Balkinization: Reclaiming Constitutional Political Economy

Reclaiming Constitutional Political Economy

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Joseph Fishkin and William Forbath

In post-2008 America, it has become obvious to almost everybody that we are becoming a startlingly unequal society, in terms of both wealth and economic opportunity. With post-crash wages stubbornly stagnant, everyone can see that the vaunted the American middle class is today on precarious ground. With opportunities for a middle-class livelihood shrinking, a large part of the former middle class is edging downward toward a more precarious place, closer to that of the poor, while a much smaller group is edging upward toward great wealth. The poor are becoming more geographically concentrated, separate from the rich and even from the middle. The very wealthy are ascending to heights of wealth, power and influence that recall the last Gilded Age a century ago. As the presidential campaign unfolds, we have candidates running whose financing (through Super PACs) depends to a startling degree on a number of wealthy backers you can count on one hand — backers who expect to control their part of the presidential campaign universe the same way they would control their own companies or foundations. We also have, for the first time in living memory, a serious presidential candidate who speaks openly about “oligarchy” and the connections between economic and political power. “The real struggle,” Bernie Sanders argues, “is whether we can prevent this country from moving to an oligarchic form of society in which virtually all economic and political power rests with a handful of billionaires.”

We have been here before. This is certainly not the first time concern about economic inequality and unequal opportunity has spilled over into national politics. Nor is it the first time Americans have struggled with how to steer our collective ship away from the rocks of “an oligarchic form of society.” But one piece of the story seems different this time around. For prior generations of reformers throughout the nineteenth and early twentieth century, economic circumstances like our own posed not just an economic, social or a political problem, but a constitutional one. From the beginning of the Republic through roughly the New Deal, Americans vividly understood that the guarantees of the Constitution are intertwined with the structure of our economic life. This understanding was the foundation of a powerful constitutional discourse that today, with important but limited exceptions, lies dormant: a discourse of constitutional political economy.

This week, the Texas Law Review is hosting a symposium about the Constitution and Economic Inequality that aims to recover this discourse and rediscover some of these connections. Jack has generously offered to publish a series of posts from participants in the symposium on this blog. The symposium brings together constitutional law scholars and scholars whose subjects we no longer understand to be constitutional in nature at all: subjects such as tax policy, corporations, antitrust, labor, and trade policy. But earlier rounds of debate about these and many other important economic policy questions did have constitutional dimensions. Understanding these dimensions matters if we want to understand what constitutional political economy could look like in the present or future. The participants in this symposium are a varied group. Some offer arguments that are more focused on the present and others on the past. All find interesting ways to imagine the connections, which have been latent for several generations, between the Constitution and our economic life, especially inequality and unequal opportunity. The two of us have advised the Texas Law Review students organizing the symposium. We are not exactly disinterested observers: we are hard at work at the moment on a joint book project on many of these themes. (One panel at the symposium will discuss our book manuscript, which is still an early, and partial, draft.) As far as we know, this is the first time any journal has organized a symposium on this topic. We suspect it may not be the last.

Here is a brief sketch of the kind of constitutional argument that our book project, at least, puts front and center. Other participants in this symposium have different ways of drawing out the connections between the Constitution and economic inequality. We expect that the trajectories of both our politics and our economic situation, and the connections between the two, are likely to lead to a flowering of different types of arguments that begin to reconnect economics or political economy with constitutional law.

Our own approach begins with history, and it involves stepping outside the conventions of contemporary constitutional discourse—what a constitutional argument sounds like today, and to whom it is addressed (usually, to courts). Our book recovers a different tradition of constitutional argument that we call the “democracy of opportunity” tradition. Throughout the nineteenth and early twentieth centuries, reformers of widely different stripes confronted crises in the nation’s opportunity structure not unlike the one today. They responded with constitutional claims. The content of these claims varied. But at the core of these reformers’ arguments was an idea that we cannot keep our constitutional democracy—our “republican form of government”—without certain essentials: constitutional restraints against oligarchy; and a political economy that sustains a broad middle class, wide open and broad enough to accommodate everyone. These ideas are deeply intertwined. Too much concentration of economic and political power at the top tends to erode the economic and political standing of those in the middle. And a broad, open, and secure middle class is itself a political and economic bulwark against oligarchy. A third principle—a principle of inclusion—has a more fraught and complex relationship to this tradition. Sometimes, such as during Reconstruction, this inclusionary principle has been at its core—no less central to the tradition than preventing oligarchy or preserving a broad middle class. But many leading figures in this broad tradition imagined a democracy of opportunity for white men only, and rested their hope of economic independence and equal citizenship for white men on the subordination and exploitation of the labor of women and racial minorities.

For contemporary students of constitutional law, the democracy of opportunity tradition presents many puzzles. Where in the Constitution are these arguments to be found? Advocates of the democracy of opportunity tradition made claims on many pieces of constitutional text. But at their heart, these were structural constitutional arguments. Unlike the structural mode of interpretation familiar to us today, which builds claims about topics like the separation of powers and federalism on institutional relationships within the political sphere, arguments about constitutional political economy begin from the premises that economics and politics are inextricable, and that our constitutional order rests on and presupposes a political-economic order.

Here is another puzzle: How are these arguments even constitutional arguments at all, when so often they are aimed not at courts, but rather, at the political branches? These arguments often spoke in the register of the affirmative constitutional duty of legislators to act, rather than the register more familiar today, of constitutional constraints on what the state can do. The distinction is important. The conventions of our contemporary constitutional discourse hold—to oversimplify slightly—that the only real constitutional claims are ones enforceable, at least in principle, by courts. These conventions suggest that constitutional claims are political conversation-stoppers that set boundaries on the scope of democratic policymaking. Part of the project of our book is to help readers see beyond these current conventions and to recover a different way of thinking about American constitutionalism in general and constitutional political economy in particular. For the proponents of the democracy of opportunity tradition, through most of American history, arguments about constitutional political economy were not outside constraints on democratic politics. They were the substance of a democratic constitutional politics. Far from being conversation-stoppers, they were at the heart of one side of a series of great national debates over how to understand the relationship between our Constitution and our economic and political life. The participants in these debates did not view arguments about the affirmative constitutional duties of legislatures and executives as “constitutional” in some merely rhetorical sense. Instead, the political branches were crucial fora in which most important constitutional conflicts and deliberations unfolded.

Justice Holmes famously wrote that the Constitution “does not enact Mr. Herbert Spencer's Social Statics . . . . a constitution is not intended to embody a particular economic theory.” We think this is right, but with a twist. The Constitution does not enact a particular economic theory, but it does enact a social vision; our great constitutional debates have always been about the nature of that vision. In the past, those debates—and the intellectual work informing them—always addressed and often centered on the kind of political economy we need to sustain that vision. The contemporary heirs of the democracy of opportunity tradition, if they hope to continue this work, need to rediscover constitutional political economy.

Today, there is only one group that consistently makes arguments about constitutional political economy: the libertarian right. Libertarians have a substantive vision of a political and economic order they believe the Constitution requires. They have long translated that vision into rights claims that can be enforced in court. In this way, the contemporary libertarians who are the lineal descendants of early twentieth century freedom-of-contract and property-rights Lochnerism continue to make an array of constitutional claims that are recognizable as constitutional political economy. (Indeed, these arguments share some important roots with the democracy of opportunity tradition, although they developed in a different and more reactionary direction.) These arguments hang on many different doctrinal hooks. They inform interpretations of the Commerce Clause, the separation of powers, the First Amendment, even the Equal Protection Clause. Whatever the doctrinal setting, the underlying force of these claims comes from a vision of the relationship between the Constitution and our economic life that would be very familiar to veterans of many nineteenth and early twentieth century constitutional struggles over banking, currency, credit, labor, trusts, and federal power over economic matters.

What is missing are the libertarians’ traditional opponents: the advocates of the democracy of opportunity tradition. Their descendants live on in our political life, but we have forgotten that their arguments, too, are constitutional arguments. This has enormous implications. In campaign finance law, it means that the Court sees the constitutionally protected liberty to speak and spend, but cannot see the constitutional stakes on the other side—the way some of the challenged campaign finance laws aim to prevent the emergence of a political-economic oligarchy. In a case like NFIB v. Sebelius, it means the Court writes with the broccoli argument looming in the background, but without seeing the way the legislation aims to protect a broad middle class by giving millions of Americans a fair opportunity to obtain what has become one of the central hallmarks of middle-class life (decent health insurance).

But ultimately, we think constitutional political economy is not primarily about courts. A central aim of the book is to help recover the idea that constitutionalism is not exclusively about what courts do. In the end, we think those who developed this important tradition in American constitutional thought got quite a lot of the big things right. Our constitutional order does, in fact, rest and depend on a political-economic order. That political-economic order does not maintain itself. It requires action—and forbearance from action—by all parts of government. Although the content of what is required changes radically over time as our economy changes, we think the basic principles of the democracy of opportunity tradition remain affirmative constitutional obligations of government: to prevent an oligarchy from amassing too much power; to preserve a broad and open middle class as a counterweight against oligarchy and a bulwark of democratic life; and to include everyone, not just those privileged by race or sex or class, in a democracy of opportunity that is broad enough to unite us all.

By calling these constitutional obligations, we mean to elevate them in comparison to the other manifold responsibilities of government. Not every issue—not even every highly important issue—has the same relationship to the political-economic order that constitutes us as a democratic society. But we do not mean to suggest that constitutional political economy ought to be elevated above the plane of democratic debate. Quite the opposite. It has been the subject of intense democratic debate since the very inception of our constitutional tradition—debate that we once recognized, correctly, as a form of constitutional politics. Today, only the libertarian right is self-consciously engaged in the constitutional politics of these questions. We think that should change. And we think that as our economic and political present increasingly calls to mind the Gilded Age past, it likely will.

Posted 8:57 AM by Guest Blogger [link]