The Collective-Action Constitution

In the 1780s, one of the major weaknesses of the Articles of Confederation was that the federal government was unable to solve problems that spilled across state borders. Without the ability to prevent states from undermining the policies of their sister states or the federal government, the nation lived in existential dread of being defeated (either militarily or economically) by their neighboring states or by European powers. The United States Constitution was designed to remedy this and other inadequacies of the prior federal-state balance.

In his new book, The Collective-Action Constitution, professor Neil Siegel from Duke Law School argues that the primary structural purpose of the constitution is to empower the federal government to address “collective-action problems”: issues that that the states could not effectively address without collective effort. At the AJEI summit in November, Professor Siegel was joined by Judge Michelle Childs of the U.S. Court of Appeals for the D.C. Circuit to discuss his work.

The book’s cover features a colonial-era political cartoon that was published by Ben Franklin during the French and Indian War. It depicts a snake sectioned into several pieces, each labeled with the name of one of the British colonies. The cartoon was titled “JOIN, or DIE”—a message that continued to resonate with the founders during the revolutionary era as well. Without a unified government that could provide joint military protection and consistent national policies across all of the soon-to-be states, each would be under constant threat.

The book begins with a discussion of the Supreme Court’s foundational 1819 opinion in Marshall v. McCullough, 17 U.S. 316 (1819.) (Professor Siegel and Judge Childs discussed McCullough at the AJEI summit last year as well.) McCullough is arguably the most important Supreme Court decision in the nation’s history when it comes to structural constitutional matters. Justice John Marshall authored the opinion holding that the federal government had the implied power to create a national bank as a “necessary and proper” for carrying into execution its other powers, including the powers to “lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.” Id. at 407. It also held that Maryland could not undermine the aims of the federal bank by taxing it within the state’s borders, rejecting the argument that a state had any right to “retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress.” Id. at 436.

The opinion in McCullough recognized that a part of the whole can’t tax the whole because it has non-representative incentives. Professor Seigel argues that the opposite of collective action is a perfectly competitive market. In such a system, each state has an interest in and the power to improve its own fortunes at the expense of the others and the whole, which triggers a host of classic economic market failures such as the free-rider problem, a race to the bottom, and the tragedy of the commons. Instead, as McCullough recognized, when the federal government acts as a whole, both costs and benefits are externalized broadly in order to ensure functioning institutions and address the exigencies of the union.

Other, less-obvious sections of the constitutional text can also reflect a collective-action rationale. The Enclaves Clause specifies that the seat of federal government must be in an enclave of ten square miles, separated from the states. The reason for that isn’t just that the federal government has to be located somewhere—it was motivated by an incident in which the dignity and authority of the federal government was vulnerable to being overridden by the power of a single state. In 1783, soldiers protesting a lack of back pay marched to Independence Hall in Philadelphia where the Continental Congress was meeting, operating under the Articles of Confederation. The soldiers blocked the doors and prevented the Congress from leaving. The state of Pennsylvania refused to send its state militia to provide protection, forcing the Congress to sneak away to New Jersey. The Enclaves Clause was in part designed to avoid such a “degrading spectacle of a fugitive congress.” 

The collective-action approach is not inconsistent with the framework often used by the current conservative Supreme Court. For example, Professor Seigel observes a significant cutback of federal power based on what he describes as differing views of necessary collective action. Professor Seigel sees the modern Court evaluating whether certain federal activities are “economic-y” enough to be covered by the commerce clause, an analysis he describes as essentially a proxy for the justices’ intuitions about whether something is truly an interstate problem, or if it is something that states can handle on their own—in other words, if it requires collective action to address.

Professor Seigel argues that this structural approach to the constitution applies to a host of other problems that are better addressed by collective action than inconsistent, overlapping state polices. As examples, he cited international terrorism, nuclear proliferation, climate change, health care, gun violence, and race relations. If the states were permitted to “solve” their individual environmental problems by merely shifting polluting activities to other states, the nation as a whole would suffer by that interstate competition. There are a variety of issues that present classic coordination problems, such as the need for everyone to drive on the same side of the road, and for there to be reliable national networks for communication and transportation.

Other policy issues may be more controversial in terms of whether they fit into a collective-action framework. Professor Seigel gave the example of unlawful immigration, where states are not similarly situated to one another because border states will disproportionately bear both costs and benefits of a nationalized policy approach, so a collective-action approach is arguably less appropriate.

The panelists also discussed the role of the executive and judicial branches, because the Articles of Confederation lacked branches of government that could effectively enforce federal law—instead, that was left to the states. The Supremacy Clause, which requires state judges to prioritize federal over state law, reflects the collective-action constitution framework. Federal judicial review of state law (termed “vertical judicial review”) ensures that states stay in their lane, preventing them from externalizing costs on sister states in a way that would violate the structure of the constitution. The book details the textual and historical evidence that the framers envisioned that vertical judicial review of state law would be vigorous, perhaps more vigorous than judicial review of federal law. At the time of the founding, concerns about excesses of state governments were more pressing than concerns about the excesses of Congress.

Professor Seigel emphasized that under this conception of the constitution’s structure, he would not categorize issues like the regulation of police, parks, sanitation, or schools as “collective-action” issues that are better resolved by the federal government than competing states. But the “rubber meets the road” on issues that are generally local but have at least some interstate component, or a non-trivial risk of spillover effects on sister states; those borderline issues are difficult to categorize.

Professor Seigel does not consider himself to be an originalist, and the book discusses many important subsequent eras of constitutional history, such as the constitutional developments made during the Lochner Era, the New Deal, and the Great Society. He argues that we should take seriously how the federal government has understood its power over time, and that modern practice as developed through the 19th and 20th centuries should be important as well. Nevertheless, he describes the book as containing “a lot of originalism.” He emphasized that in an originalist approach, the understanding of the text of the constitution at the time of the founding is not the only important consideration, but the structure as well.

At bottom, the thesis of Professor Seigel’s framework is that the inception of the constitution and its fundamental structures reflect that we have a federal government for a reason: to address problems that sweep across state borders or would pit states against each other to the detriment of the nation as a whole.