This post is part of a symposium on The Anti-Oligarchy Constitution, a new book by Joseph Fishkin and William E. Forbath. Read the rest of the symposium here.
It is not true that the U.S. Constitution has little to say about our economic rights and liberties – let alone our material welfare. Instead, as Fishkin and Forbath argue convincingly, the Constitution has nourished a democracy-of-opportunity tradition that places our equal social rights front-and-center in constitutional practice and politics. In this, they show that the United States isn’t all that different from the Europeans, who have long recognized the constitutional character of social welfare and the administrative state necessary to maintain it.
About 40 years ago, Norberto Bobbio, an Italian political theorist, observed that “[a]ll states which have become more democratic have simultaneously become more bureaucratic.” To many observers, the twin development of bureaucracy and democracy is nothing but regrettable irony. It’s hard to see, at a glance, how self-government and individual autonomy might coexist comfortably with technocratic, top-down governance. When we accept rule-by-administrator, we pragmatically sacrifice liberty for the demands of social and economic complexity.
There is a story that goes something like this: the liberal rights cherished by democracy yield economic development. If left free to truck and barter, citizens will divide their labor into complex, interdependent patterns. And so, as a bitter twist of fate, democratic citizens must surrender some of their liberties to the state in order to manage the size and complexity of economic organization. The state develops bureaucracies because no general lawmaking enacted by elected officials can possibly cover all the bases. Not unless we go back in time, deindustrialize, turn back the clock.
Another story, borrowing from Weber, tells a tale of fatalistic modernization. Progression in the technologies of human social ordering led to the rationalization of both markets and states. Governments – both political and corporate – bureaucratized on parallel tracks. This is the price we pay for living on “islands of conscious power in this ocean of unconscious cooperation like lumps of butter coagulating in a pail of buttermilk.”
There is, however, another story. Administration and democracy developed together not because the history of politics and markets both run on trajectories that originate with liberal rights to property and contract. Nor are they the result of the ineluctable workings of technological determinism in a disenchanted world. They share DNA because they both express a vital human commitment to equal liberty.
Put simply, the development of democracy means citizens play an equal role in the laws that govern them. As they debate about these laws, they then start to articulate the rights they believe they should all share equally. Usurping the jurisdiction of judges and aristocrats, citizens craft promises to each other as they make out what it means to live together in equal dignity, freedom, and “happiness.” The development and elaboration of these rights, in turn, leads to government structures that can vindicate them. If citizens give themselves a right to education, they must create a public education system. If they give themselves insurance against unemployment, they must create an agency to implement it and a source of revenue to fund it.
Continental political thinking is clearheaded about this relation between democracy, bureaucracy and rights. The social contract theories of Rousseau and Kant first suggested that the rights human beings deserve are ones that can be made justifiable to all. Jurgen Habermas and his progeny take these instructions literally: the rights we have are the ones we, democratically, give to ourselves. Rights are not God-given or natural, but constructed by human beings who, in an ideal world, have an equal role to play in shaping them. In 1949, T.H. Marshall, an English sociologist, couched the array of democratically-determined welfare and security provisions as rights. They are claims that the state has a duty to fulfill. The state, in turn, requires powerful and capable agents to fulfill this duty. Administration is therefore, per Habermas, “not just a functionally necessary supplement to the system of rights but implications already contained in rights.” Thus, Bobbio argued in 1987 that critics of bureaucracy wish “if not [to] dismantle democratic power, then certainly to reduce it to within clearly circumscribed limits.”
Like myself, many Americans grew up thinking that Europe was just different this way. American constitutional law simply does not embrace the welfare state like our neighbors across the Atlantic. We are too big, too diverse, too racist, too misogynistic. We are too committed to federalism and too captivated by the separation of powers and the Commerce Clause. We are too quarantined from the Soviet Union and the communist demands that Europe was forced to coopt and palliate. We have too many would-be up-by-the-bootstraps-rugged-individualists, and too deep a commitment to “free” markets.
Fishkin and Forbath put the lie to this kind of thinking. It is just a symptom of what they dub the “Great Forgetting.” In painstaking and impressive detail, they show that Americans have indeed used their democratic voice to craft equal social and economic rights for themselves. Through the lens of antitrust, for example, the authors illustrate the contentious public debates about how best to prevent market inequality from ramifying into political inequality. Contests over the meaning of concepts like “actual liberty of contract” and “full freedom of association” were vigorous in the early 20th century, when courts violently enjoined labor strikes while busting up trusts. They are still vigorous. Citizens criticize corporate political spending, contest the capacious use of non-competes and adhesive arbitration clauses, and challenge or champion Lina Khan and an empowered FTC.
The authors also show, crucially, the institutional upshot of citizen demands for equal social, economic, and political liberty. In clear and engaging prose, Fishkin and Forbath illustrate the battles that led not just to the ICC, the SEC, the NLRB, the EEOC, and the EPA, but also to the income tax and central bank needed to support them. Each of these agencies followed social movements that demanded that the state make good on citizens’ claims to equal economic liberty: the right to dignity and respect at work; the right to living wages and reasonably priced necessities; the right to clean drinking water. Citizens learned how to wield currency and fiscal policy to vindicate their economic rights and opportunities.
In this, the book is at home with a nascent “continental turn” in U.S. legal thought. Authors like Jamal Greene, Blake Emerson, Jed Purdy, and Niko Bowie draw from continental conceptions of democratic theory as they set forth new, revitalizing takes on U.S. constitutional law. Unlike American scholarship that often relies on ideas of vested natural rights, originalism, and substantive due process, this exciting new body of work recognizes and celebrates citizens’ active role in shaping the equal rights they give to themselves. They demonstrate not just the co-originality of democracy and rights, but also the co-originality of social rights and the effective governance apparatus needed to achieve them. Though Fishkin and Forbath entitle their work The Anti-Oligarchy Constitution, I therefore like to think of it as the Equal Liberty Constitution.
Fishkin and Forbath’s scholarship goes beyond bringing continental theory to U.S. constitutional law. It also explains why America is not Europe. The answer is not that Americans have a fundamentally different understanding of rights and their origins. The fact that more Americans don’t embrace their welfare state as a public institution necessary to vindicate constitutionally enshrined economic and social rights is a pragmatic political strategy taken in the face of strong oligarchic headwinds.
According to the Supreme Court, the police power of the federal government, extended to the states through the Commerce Clause, is permissive only. It is power that may be exercised so long as it doesn’t bump up against higher law, so long as it doesn’t offend Constitutional principles as the Court itself understands them. As the authors carefully document, however, American citizens and lawmakers didn’t always think of their laws as merely permissive. Rather, they justified the provision of healthcare, education, and minimum incomes in terms of human rights and government duties. They demanded primary elections and the universal franchise as prerogatives, not mere preference. Americans demanded antitrust reform based upon their right to their daily bread.
The Court, once hostile to progressive reform, accepted these legislative changes during the New Deal. But it relegated them to a form of lower-tier lawmaking. These codified rights were not rights at all, but rather general legislation permitted under the Commerce Clause. For better or worse, Progressive reformers accepted this incomplete victory. As a result of their devil’s bargain, we are saddled with a Court that, as it did in Burwell v. Hobby Lobby, can wax romantic in favor of corporate (constitutional) religious liberty while ignoring the (statutorily protected) autonomy and healthcare rights of women in their workplace. It is time, argue Fishkin and Forbath, to reopen negotiations. It is time to demand that the Court accept democratic lawmaking—grounded in our anti-Oligarchic Constitution—as a legitimate way to vindicate our rights.
If the authors are right that the Court has been the central obstacle in the democratic construction of rights, it is all the more alarming that the Court is now credibly undertaking to dismantle administrative power tout court. The real twist of bitter irony is that it is doing so in the name of legislative primacy. In other words, it threatens the rights our democracy gave itself in the name of democracy. If it does nothing else, this wonderful book should pull us back through the looking glass. We should see the Court’s oligarchic move for what it plainly is.