Balkinization: Republicanism and the Constitution of Opportunity

Republicanism and the Constitution of Opportunity

For the Symposium on the Constitution and Economic Inequality

A recurring question that Joey Fishkin and Wily Forbath are likely to face in their work on the Constitution of Opportunity is what the Constitution has to do with their argument. They argue that public officials have a duty to promote economic opportunity and a broad-based middle class. They also argue that public officials have a duty to resist the exacerbation of economic inequality and the economic and political oligarchy that comes with it. But why is this a constitutional obligation?

I believe that the theory of living originalism can help in articulating the constitutional basis of their project.

I. The Constitution of Opportunity as a Constitutional Construction.

Arguments for constitutional political economy are classic examples of constitutional construction. Judicial constructions are the most familiar forms of construction, but equally important forms of constitutional construction are state-building constructions. Indeed, as I explain in Living Originalism, most judicial constructions respond to state building constructions by the political branches. State building constructions are therefore the primary case, not the exceptional case of constitutional construction. Until well after the Civil War, the judiciary played a far smaller role in constitutional construction than it does today. And even today, judicial constructions often respond to important state-building constructions, as we can see in the debates over Obamacare.

In state building constructions, the political branches argue about how to flesh out the Constitution’s obligations and exercise the Constitution’s powers of government through the building of institutions that perform constitutional functions.

The Constitution of Opportunity is a constitutional construction directed primarily at the political branches and secondarily at the judiciary. It exists at a high level of generality, and states an underlying principle about constitutional structure as a whole.

What is the ground of this construction? As a living originalist, I argue that constitutional constructions must be consistent with the basic framework. The basic framework includes the Constitution’s text, and its choice of legal norms-- that is, rules, standards, principles and silences. But the constitutional framework also contains a small number of underlying principles that are not directly stated but that we infer from constitutional text and structure.

What are those underlying principles? There are at least five: (1) separation of powers; (2) checks and balances; (3) federalism; (4) rule of law, and (5) representative democracy and republicanism. No construction of the Constitution can be faithful if it rejects these principles as part of the basic framework. Of course, because these are principles and not rules, they may take many manifestations; they do not determine the scope of their own extension, and they must be balanced against other considerations. But it would be unfaithful to the Constitution to argue that it does not contain a principle of federalism, for example, or a principle of representative democracy.

In fact, the principle of representative democracy is more than just an unstated underlying principle. It is mentioned in the Constitution in Article IV, section 4, as a requirement that “The United States shall guarantee to every state in this union a republican form of government.”

The Guarantee Clause seems only to assert that states must be republican. But it follows from a sound constitutional structure that the federal government must also be republican; a federal monarchy or oligarchy, for example, would be inconsistent with the guarantee of republicanism in the several states. Therefore, if the federal government must guarantee the states a republican form of government, it must also guarantee them that it will continue to be a republican form of government.

The Guarantee Clause should not be considered in isolation. The influence of the principle of republicanism reaches into many different elements of the Constitution, and the mere fact that this particular Clause has been neglected, does not mean that republican principles and ideals have not been at stake in many other different clauses and parts of the Constitution.

Note that the guarantee of republican government is not simply a suggestion. It is imposed as a positive duty on the United States. It falls on all three branches. Each branch must fulfil that duty in the ways most appropriate to its powers and institutional capacities. That means, among other things, that courts would fulfil this duty by deciding cases and controversies, while the political branches would fulfil this duty by passing laws and taking executive actions.

The Constitution does not specify how the guarantee is to be performed, except in the most extreme instance, as a duty to respond to insurrection or rebellion. This specification makes perfect sense. Through their study of history the framers were well aware that republics could be destabilized and could be toppled by anti-republican forces. Thus, if an armed rebellion toppled the government of Texas and installed a dictatorship or an oligarchy, there would be a constitutional duty to restore republican government in the state. Otherwise, the Constitution does not specify when the duty arises or how it is to be fulfilled. This is left to the United States to decide.

To summarize: the Constitution imposes a duty-- a guarantee of republican government. This duty is consistent with the underlying principle of representative democracy implicit in constitutional text and structure. The Constitution is silent on how to fulfil this duty, leaving the question to all three branches of government consistent with their institutional roles.

An aside: In Luther v. Borden, Chief Justice Taney argued that the question of guarantee was inherently political and therefore was not justiciable. But the facts of Luther involve an insurrection that occurred many years before the case was decided. The case cannot be fairly read as a general withdrawal of the judiciary from enforcement of Article IV, section 4. This would be flatly inconsistent with the obligation of “The United States”—which includes all three branches of government—to guarantee republican government. This point has only a minor effect on Fishkin and Forbath’s project, however, because they are primarily concerned with the duties of the political branches, and with what I call state-building constructions. But it does suggest that the judiciary also has a role in securing republican government, for example, in legitimating certain state building constructions, and in protecting certain rights that are important to republican government.

II. What is Republican Government?

I have argued that the Constitution of Opportunity is a political construction of the requirement of republican government, which is both a positive duty mentioned in the text of the Constitution and an underlying principle of the Constitution. It asserts that the political branches of the federal government have a constitutional duty to guarantee republican government. And because the guarantee would mean nothing if the United States were not republican, it also imposes a duty on the United States to maintain itself as a republican form of government.

But what do we mean by republican government? Today people often understand republicanism in contrast to pure or direct democracy. (For example, Randy Barnett’s new book, Our Republican Constitution, identifies republicanism with representative government that secures natural rights. More interestingly and controversially, he identifies the republicanism of the Founders with what is generally viewed as its complement or competitor—Lockean-inspired natural rights liberalism. But that is a subject for another essay.)

The founding generation had a more capacious view of republics and republicanism. We do not have to accept that view in all of its particulars, any more than we have to accept the adopters’ views about the First Amendment or the Equal Protection Clause. But, consistent with the premises of a living originalism, we can make use of historical understandings and historical articulations of principles in order to decide on the constructions that are most faithful to the Constitution in our time. This activity of historical re-imagination attempts to keep faith with the Constitution as a trans-generational political project. Far from abandoning constitutional fidelity, it seeks the best way to continue the American constitutional tradition.

The generation of the Founders understood republicanism through an interlocking set of ideas and principles.

First, the framers opposed republicanism not merely to direct popular rule, but also to monarchy, aristocracy, and oligarchy. A republic is therefore an anti-monarchical, anti-aristocratic, and anti-oligarchical form of government.

Second, republicanism implies the notion of a public interest. A republic is a res publica, a public thing that citizens have a duty to further and defend through their efforts in politics. The notion of a public thing-- a republic-- presumes that there is a public interest that is not identical with the private interest of any individual or group. Groups may disagree about what the public interest is but they should direct politics toward the realization of the public interest and the promotion of the res publica.

Because of this public interest, many republican rights include duties which are connected to the defense of the republic and republican values. The right to keep and bear arms is an example. A purely liberal conception of the right to keep and bear arms is a right of individual self-defense. But a republican conception of the right to keep and bear arms is a public duty of citizens to take up arms and, if necessary, to give their lives, to defend the republic against tyranny and corruption.

Third, republicanism includes a principle of civic equality. Because republicanism opposes monarchy, aristocracy, and oligarchy, all citizens are equal citizens and the state may not elevate some special class of citizenry above the rest. This idea is finally enshrined in the text of our Constitution during Reconstruction, but it is implicit in the concept of republican government. The prohibition against class and caste legislation, recognized in antebellum state constitutional law as well as in the Fourteenth Amendment, follows from the republican commitment to the equality of citizens.

Fourth, republicanism also includes a principle against domination. The republican conception of liberty includes formal freedom from restraint but also involves a requirement of non-domination. People who are dominated by others are not free but slaves. The republican opposition of slavery to freedom is political as well as economic. Chattel slavery is only a special case of slavery. (For more on this see Sandy Levinson’s and my essay on The Dangerous Thirteenth Amendment).

Fifth, republicanism includes a commitment to self-rule. In order for the people as a whole to be free, the government must respect their freedom. But a mere grant of civil freedom at the sufferance of the state is not enough, because it can taken away. Therefore, in order for people to be their own masters, the government must both respect the rights of the public and it must be responsive to the public’s views over time. Hence the principle of non-domination not only guarantees personal liberty; it also requires self-rule, and a representative form of government.

Sixth, republicanism includes an anti-corruption principle. Corruption is a central enemy of a republic. To maintain a viable republic, one must avoid the corruption of the political process. Corruption occurs when the rulers stray from being responsive to and dependent on public opinion, promoting their private interest or the private interest of some elite faction or oligarchy over the public interest and the public good.

Seventh, as a result, republicanism includes a principle against political self-entrenchment. Today’s majority must not be able to entrench itself so as to prevent the development of a future majority. If constitutional structure allows self-entrenchment, the system will be corrupted, and the people will cease to become their own rulers, violating basic principles of republican self-government.

To sum up: republicanism includes seven principles: (1) anti-monarchy, anti-aristocracy, anti-oligarchy; (2) duties to further the public good and act for the public interest; (3) equality of citizenship with no special classes, privileges or disabilities that might create a new aristocracy; (4) non-domination; (5) individual and political self-rule; (6) anti-corruption (including political and systemic corruption); and (7) anti-self-entrenchment.

III. Political Design and Political Economy

Classical republicanism was also associated with the concept of civic virtue. Civic virtue is important for both citizens and officials. Nevertheless, urging and educating people to be virtuous is unlikely to be sufficient to maintain a republic. People are always tempted by self-interest and clannishness. Without good institutional design, people and government officials repeatedly stray from republican values. They attempt to cling to power, engage in various forms of political self-entrenchment, gain special benefits and privileges for themselves (and their allies), and dominate others.

Without a set of background (legal and constitutional) arrangements, the pursuit of the public interest is overwhelmed by the struggle of individual and factional interests, individual and structural corruption enters the system, and the government loses its republican character.

Hence the key to keeping a republic running is good institutions, practices, and laws. In the context of a constitution, this principle means that a republic requires both a good constitutional structure and a good set of basic arrangements for politics, which will prevent domination, political self-entrenchment, and corruption.

Political economy is a necessary part of this structure. Political economy is not separate from constitutional design. The separation of the economy from other structures of power, including politics, is a comparatively recent idea in human history. What we call “the market” is an invention of states, developed in early modernity.

Preservation of republican governance among persons and within political practices must be maintained through design of institutions. Early conceptions of republicanism assumed that free citizens could not be economically dependent on others, because such economic dependence would lead to loss of political freedom, domination, and corruption (by both dominators and dominated). This concern about dependence pushed in two different directions. In a conservative direction, it supported anti-democratic features of republicanism, including limiting political life to heads of households who ruled over women, slaves, and apprentices, as well as limitations on suffrage to owners of substantial property, who were assumed to be self-dependent. But the argument could be flipped and push in precisely the opposite direction, as it did in the Jacksonian era, toward creating an economy where fewer people were dependent on others, and therefore requiring expansion of political freedom and the suffrage. The anti-dependence concern, in other words, is consistent with many different forms of social structure, depending on our other assumptions.

IV. The Debate over Political Economy in the Early American Republic

The American republic begins with a continuous debate over what kind of political economy is required to maintain a viable republic. Fishkin and Forbath argue that the republican vision called for a broad middle class of Americans who could be economically independent and self-sustaining. This makes sense given the concern that economic dependence makes it impossible for the citizens to be their own political masters.

The republican ideals of the American Revolution and the early Federal Republic co-exist with Lockean liberalism, and the Founders’ republican vision is eclipsed by an increasingly liberal conception in the 19th century, eventually turning into the liberal pluralism of the 20th century.

Nevertheless, key republican ideals and principles remain in the American political tradition, resurfacing in ever new guises and adapting themselves to changing economic and social conditions. The seven principles identified above never go away; they simply reappear in new forms, leading to new debates over how to preserve republican ideals in changing conditions.

In the early Federal period, republicans identified oligarchy and aristocracy with the customs and trappings of the British Empire. Monarchical culture and all that came with it, it was believed, led to corruption and undermined republican government.

In Great Britain economic power was often connected to aristocratic lineage and privilege. Large landholding estates were a key tie between aristocracy, political influence, and economic power. For this reason, the Northwest Ordinance of 1787 was designed to reduce if not eliminate the sources of such power. It banned both slavery and presumptive primogeniture in the new territories: “[T]he estates, both of resident and nonresident proprietors in the said territory, dying intestate, shall descent to, and be distributed among their children, and the descendants of a deceased child, in equal parts.” This is an early regulation of the most powerful form of property-- and therefore political influence--in the New World.

The ban on slavery prevented the growth of plantations with large numbers of slaves that would drive down the price of free labor and prevent the economic sustainability of independent small farmers. But the limitation on primogeniture was equally important. It also served republican ideals by discouraging the concentration of land ownership (and thus economic and political power) in hereditary successions. Finally, the Northwest Ordinance also encouraged education as a method of uplift.

The Jacksonian Era brought increasing recognition that oligarchy and aristocracy arise not merely from official titles of nobility (although there is plenty of concern about this too) but as arising from the inequality of wealth and opportunity. This shift in focus is a natural development. As the country shed the cultural influence and ideals of British Empire, and everyone gave lip service to republican ideals of non-aristocracy and equal citizenship, it became clear that the greatest threat to republicanism came from the developing political economy of the new country. It was capitalists and financiers, not necessarily high-born, who threatened to create a new aristocracy of wealth.

Whigs and Jacksonians gave different diagnoses and answers to these questions. Whigs argued for the expansion of opportunities to become owners of land and capital, arguing that being property-less should be only a temporary condition, as long as the government created appropriate infrastructure and incentives to economic growth. Jacksonians opposed special privileges and federal investments in infrastructure as corrupting.

As we move through the twentieth century to the twenty-first, these ideas of anti-oligarchy and anti-aristocracy remain, although they take new forms. So too does the republican ideal that the government must be responsive to the people, that it must act in the public interest rather than in the private interests of elites, and that a previous majority should be forbidden from entrenching itself to maintain political power.

The key question for constitutional theory is how to translate these ideas into new economic and political contexts that the founding generation never dreamed of. In this we are assisted but not constrained by the views of later Americans, including the great social movements of Jacksonianism, anti-slavery, abolition, the labor movement, the civil rights movement, the feminist movement (in both its first and second waves), the consumer movement, and the gay rights movement.

Each generation has to decide for itself how to make sense of these republican ideals. They may disagree among themselves about their application, and about who is being most faithful to them in the present. As Fishkin and Forbath point out, the Jacksonians and Whigs had different visions of how to honor the republican commitment to a broad-based middle class that could be economically self-dependent and therefore able to promote the public interest. Jacksonians argued that the power of finance threatened a new aristocracy of wealth and political oligarchy.

Ironically, however, the Jacksonian embrace of slavery brought its own form of political corruption. Republicans argued that the Slave Power-- often defended by Jacksonian politicians--was the most dangerous form of oligarchy and aristocracy and that it was inherently corrupting to the values of republicanism. It is therefore no accident that the new party called itself Republican. The reason was not because they preferred representative government to direct rule-- it was because they wanted to preserve republican ideals of self-rule, anti-oligarchy, and anti-corruption.

V. Ideological Drift and the Central Problem of Maintaining Republican Government

The intimate connections between Jacksonian democracy—which stood for republican values in the 1830’s—and the Jacksonian defense of the slave power is a key example of the problem of maintaining a healthy republican form of government under continuously changing circumstances. No assertion of republicanism in American history is pure; each is compromised by its situation. Even more important, the opponents of oligarchy and aristocracy in one generation are easily tempted and co-opted into becoming the defenders of new forms of anti-republican arrangements in later years. This is an example of what I have called “ideological drift.”

This means that republicanism, if it is to have a coherent and enduring set of political commitments, cannot be identified with a permanently fixed set of arrangements. Time and political contestation continuously produce ideological drift, turning the republican stalwarts of an earlier era into the defenders of self-entrenchment and corruption in the next.

As we have seen, republicanism is deeply connected to political economy. But political economy is always changing. Therefore a commitment to republicanism requires a perpetual re-analysis of the political economy of a republic. Even if basic laws do not change quickly, economic arrangements are always changing, and people are always struggling with each other to turn existing legal arrangements to their advantage. If we trace the development of American inequality in the last fifty years, we will discover that it arises not only from changes in economic conditions and technology, but also from determined efforts by groups to change the tax code, labor law, and constitutional doctrine to entrench their economic and political power.

The question in every generation is the same: Who are the new aristocrats? Who are the new oligarchs? What is the source of their power and what form does oligarchy take? How is structural corruption entering the political system? People disagree about these questions today even as Jacksonians and Whigs disagreed. Liberals think they know where the sources arise. But the conservative base of the Republican Party identifies oligarchy and aristocracy with well-educated secular elites, especially on the left. They fear a cultural and educational oligarchy dictating the terms of American life to them. Because the conservative base of the Republican Party views the question this way, they have found themselves in a coalition with business conservatives and national security hawks. As we have seen in the past year, this coalition has become increasingly unstable, as members of the base recognize that their own coalition partners are part of the problem, not the solution.

Because of ideological drift, older forms of anti-oligarchy rhetoric can be captured by new aristocracies and oligarchies to defend their interests. The Jacksonian ideas of opposition to class legislation and the anti-slavery ideals of Free Labor were captured by Gilded Age conservatives in the late nineteenth century and turned to the defense of bare-knuckled capitalism. Ideological drift is always in operation because each generation adapts the most successful ideas of debates in the past opportunistically and for its own concerns and interests.

This helps explains the ideological drift of the first amendment. Originally it was used to defend labor unions, anti-war activists, and advocates of contraception and women’s equality. But once it become central to the pantheon of civil liberties, it was also possible to adapt it to new ends. It eventually has become the most powerful anti-regulatory tool in the information age, especially in a world in which information and information goods are central to markets.

Fishkin and Forbath tell the story of change and co-optation of Jacksonian and free labor ideals during the late nineteenth century. Republican progressives like Theodore Roosevelt understood that a powerful national state was necessary to protect republican ideals in the age of huge corporations and trusts. The New Dealers, led by Franklin Roosevelt, argued against economic royalism, and for the promotion of a more just conception of economic liberty (as non-domination), collective bargaining rights, investments in infrastructure, and the beginnings of the modern conception of social insurance. In this way, the New Dealers borrowed ideas from both the Jacksonians and the Whigs of the antebellum period. This constant borrowing and reconfiguration of constitutional themes is necessary in order to deal with changing circumstances. Because people’s actions within a political system are constantly changing, and because the effects of existing laws change over time, the problem of oligarchy and aristocracy is constantly mutating. So too is the problem of maintaining republican government.

Posted 1:50 PM by JB [link]