Balkinization: The Great Forgetting

The Great Forgetting

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Jed Purdy

Fishkin & Forbath’s (F&F’s) manuscript is a project of recovery. It portrays the present as a time marked by a “great forgetting” of a tradition of constitutional political economy. F&F name what has been forgotten the “democracy of opportunity” tradition. Recovering it would mean again treating the following three principles as linked elements at the core of our constitution: (1) an anti-oligarchy principle that works to prevent wealth from producing grossly unequal political power; (2) a commitment to a broad middle class with secure, respected work; and (3) a principle of inclusion that opens participation in both citizenship and the economic middle class to all, particularly members of historically excluded groups.

From the standpoint of this tradition, many recent developments in constitutional law look seriously out of whack. Allowing the First Amendment to lay waste to campaign-spending limits flies in the face of the anti-oligarchy principle. Blocking Medicaid expansion (and nearly invalidating the Obamacare individual mandate) on federalism grounds hobbles Washington’s role in protecting basic security for a broad middle class. Imposing constitutional opt-outs on public-sector union dues schemes tears another hole in the tattered institutional architecture of a middle class economy (and of politically empowered worker-citizens). Interpreting Equal Protection doctrine in a narrowly anti-classification key (a.k.a. colorblindness) implies constitutional indifference to the structures of wealth and opportunity that stand in the way of robust inclusion, and even impedes race-conscious efforts to achieve inclusion (i.e., affirmative action).

But, F&F observe, progressives – especially when working with constitutional doctrine, that is, when self-consciously being constitutional lawyers – tend not to think of these as constitutional issues, except in a negative sense: we say, echoing the New Deal justices, that these are questions where the courts do not belong, where legislatures are constitutionally authorized to act. Armed with the democracy-of-opportunity tradition, we could say more: that legislatures are implementing a constitutional duty to build a democratic political economy. It would follow that courts must not stop them, but also that every public official, perhaps every citizen, has some responsibility to advance democracy of opportunity.

This long-standing line of argument has a small but proud recent presence, in which Willie Forbath’s earlier work is central. It has recently taken new urgency from two developments. One is the Supreme Court’s eagerness to advance a selective anti-regulatory agenda on constitutional terms. (All of the issues cited two paragraphs back are examples.) Another is greatly increased awareness of accelerating economic inequality, which intensifies concerns about oligarchy, the state of the middle class, and the prospects of inclusion. Today it seems that there is much to do to protect, let alone advance, a democratic political economy, and, at the same time, newly devised constitutional barriers are impeding that work.

An especially timely aspect of this argument is the interpretation of the “great forgetting” in relation to the twentieth-century history of inequality. If one asked why the Constitution proves more useful to opponents of a democratic political economy than to its supporters, the obvious answer would be that it protects individual rights and state prerogatives, thus imposing limits on government (especially federal) power, but does not require any legislative initiative or protect robust “positive rights” (other than some that are necessary to core procedural protections, notably the right to a defense attorney). But, say F&F, this rather restrictive vision is not the only way to understand the Constitution; indeed, many earlier Americans would sharply disagree. They were our imperfect predecessors in the democracy of opportunity tradition. How did even progressive today come to think so differently? This is the question of the great forgetting.

The story begins familiarly enough: the Supreme Court was the last holdout among the three branches in resisting FDR’s New Deal. Lawyers, judges, and law professors reacted to the Court’s involvement in politics with a theory of institutional competence and constitutional authority that largely wrote courts out of political economy, and out they stayed, for well over a generation. Courts instead set out on a program of rights-based inclusion, felling laws that infringed personal freedom and treated different people inequitably, from Brown to Obergefell (and from Buckley to Fisher). And the remit of this program, in the minds of progressives and pretty much everyone else, was just what constitutional law was: a scheme of rights-protecting and power-granting provisions that mostly authorized public action while securing individuals against overt exclusion or deprivation of core negative liberties. Conservatives emphasized different liberties and interpreted the scheme of powers differently, but their constitution was alternative version of the liberal one, built to a different shape from the same parts. Moreover, “the constitution” came to be identified more and more with the constitutional law whose development liberal and conservative lawyers were contesting, that is, with the work of courts. The idea that the constitution contains a vision of social membership that legislatures must vindicate faded from view.

Accordingly, the major progressive initiatives in political economy that followed the New Deal, notably LBJ’s Great Society, did not come sporting constitutional colors. They were humanitarian, utilitarian, managerial improvements, consistent with an increasingly technocratic view of political economy. In these respects, they were marked by a time of high and widely shared growth. We now recognize that time as anomalous, but it then seemed that (A) there was plenty of social surplus to deal around; and (B) because a properly governed economy seemed to distribute its goods in a tolerably egalitarian way, inclusion-plus-social-provision seemed the right formula to expand the broad middle class that already existed.

It was, accordingly, a time suited to produce a war on poverty, not a war on inequality: Inequality – the problem at the heart of the anti-oligarchy and broad-middle-class principles of the democracy-of-opportunity tradition – seemed resolved. The distributive battles and questions about legitimacy that pressed earlier generations of progressives toward constitutional principles had relaxed. It was easy to keep regarding the Constitution, 1950s-style, as a document of personal liberty and inclusion, the province of courts (which stayed out of the political-economy field). And so the tradition of democratic opportunity slept. Now the hour is late, democratic political economy is under libertarian constitutional siege, and F&F sound the tocsin (or, if you are a Tolkien fan, light the beacons).

I am an admirer and fellow traveler of this project. Inspired partly by Forbath’s work, I argued for a democratic political economy in both property and constitutional law in 2005-10, and more recently I’ve written about the Court’s anti-regulatory jurisprudence (“neoliberal Lochnerism”) and, with David Grewal, about the origins of twentieth-century legal liberalism in the “golden age of democratic capitalism” when the problems of inequality and democratic management of the economy briefly but pregnantly appeared solved. So it is in that spirit that I approach F&F’s project.

The big, obvious question is what difference it makes to talk about the democracy-of-opportunity tradition as constitutional. F&F point in two directions here: toward constitutional adjudication, on the one hand, and the constitutional rhetoric and imagination of legislation and movements, on the other.

On the first front – about the courts – I am halfway convinced. Let’s start, however, with a deflationary proposal. Looking back at the last two decades or so of touchstone cases, it seems to me that the “liberal” votes in favor of federal power and government permission to structure elections and economic relations in an equitable fashion would likely add up in the same way even if the justices had switched from the powers-and-permission language of post-New Deal jurisprudence to the legislative-duties language associated with democracy of opportunity. F&F don’t seem to imagine legislative duties as being judicially enforceable, so the posture of cases seems likely to remain the same in future – hung on the question, “Can the government do this?” – and both New-Deal and democracy-of-opportunity vocabularies seem likely to take justices to the same answers, at least as long as liberal justices are basically pro-Washington and pro-equality, which doesn’t seem a stretch.

But what I have just said is the narrowest way to understand the issue. I doubt it covers all the ground. New cases will arise, and the nature and stakes of those cases may depend in part on the language the justices have been using to that point. History really is surprising; it does not just seem that way in hindsight. F&F’s language might prepare us for welcome surprises, or avert unwelcome ones.

F&F are especially interesting when they turn to the interpretation of certain framework statutes, notably in labor law, arbitration, election law, and antitrust. They treat these statutes, entirely convincingly, as central to the achievement of democracy of opportunity under modern economic conditions. This significantly affects the strength that, say, First Amendment challenges to these statutes should carry: the statutes themselves have constitutional weight.

Setting aside constitutional challenges for the moment, it is equally important in the realm of statutory interpretation, not to allow such foundational statutes to be misused to concentrate and reinforce private economic power. Of course, this has happened in both antitrust and arbitration. This is really valuable: to understand that the scheme of law at the core of our idea of a democratic economy is mainly statutory, but that it is constitutionally important to interpret and preserve these statutes in a certain way. I’d note that the attitude being recovered here is really a mid-twentieth century one, as F&F show in recalling Justice Frankfurter’s view of labor law. Justices who accepted the post-New Deal role for constitutional courts nonetheless entirely understood the constitutional stakes of these statutes. The great forgetting took a while, and it may be hard to date convincingly.

Now let’s turn away from the courts. As F&F say, much of the work of their constitutional program needs doing by movements and legislators. Here it’s interesting to reflect that there are ways of describing the long tradition of democratic political economy that put much less emphasis on the constitution than F&F do. There are the many Progressive criticisms of the constitution’s democracy-impeding design – not least Woodrow Wilson’s and Herbert Croly’s. I am not well qualified to parse the intellectual history of the New Deal, but despite Roosevelt’s sometime use of constitutional language, the Croly-Wilson view – that the spirit of democratic politics was nailed to the cross of constitutional structure, in Roberto Unger’s bloody image – mattered a lot in the ferment that produced that great wave of reform. Aziz Rana’s in-progress manuscript on non-constitutionalist movements on the American left cuts a very different path than F&F’s through abolitionism, labor radicalism, and the twentieth century. And today, as it happens, a serious candidate for the Democratic Party’s nomination, who comes as close to the democracy-of-opportunity tradition as any major national politician in decades, has more to say about the Scandinavian model of social democracy than about any specifically constitutional source of his program. In these ways, the prospects for a more democratic political economy today hark back more to the international links that Daniel Rodgers details in his great history of Progressive reform, Atlantic Crossings, than to any version of the Constitution.

All of this leads to the question what it means to call a political program constitutional. It seems to me that F&F’s proposal is basically rhetorical. I don’t mean it is just about marketing a legislative agenda, but I do want to highlight a couple of contrasts with other kinds of claims. I don’t think their historical recovery invokes an historically-oriented theory of constitutional authority, in which a past sense of the constitution would bind the present just because it is the past sense of the Constitution. That is, I don’t think that, if it could be shown by the criteria they use that a libertarian reading of constitutional political economy were stronger than F&F allow, they would change their view of what judges or citizens should do.

This point about their theory of constitutional authority also suggests something about their theory of constitutional meaning: as it’s now laid out, it doesn’t have an error criterion. There’s nothing you could show F&F about text, structure, or history that would make them say – whatever their theory of constitutional authority – “Well, you’re right: I was wrong about that old constitution!”

Now, all this is great, and what I am saying is ground-clearing, not hostile criticism. F&F, I take it, are in the broad church of Protestant constitutionalism that recognizes that all the major concepts in the constitutional tradition are essentially contested, and that the terms in which they get contested are some of the major lineaments and bounds of American identity and political possibility – which are also essentially contested. The criteria of successful argument are pragmatic and democratic, which is also to say that they are historical, not conceptual. All constitutional argument is gambling with your face toward the future, and muttering into the ears of fellow citizens. Although we lawyers and law professors have our own professional orientation in this hurly-burly (and, perhaps, certain kinds of competence), it would be priestly obscurantism to pretend to stand outside it, navigating with hermeneutic astrolabes.

So, what does it mean – in these democratic and pragmatic terms – to talk about anti-oligarchy and an inclusive middle-class economy as constitutional issues? Here are the stakes as far as I can make them out.

First, because the constitution is the basic political document of the country, the idea of constitutional political economy emphasizes the interplay between democratic equality and self-rule, on the one hand, and economic order on the other. The insistence that democracy has an economic dimension is at the very heart of this argument, and talking about the economy’s constitutional meaning takes us directly to that intersection. In a time when economic argument gets relentlessly tugged in technocratic directions by the gravitational force of the economics profession – even among progressives – the importance of this move is hard to exaggerate. Of course, one could also just talk about a democratic economy, or a fair economy, as our leading social democrat tends to do; but talking about the constitution keeps the political character of the stakes in view.

Second, constitutional language points backward in time, and therefore to continuities of argument and aspiration over centuries. This strikes me as valuable in a forgetful culture. The parallels between the laissez-faire jurisprudence of the first and second Gilded Ages, or between radical free labor and the welfare state, may be possible to exaggerate, but I would rather see them exaggerated than forgotten. They are lessons in recurrent patterns of political economy, in its empirical and its theoretical dimensions: how power accumulates, how its apologists justify it, and how it may be resisted.

Third, and speaking more to our special training, it calls attention to political economy as an object of adjudication. At the very least, this may help to avert unpleasant surprises at the Supreme Court, such as the innovations in Commerce Clause and Spending Power doctrine that set Obamacare somewhat back on its heels. Better, it equips judges and advocates for understanding the importance and potentially interconnected coherence of the statutes that halfway secure a half-decent economy. The New Deal constitution of powers, permissions, and inclusion would have been enough if the mid-century economy of widely shared prosperity and growing social provision had kept on trucking. It didn’t, laissez-faire jurisprudence is back in neoliberal form, and judges and scholars need to engage these themes directly.

Last, speaking in constitutional language does, as F&F say early in their manuscript, add an exclamation point – and not just any exclamation point, but one that sounds in that old register of American commonality. This is one of the ways that Americans have said to one another: these problems are your problems, whether you want them or not; these principles have a claim on you, whether or not you would have chosen them. Recently, from Benedict Anderson to Ta-Nehisi Coates, we have been getting essential lessons in how these “imagined communities” are artificial and, inasmuch as they are tied to hierarchy, exclusion, and exploitation, also fraudulent. True. But the imagined constitutional community is also one of the ways our movements and prophets call power to account and draw ordinary people out of their parochial and self-concerned little carapaces.

A part of me wants to conclude, “That is nothing to set aside lightly.” The sentence writes itself from the rhythm of what precedes it. But another part wants to say, “These aspects of democratic life are too important to mystify with constitutional formulas and encrust with the barnacles an often terrible history.” (My rationalist side lacks a way with metaphor. Unsurprisingly.) These are, basically, my inner Burke, prizing as a precious achievement the language in which Americans have sometimes moved one another by appeal to principle, and my inner Bentham, calling for more light (that is actually Goethe on his deathbed, but never mind) and disdaining all myth and historical moss. I tend slightly to Burke, but I want to highlight the respective force of both alternatives.

In that spirit, let’s list the hazards of constitutional language, which are largely corollaries of the advantages. First, it tends to nationalize responses to the trans-national challenges of inequality and the erosion of democracy. Internationalism – communist and reformist and everything else – characterized much of the progressive politics of the first Gilded Age, which was also an era of economic globalization and shared crises. Maybe that is the direction in which we should move now. Maybe constitutional language directs our attention to precedents when we should be more interested in models and allies on offer today.

Second, the constitutional register may reduce our interest in historical allies who were themselves not interested in, or critical of, the constitution. (As I mentioned earlier, this is the vein that Aziz Rana is now mining.) Yet they might have had much to teach us.

Third, attention to constitutional themes will inevitably involve us in motivated historical interpretation. Looking across the room, not just for our friends, but for people and events we can recast as friends, always risks crossing from being intellectually generative to being intellectually distortive. Lawyers’ interpretation of history, like politicians’, seems able to handle only a modest dose of the full picture. And there may be ironic political costs, too. Rana and others have argued recently that the struggle for racial equality has suffered setbacks that began, partly, in embracing the Spooner-and-Lincoln-through-King “redemptive” view of the constitution that emphasized the egalitarian potential of old principles and obscured the depth and persistence of political-economic inequality.

Finally, there is the double-sided character of American commonality itself. In a time when we’re reminded every week of the exclusion and subordination both within and outside modern polities – from racialized police violence to refugee crises to the revival of herrenvolk nationalism in the Republican primaries – ideas like citizenship, touchstones of any idea of democratic commonality, have lost some of their all-in-it-together sheen and come under suspicion of being halfway lies inside the borders and stiff-arms outside against the unwelcome.

My own suspicion is that the modern state and its democratic politics remain the field where we need to fight out these issues, albeit with trans-national movements and the goal of building egalitarian frameworks that match the scale of the global economy. For this reason, I think F&F are right to bring us back to this essentially contested ground, with all its perennial, new, and intensified problems. My cautions are intended to highlight what some of that contestation looks like just now. There’s plenty of work to do.

Jed Purdy is Robinson O. Everett Professor of Law at Duke University Law School. You can reach him by e-mail at jedediah.s.purdy at gmail.com

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