Constitutional Political Economy for a Democracy, Not an Oligarchy

PUBLISHED

Willy Forbath (@WForbath) is the Lloyd M. Bentsen Chair in Law and Associate Dean for Research at the University of Texas, Austin School of Law.

Joseph Fishkin (@joeyfishkin) is Professor of Law at UCLA School of Law.

PUBLISHED

Willy Forbath (@WForbath) is the Lloyd M. Bentsen Chair in Law and Associate Dean for Research at the University of Texas, Austin School of Law.

Joseph Fishkin (@joeyfishkin) is Professor of Law at UCLA School of Law.

This post introduces a symposium on “The Anti-Oligarchy Constitution,” a new book by Joseph Fishkin and William E. ForbathRead the rest of the symposium here.

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We are glad to be having this conversation about our new book, The Anti-Oligarchy Constitution: Reconstructing the Foundations of American Democracy, under the auspices of the Law and Political Economy Project and its terrific blog. We see this as a perfect way to launch the book. One of the book’s central goals is to bring constitutional argument into the LPE conversation—and also, to bring law and political economy into the constitutional conversation. In other words, we aim to reinvigorate interest among progressives in constitutional political economy.[i]

These aims would have seemed unlikely ten years ago, when we began work on the project that became this book. There was little talk then about law and political economy, let alone its constitutional dimensions. But unexpectedly, and wonderfully, now there is a large and growing community of scholars doing cutting-edge work in these areas. As this community came into its own over the past few years, enriching our work as we tried to contribute our part—including at a terrific Texas Law Review symposium in January 2016—we have come to celebrate that our book is not the lonely voice it might have been if it had appeared a few years earlier. Instead, we are part of a movement.

Quite a few scholars and activists in the broad movement to rethink law and political economy do not hold the same view of the Constitution that we offer in this book. They are skeptical of the usefulness of constitutional argument, largely because they are skeptical of how such arguments play out in courts. We share this view of the courts. In particular, we are deeply critical of the special role the Supreme Court has long played—a century ago, and again today—in using constitutional law to impose a vision of political economy that is friendly to oligarchy and hostile to the redistribution of social and economic power.

But constitutional arguments are not the exclusive province of courts. Our project in the book is to show that the Constitution has also played a very different role in our nation’s long-running debate about constitutional political economy. In The Anti-Oligarchy Constitution we trace the contours of a tradition in American constitutional argument that stretches from before the nation’s founding through the mid-twentieth century, in which the Constitution is not the province of courts alone, but instead is a source of positive legislative obligation. It impelled legislators (and executives) to act, against the backdrop of the political and economic circumstances of their own time, to preserve the democratic rather than plutocratic political economy that they understood the Constitution to demand. In this tradition, constitutional claims are not legal conversation stoppers, setting boundaries and limits on politics. Instead, they are part of the substance of democratic constitutional politics.

We call this tradition the democracy-of-opportunity tradition, borrowing from FDR, who argued that it was a constitutional necessity to overthrow the “economic royalists” and build a “democracy of opportunity” for all Americans in the economic and the political spheres. Arguments in the democracy-of-opportunity tradition hold that we cannot keep our constitutional democracy—our “Republican Form of Government”—unless we (1) restrain oligarchy; (2) build a broad, wide-open middle class, which is the foundation of republican government; and (3) build a political economy that is inclusive, across racial lines and other group-based lines of exclusion.

“Middle class” in this tradition is not defined by reference to who is above or below. Instead, it denotes a set of social baselines that reformers throughout most of U.S. history described variously as an “American standard” of material comfort and security, along with the wherewithal and opportunities to make a life with value in one’s own eyes. There must be ample room and opportunity for all. If the middle class shrinks too much, republican government becomes impossible.

Racial inclusion is the one part of this tradition that today sounds like constitutional law. But it looks different through the lens of the democracy-of-opportunity tradition. Inclusion means more than antidiscrimination and voting rights: it encompasses social insurance, job creation, redressing the historic racial wealth gap. In other words, it takes in political economy. This perspective will be familiar to many readers of this blog. What might be less familiar is that it was also the perspective of the Radical Republicans, who were the most forceful advocates for the Reconstruction Amendments that transformed our Constitution. They thought enfranchisement and civil rights were not enough: the whole political economy of the South needed to change to make a plantation oligarchy into a democratic republic. This meant redistributing land to the formerly enslaved people; it meant building public schools. As we show in the book, this was the moment when the idea of legislative constitutional duties to secure a broad distribution of social goods, productive resources, and political-economic clout really came into its own—and every great movement for economic justice from the Gilded Age through the New Deal renovated and built on it.

The main work of the book is telling the story of the democracy-of-opportunity tradition as it evolved, as different threads of it were taken up for different causes, across American history. So much about this tradition feels unfamiliar to present-day readers—and indeed, when we started, it felt unfamiliar to us too—that we thought it best to show, rather than just tell, how this tradition sounded across time. This makes for a longish book, especially because the tradition itself is far from monolithic. There were various iterations of it that rejected the principle of racial inclusion entirely. We are confident in nonetheless calling it a tradition because generations of advocates for new iterations of the democracy-of-opportunity project would look back self-consciously toward, and borrow from, earlier rounds of it. Our story elevates the Reconstruction-era version of the tradition, for two reasons. First, the “Second Founding” has a special place in constructing our modern constitutional order. Second, in our view, it is only when the three strands of anti-oligarchy, a broad and open middle class, and racial inclusion work together that they have any real chance of success.

Conservatives never forgot their constitutional political economy. But in the thick of the Cold War and anti-communist purges, mid-20th century liberals set aside political economy in favor of the technocratic discipline of economics, which sidelined the old questions about the distribution of wealth and power. At the same time, inspired by Brown v. Board and enraged by the reactionary, racist campaigns of massive resistance against it, liberals became the Court’s ardent defenders and adopted a new court-centered view of constitutionalism that would have shocked their progressive forebears. Fighting for racial minorities, women, consumers, and the environment, they embraced individual-rights claims aimed at courts and legalistic, procedural conceptions of fairness and equality that earlier generations of progressive reformers had shunned.

So, just as the new liberal thinking about economics took political economy outside of politics, assigning it to the technocratic expertise of economists, the new liberal constitutionalism aimed to take the Constitution out of the political arena and assign it to the special expertise of judges. In the process, late-20th-century liberals forgot, or abandoned, the democracy-of-opportunity tradition.

We recognize that reviving this tradition today is a seriously uphill struggle. Americans, especially those from the left half of the American political spectrum, are currently locked into an exceptionally court-centric conception of constitutional law. Conservatives, understanding this, pivoted in a fairly straightforward way from direct political attacks on the Court (“impeach Earl Warren!”) to a sharper focus on transforming the Court’s personnel through judicial appointments. This worked. They now control the Supreme Court 6–3. By contrast, liberals have spent the past half-century defending the Court and its independence from politics (spoiler: it is not).

What is needed now is an institutional pivot: modern progressives need to articulate in a clear way what is substantively wrong with the Court’s anti-redistributive, “you’re-on-your-own” political economy. Progressives need their own account of the kind of constitutional political economy the Constitution promises to promote and redeem. They need to use this account to justify and set up confrontations with the Court. 

That is how progressives—from mainstream figures like the two Roosevelts to radicals and socialists like Eugene Debs—made their case for court-curbing and other structural reforms. They assailed the Court—many also assailed the Senate, the Electoral College, and Article V—and called for a more democratic constitutional framework to empower the people to create a more democratic political economy. But they rested their case for constitutional renovation on the principles of an anti-oligarchy Constitution.

We certainly understand the appeal of the other route, in which progressives imagine a post-constitutional order. But we don’t think it is a plausible blueprint for radical reform. It is possible (we hope and believe) to decenter the courts, reducing their power in favor of the more democratic branches. But this happens through political conflict between those branches and the courts. In that conflict, progressives need powerful and convincing constitutional arguments, even if those arguments are not directed at the courts. What our book shows is that there are ample, rich constitutional materials to draw from, for those who wish to make these arguments, and remake our politics around an idea that political and economic power needs to be distributed among the many, not concentrated in the hands of a few.


[i] A little inside baseball for readers of this blog: Originally our subtitle for this book was going to include the phrase “constitutional political economy.” Our editor prevailed on us to use a subtitle more potential readers would understand. We’re happy with where the subtitle ended up—and probably our editor was right. But we do think that constitutional political economy is an apt phrase for describing the subject matter of the book and the kind of discussion we hope it may spark.

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