Joey Fishkin and Willy Forbath have written a powerful and much needed book on the long anti-oligarchic constitutional tradition in the United States. Their book calls on the left to abandon the rear-guard defense of the New Deal compromise it has engaged in over the past several decades, if not since the dawn of the New Deal itself, in favor of a more robust vision of “Democracy of Opportunity.” Present-day liberals and progressives, they argue, should build off that tradition to forge more tenacious, inclusive, and egalitarian visions of what the Constitution now demands. Very few constitutional messages could be more important, and hopefully galvanizing, in this second gilded age.
As I will argue in this post, however, I wish Fishkin and Forbath had gone further, both in their historical account of American constitutional political economy—in particular, about the forces that have sought, often successfully, to squelch anti-oligarchic constitutionalism—and in their analysis of what that history should mean today. This is perhaps an overly-demanding ask for a book that does so much and brings to the fore a set of ideas and arguments that are so needed today. I therefore offer my comments as a friendly amendment of sorts.
These thoughts come against the backdrop of the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, which ended a half century of constitutional protection of a women’s ability to decide whether and when to bear a child. As the dissent captures, Dobbs will upset the life course of people across the country, particularly poor women of color. It robs young people of a fundamental right that their parents and grandparents enjoyed. Dobbs will devastate the ability of women to participate in the labor market in the ways they have in the second half of the 21st century, to gain economic freedom, and to exercise political voice.
While there are many reasons to condemn the decision—most fundamentally, it dismisses the importance of treating women as autonomous human beings with full equality and liberty–I want to connect Dobbs to Fishkin and Forbath’s book. The majority’s biased approach to history demonstrates the importance of historical work like Fishkin and Forbath’s. But the majority’s opinion also exemplifies how powerful forces have long obstructed widespread liberty and equality, and demands we more carefully study how those with more capacious constitutional visions have successfully responded in American history.
First, the Dobbs opinion supposedly roots itself in history. It asserts that that the Constitution only protects liberties under Due Process if they are “deeply rooted in this Nation’s history and tradition.” The bias of that argument is obvious in the context of women’s rights: The majority requires us to look back to a time in history in which women were wholly disenfranchised and had no independent legal existence from their husbands or anything resembling equal status in order to establish the scope of women’s liberties today. Even then, it looks only to enacted laws and legal treatises, which women had no hand in creating. That radical approach, which the majority does not even attempt to justify, takes past oppression to justify contemporary disempowerment. By design, it would contract and obstruct the constitutional freedoms of women, Black and brown people, the LGBTQ+ community, and others who were not entitled full liberty or equality in the 1700 and 1800s.
Leaving the destructive implications of this test aside, the Dobbs opinion also reveals, as Reva Siegal describes, “how conservative judges encode movement goals and values under cover of highly selective historical claims.” The opinion’s veneer of “neutral” history obscures the majority’s contemporary social and political goals, particularly when the public has no easy way to check the veracity of Alito’s asserted history. (What ordinary person knows who Sir Edward Coke is or what reproductive healthcare practices were in the 13th century?) In this respect, projects like Fishkin and Forbath’s—along with others like Greg Ablavsky, Nicholas Bagley, Debbie Dinner, Sophia Lee, Serena Mayeri, Julian Davis Mortenson, William Novak, Reva Siegel, and Karen Tani, to name but a few—serve an important public purpose: they arm the media and others with historical knowledge that can be used to hold originalist decisionmakers to account.
Second, Dobbs exemplifies the way that today, as in so many earlier points in American history, powerful forces can limit the full liberty and equality of large swaths of people. It ends a half century of rights that were hard fought by many stretching back to the abolition and women’s suffrage movements. As I have argued elsewhere, the arc of the American rights tradition trends towards entrenching rights for the powerful rather than the disempowered, often through superficially “neutral” negative liberty rights; this trend is punctuated by popular demand for more capacious constitutional visions (often with interest convergence mixed in). Fishkin and Forbath beautifully capture many of the positive swings of anti-oligarchic constitutional claims. This is, of course, their goal: to trace and illuminate the long and persistent vision of anti-oligarchic constitutional thought.
What I wish had been included, however, is a deeper look at the moments in which oligarchic, settler colonial, white power, patriarchal, authoritarian, or other such forces prevailed. Why did these forces succeed? How did they organize our economy, our politics, our norms, and our ideas? To more fully understand the arc of the law, and recognize our present possibilities, we must consider not just Reconstruction and its anti-oligarchic goals, for example, but also the means of retrenchment and the rise and violent dominance of the KKK in the early 1900s (not to mention chattel slavery before that).
Many things have contributed to the dangerous and precarious moment we now occupy, including the rise of economic science and law and economics, liberal valorization of the courts post-Brown, and McCarthyism, as Fishkin and Forbath astutely observe. But what they describe as progressives’ “great forgetting” of the constitutional political economy tradition after the New Deal is but one piece of how we have gotten to where we are. The currently pervasive neoliberal constitutional vision was built by a long-term action plan that drew on strategies, practices, and ideas developed by mid-century anti-oligarchic movements, including the labor and civil rights movements. The goal accomplished in Dobbs was likewise built over many years of strategic and sustained constitutional politics. These low points, the strategies by which they were built, and how they were fought, too, are vital to understand through the lens of law and political economy, and to inform our future constitutional politics.
This context makes even more clear the importance of Fishkin and Forbath’s key contribution: their tracing of the dynamic intellectual history of anti-oligarchic constitutional visions and when they prevailed. Drawing on that account, Fishkin and Forbath call on present day progressives to view “the primary role of constitutional political economy arguments [a]s not to invalidate legislation but instead to motivate and defend it.” This is a crucially important take-away: we must expand the horizon of our constitutional arguments beyond courts and negative rights, and view the Constitution as relevant to more than whether or not legislation should be struck down. Fishkin and Forbath rightly also point out the importance of having structural reform of both our political system and the Court credibly on the table.
If we are to find our way out of this dangerous this moment, we need to learn from the strategies and tools that oligarchs and anti-oligarchs alike have used to change our constitutional history. What we need is constitutionalism that engages deeply with the notion that capacious liberty and equality—indeed, constitutional democracy itself—are contingent and must be fought for. Fishkin and Forbath vividly begin that project. I hope more will contribute to this goal—both historians and movements, and in the courts, Congress, and in the streets.