For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)
Richard M. Re
Neil Siegel has written a grand book on collective action problems and their pervasive role within constitutional law. The volume of course includes thorough discussion of topics like the Commerce Clause where collective action logic is familiar, but it also journeys quite a bit farther, reaching such diverse matters as interstate compacts, national security, federal court jurisdiction, and the presidential veto. Methodologically, the book deploys historical, game theoretical, doctrinal, and many other tools. And, perhaps most compellingly, the book also situates “the Collective-Action Constitution” alongside other constitutions, such as “the Reconstruction Constitution” (p.357) that protects individual rights. Recognizing multiple constitutions allows the book to pursue its thesis without losing sight of other foundational legal values within the legal system. It is hard to capture how wide-ranging, inquisitive, and nuanced this project turns out to be. If you want to better understand virtually any structural issue in constitutional law, this book can help.
The book’s “core claim is that the primary structural purpose of the US Constitution is to empower the federal government to solve [certain] collective-action problems” (p.5). One might think that a “primary structural purpose” of the Constitution is an historical fact relating to the document’s creation. This purpose might then propel a straightforward originalist argument regarding the content of constitutional law. But Siegel disclaims that simple view (p.31): “Because this book . . . offers a nonoriginalist account, it is important to the project that the original purpose is also the Constitution’s primary traditional and contemporary structural purpose.” What is a “contemporary structural purpose”? Siegel immediately continues: “The book would not endorse this original purpose as both descriptively accurate and normatively attractive if it had proven over time to be damaging to the country” (id). This passage appears to involve not only purpose in the sense of intention or aspiration (e.g., “the bird’s purpose is to scavenge for food”), but also purpose in the sense of teleology or functionality (e.g., “the purpose of the bird’s wing is to enable flight”). So to be a “contemporary structural purpose,” it seems that a principle or practice must be beneficial. Siegel elsewhere emphasizes that “American society will be better off on balance” if “the account offered here is adopted,” as compared with stark alternative approaches that would “severely restrict federal power” (p.27).
So, what kind of thing is the “collective-action constitution,” or CAC? Is it a legal principle? An historical claim? A prescriptive argument rooted in good policy? Siegel’s answer appears to be: All of the above. In perhaps his most sweeping remark on this topic, Siegel argues: “To a significant extent[,] the US Constitution is the Collective-Action Constitution—both because a collective-action account possesses significant descriptive power originally, traditionally, and today, and because it is normatively attractive” (p.6). This assertion appears to trade on Siegel’s “pluralist approach to interpretation” (p.26). There are many inputs into constitutional meaning, and virtually all of them, individually and together, support the CAC. Siegel’s various claims about history and good policy thus contribute to his ultimate theoretical goal: to derive conclusions about the right way for courts and other actors to understand constitutional law. This is a “big tent” mode of legal argument, one reminiscent of judicial opinions and legal briefs. Siegel accordingly takes famous court rulings as his guide, noting for instance that “[Chief Justice] Marshall’s method guides the structural theory offered in this book” (p.27).
I worry, however, that Siegel cannot persuasively defend his strong prioritization of collection-action problem-solving as the Constitution’s “primary” structural purpose. There are many competing interests at play in a normative or practical system as complex as the Constitution, making any categorical prioritization of one of those interests inevitably oversimple. True, Siegel points out that the Articles of Confederation generated collective action problems, and the Constitution was intended—had the “purpose” of—solving them. This original desire to increase the government’s ability to solve collection action problems seems to underwrite Siegel’s conclusion that that those problems are the Constitution’s “primary” structural concern. As he puts it (p.39), “it is instructive to ask why the Constitutional Convention took place.”
Yet the framers’ choice to go so far and no farther reveals a balance or tension of competing interests, and no one of those interests is categorically primary over the others. While the Articles of Confederation balanced these interests in a way that paid undue attention to collective action problems, an excessive determination to solve those same problems would itself be problematic, causing competing interests such as federalism and the separation of powers to be given short shrift. Because of these tradeoffs and hard choices, Siegel’s initially categorical prioritization of the collective-action constitution ultimately gives way to something like a balance of competing interests. For instance, the book notes that “this framework imposes a presumption, which can be rebutted” (p.38). In other words, assertedly secondary structural concerns, such as federalism and the separation of powers, can sometimes triumph over the need for collective action. Siegel thus fashions a grand “rule” with important “qualifications” (id.). But, at the level of abstraction we are discussing, a more overt balancing approach seems preferable. Recognizing roughly equal and competing interests would help to preserve the compromise that the framers struck and surface the difficulty of judging contests of incommensurable value.
Siegel might respond that any shortcomings in his historical argument are made up for by the pragmatic appeal of solving collective action problems. Yet collective action problems, while serious, aren’t the only problems that the United States faces. The framers, for instance, worried about too much collective action, such as when a populist tyrant seizes the reins of all government. (If your least favorite political actors ever take hold of the federal government, that ancient worry will become newly salient.) Once we remember that the world has more to worry about than just collective inaction, it becomes unclear how Siegel knows that structural constitutional law is most beneficial when it generally prioritizes collective action problems above all others. Whether to prioritize this or that interest seems instead to turn on principles less abstract than the “core claim” that Siegel aims to prove. We might want to ask about specific constitutional texts, institutional developments, urgent crises, and so forth. Rather than debate which general prioritization is marginally more compelling than the alternatives, we can more productively move down one or two levels of abstraction.
I would like to outline another way of thinking about what the CAC is. Instead of following Siegel in combining legal principle, historical fact, and prescriptive argument, we might hew closer to the ambitions of empirical political science or sociology. Collective action problems are real, but the law can and sometimes does ignore them—even foster them. When these problems fester, there are costs; when they are solved, there are benefits. The point of the CAC, on this view, is not to prescribe so much as to understand. It is to get a better handle on the available options that legal actors have before them, including the options’ various consequences and potential interactions. This way of thinking about a legal system can be framed as an inquiry into the law’s underlying structure. It maps the terrain on which political and legal actors pursue their projects, encounter opportunities or pitfalls, and come into conflict. This vision is humbler than Siegel’s, for it does not lead to pat prescriptions for courts but only practical choices. Yet it is also more ambitious, for it speaks to something deeply, almost inevitably, true about the legal system. Like the law of gravity and other natural laws, the CAC is just a fact about our world. We must reckon with it wherever we are, even if it does not purport to tell us where to go.
Understanding the CAC as part of the law’s underlying structure is consistent with the lion’s share of Siegel’s extensive and exquisite analysis. First, we should expect that the constitutional framers grappled with—indeed, almost had to grapple with—matters of underlying structure. And Siegel shows that that is certainly true with respect to the CAC. Second, modern political science scholarship can help us better understand the practical dynamics that give rise to collective-action problems, regardless of whether or how well the framers theorized them. So Siegel has good reason to devote an entire chapter of his book to game theoretical tools largely borrowed from political science and economics—what he calls the “New ‘Science of Politics’” (p.57). Finally, our legal system will either be sensitive to pertinent issues surrounding collective action, or else experience serious repercussions when it is not. Here, too, Siegel’s analysis is apt. Over hundreds of pages, he documents how and where the legal system tracks the CAC as well as other, alternative values, most especially constitutional rights. Siegel even acknowledges that efficient collective action is malign when the law is gripped by “terrible politics” (p.54), as occurred for example during the nation’s many decades of legally sanctioned enslavement. This acknowledgement, too, is consistent with the idea that the CAC is not a prescription to endorse but rather a set of realities to navigate—for good or ill.
Yet there are places where greater attention to matters of underlying structure would have been illuminating. Consider the final chapter of Siegel’s book, which addresses a concern that looms over the entire project. For much of the book, Seigel praises Congress’s ability to solve collective action problems, insisting for example that the federal courts defer to legislative efforts in this vein (p.288). Yet we all know that Congress is adversely affected by its own collective action problems, partisan gridlock, and other democratic maladies. Siegel’s closing chapter accordingly recognizes that Congress “is often not up to the task” of “solv[ing] collection-action problems” (p.448). Indeed, he contends that the problem of “congressional inaction” is “probably the single-greatest defect of the Constitution in modern America” (id.). Siegel therefore argues for several reforms, such as curtailing the filibuster, that would enhance Congress’s ability to enact majoritarian solutions. In the meantime, however, what does the CAC tell us about how our government does or should function? If we viewed the CAC as an account of the law’s underlying structure, we would regard the rise of executive governance and judicial power as the natural result of institutional choices that have rendered the legislature inactive. These developments would be cast as logical, understandable, and even beneficial under the circumstances. By contrast, Siegel identifies several “partial workarounds,” including “presidential governance” (pp.472–73) and “statutory updating” by courts (p.478). He then throws cold water on these “second-best solution[s]” by insisting that the president (p.473) and courts still “possess far less democratic legitimacy than Congress” (p.477). In these passages, the ideal of congressional action seems to prevent a full reckoning with congressional gridlock and its practical consequences for governance.
Even if we viewed the CAC as having some prescriptive content, in the sense that courts ought to foster solutions to collective action problems, Seigel’s criticisms of the status quo are not entirely convincing. Take his critique of the “major questions doctrine” in administrative law. After acknowledging that his theory “might be thought to support” that doctrine, Siegel argues (p.476) that courts should decide the scope of legislative delegations to agencies based on “ordinary statutory interpretation focused on the text and purpose of the statute at issue,” not a special “clear-statement requirement.” But that legalistic response does not reflect the practical logic of collection action or any actual institutional dynamics. The presidency has considerable democratic legitimacy but can also fall prey to democratic pathologies, such as unduly favoring the interests of the president’s own party and its membership (see p.439). So, when the executive branch operates without clear legislative support, there is reason to worry that overall social welfare will suffer. In this context, the sort of deference that Siegel would afford to an active legislature is no longer appropriate. The judiciary might then step in to defend the CAC by asking whether (or to what degree) a particular executive policy would garner support if put before Congress. If the judiciary doubted that the policy at issue would receive majority legislative support—perhaps because it is a “major question” of ongoing debate—then collective action reasoning would seem to disfavor the executive policy. This version of the major questions doctrine would then stop the president from seizing too much authority. More precisely, it would help prevent the president from pursuing policies that advance his own partisan interests at the expense of overall social welfare.
Siegel’s project even points, however unintentionally, toward a more systematic defense of the Supreme Court’s recent behavior. That is because CAC resonates with broader trends in the law, particularly the recent rise of both executive unilateralism and judicial skepticism of administrative action. The executive is largely characterized by unitary, elected leadership—an invigorating trait that recent case law (like Seila Law v. CFPB) has only intensified. And the Supreme Court, while an unelected committee, is still a small body with a clear majority rule for its own decisionmaking. These institutional features allow the presidency and judiciary to act with dispatch, relative to Congress. Moreover, the way that these institutions now interact plays to their relative ability to solve collective action problems in majoritarian ways. Again, presidential governance often channels nationwide preferences, thanks to the president’s unique status as a nationally elected officeholder; but the executive can also fall prey to partisan biases, yielding programs that benefit the president’s party at the expense of the general welfare. When such biases take hold, an independent or politically adverse judiciary can step in, effectively defending the overall democratic will. The more that an inert Congress recedes into the background, in other words, the more naturally the executive assumes the role of lawmaker—with the courts exercising a displaced veto power.
These trends do not flow from, and may well be inconsistent with, conventional legal reasoning. But to understand the new roles assumed by presidents and justices, we cannot limit ourselves to doctrinal reasoning or prescriptions for courts to obey. We must instead mine the deep practical relationships that underlie legal doctrine and related institutional behavior. If we take up that admittedly daunting task, aided by Siegel’s book, a surprising discovery awaits. Many features of current practice, from the major questions doctrine to the rise of executive unilateralism, are readily understandable—perhaps even justifiable—once we view the CAC as part of the law’s underlying structure.
Richard M. Re (RRe@law.virginia.edu) is the Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia School of Law.
