different state regulations. The chapter concludes with the authority to establish lower federal courts and regulate federal enclaves. These powers not only benefit federal administration but also address multi-state collective action problems.
Chapter 7 examines Articles 2, 3 and 6. Federal laws designed to address multistate collective action problems will have little impact if they are not enforced against states and private groups that violate or attempt to undermine those laws. Likewise, constitutional or congressional prohibitions on state legislation that undermine federal solutions or create collective action problems for the states will be largely meaningless if these prohibitions are not enforced to ensure federal supremacy. Articles II and III create independent executive and judicial branches and authorize them to enforce federal laws.
Article II also authorizes the president to engage in active foreign affairs and national security operations—functions that states and members of Congress cannot carry out without overcoming daunting collective action problems. Article 3 assigns responsibilities to the federal judiciary in matters of foreign relations, national security, and domestic peace. Federal courts resolve or prevent states’ collective action problems by arbitrating international or interstate disputes, including when attempts to reach interstate compacts fail. Article VI’s Supremacy Clause and the oath requirement for state officials advance the compatibility of Article III by helping to ensure the effectiveness of solutions to collective action problems set forth in the Constitution, federal statutes, and treaties and by strengthening prohibitions on state action. The same paramount goals undermine such solutions or create collective action problems.
Chapter 8 analyzes the underappreciated role of the Constitution in defining relations among the states themselves. The first two sections of Article IV either limit the actions states can take or authorize Congress to take action. Full faith and credit, effects, privileges and immunities, and extradition clauses promote political and economic union by preventing collective action problems among states. Painfully, so did the Fugitive Slave Clause. The collective action rationale for federal power to enforce the Clause underscores the importance of the constitutional right to limit what Congress can do and what states cannot do to resolve or prevent multistate collective action problems.
Article 4, Section 3 shifts from the movement of persons across national borders to the control of territory. The Territorial Clause gave Congress the exclusive power to dispose and manage federal lands and property, and the Admission Clause gave Congress the exclusive power to admit new states. These provisions both empower Congress to solve states’ collective action problems and prevent states from causing them. Putting them together may have reflected the original expectation that federal territories would become states. However, this does not always happen, which raises troubling questions about the democratic legitimacy of contemporary American empire.
Chapter 9 explores one of the major roles of the Constitution in modern times: protecting individual rights from the state. Collective action reasoning helps explain some rights, including those guaranteed by dormant business principles and perfect good faith clauses. This chapter identifies other rights that both protect individual liberty or equality and prevent the state from raising collective action problems. They are rights protected by privileges, immunities and warranties, and the right to enter and leave other states.
However, the enforcement of most rights does not primarily reflect a logic of collective action. The Reconstruction Amendments’ primary structural achievement was to empower federal courts and Congress to regulate states’ internal policy choices on certain topics, regardless of the collective action problems states faced. Most rights exist primarily to protect people from unconstitutional actions by the state rather than to prevent the state from causing collective action problems. Although collective action constitution While it does not primarily explain most such rights, it helps explain those that protect the democratic process. It also provides a secondary justification for equal rights, which must be protected in order for minorities’ rights to travel across the states to be meaningful.
