Civil procedure is the infrastructure of democracy, allowing the public to interpret, elaborate, and entrench constitutional-regulatory commitments over time. Rather than sidelining courts entirely, a revival of the democracy-of-opportunity tradition should include a progressive vision of procedure.
“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.”
The historical high-tides for the domestic experience of democracy-of-opportunity have occurred during periods of territorial and global expansionism. A serious effort to recover this tradition entails engaging with its imperial dimensions.
In the introduction to a symposium on their new book, The Anti-Oligarchy Constitution, Joseph Fishkin and William E. Forbath make the case for reviving interest among progressives in constitutional political economy.