A Contemporary Manifesto for a Left-Liberal Constitutional Political Economy

Guest Blogger

For the Balkinization Symposium on Joseph Fishkin and William Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022).

Mark Tushnet

 In 1909 the Progressive journalist Herbert Croly published The Promise of American Life. The book, which became a best-seller, was a manifesto for the Progressive movement. Reading The Anti-Oligarchy Constitution, I was struck with its rhetorical similarity to Croly’s book. Better organized than Croly’s book, but just as jammed full of ideas, The Anti-Oligarchy Constitution is a manifesto for a “reconstructed” economic constitution.

But, as Fiskhin and Forbath implicitly acknowledge, they write in a political environment different from Croly’s. He wrote for a mostly urban Progressive movement just getting off the ground and coming on the heels of a decade or more of Populist organizing, mostly among farmers but to some degree among industrial workers. They write after (or in the middle of) what they call the “Great Forgetting,” the loss of an intellectual tradition vibrantly linking ideas about the Constitution, legislative duties, the economy, and the prerequisites of a well-functioning and stable democracy.

Here I want to reflect on the implications of the Great Forgetting. Fishkin and Forbath offer an account of why it happened, largely in the register of intellectual history, and their manifesto is, like Croly’s, a construction of a new constitutional political economy. Notably, though, Croly had a sort-of social movement at hand and had in mind a politician, Theodore Roosevelt, who he thought could muster the political force to implement the constitutional political economy Croly envisioned. And, partly through his admiration of Roosevelt, Croly saw the Progressive movement as deeply connected to the United States’s place in the world – its imperial role (a term Croly embraced). One consequence of the Great Forgetting is that we lack today even rough equivalents, with the Black Lives Matter movement and its parallels the closest but, as Fishkin and Forbath note, those movements’ focus isn’t yet on a new constitutional political economy.

Here's my take on Fishkin and Forbath’s account of why the Great Forgetting happened, followed by some observations about what that account omits. According to Fishkin and Forbath the Great Forgetting was characterized by the marginalization of a left politics – “socialism” – that had been a significant ally of Progressives before the New Deal. The first Red Scare in the 1920s was promoted by conservatives who continued their attack on communism and socialism through the New Deal. Notably, centrist liberals aligned themselves against communism, as in the purge of Elizabeth Gurley Flynn from the American Civil Liberties Union.

Once freed of the wartime necessity of an uncomfortable alliance with the Soviet Union, centrist liberals joined with conservatives in a second Red Scare. The liberal Americans for Democratic Action, for example, expressly set itself as a center-left alternative to the Progressive Party, which it characterized not inaccurately as a Communist front organization. Left-wing unionism was suppressed by the Taft-Hartley Act.

The Great Forgetting, then, might better be described as a sort of Freudian repression in centrist liberal thinking – an active though unacknowledged obliteration of the memory of a heritage that had brought centrist liberals to power.

But, of course, there was more to anti-communism than that. This isn’t the place for a full-scale account of anti-communism’s place in the U.S. political economy. Among the elements were of course the actual and perceived evils of the Soviet system, the ideological threat it posed to efforts by the United States and colonial power to obtain or retain influence over nations in what we now call the global South, and the importance of that influence in the post-war international political economy. And that leads me to the first notable omission from Fishkin and Forbath’s account of the U.S. domestic political economy.

What’s left out of Fishkin and Forbath’s manifesto? In brief: the world, social movements for the future, and political parties.

The world: Fishkin and Forbath describe the U.S. political economy in entirely domestic terms. The words “globalization” and “imperialism” don’t appear in the book’s index. And their account of neo-liberalism is cast in entirely domestic terms notwithstanding the impact of the so-called “Washington Consensus” on economic policy around the world in the 1990s.

Today the U.S. economy – and for that reason its political economy – is a global one. Our contemporary oligarchs act on and through the international economy. I’m reasonably sure that the reconstructed domestic political economy they seek will have to do something about the international political economy. Or, put another way, the democracy of inclusive opportunity that want to retrieve will have to have some elements not present in the tradition to which they appeal – not because that tradition lacked connection to an international political economy (the IWW was the “Industrial Workers of the World,” after all, and the hope for international proletarian solidarity wasn’t entirely extinguished by the nationalism many socialists exhibited during World War I), but because the international economy is different from what it used to be.

Social movements: Another striking omission from the authors’ manifesto are contemporary versions of the social movements that were an important part of the tradition of political constitutionalism they seek to revitalize. That’s not their fault. They do mention Black Lives Matter, which seems to me the only candidate for a national social movement similar to earlier ones. And some elements in BLM do have a policy agenda that reaches into the general economy. But, for reasons that need no explanation here, BLM hasn’t yet become an inclusive (enough) social movement that could support a broad constitutional agenda of democracy, opportunity, and inclusion. Croly’s manifesto had an audience of Progressives and their allies. I fear that Fishkin and Forbath’s audience is far narrower – roughly, people in the social class that reads Balkinization and moderately leftist Twitter.

Political parties: Finally, Fishkin and Forbath’s politics, entirely admirable on the merits, is strangely divorced from political parties and politicians. Again, Croly told his readers that Theodore Roosevelt was the political figure they should follow (later to be replaced by Woodrow Wilson). Though I might have missed some references, the only mention of a contemporary politician I found in the book is one to Senator Bernie Sanders in the book’s first footnote; there’s no index entry for Elizabeth Warren or AOC. Perhaps Fishkin and Forbath’s time horizon is longer than Croly’s, so that referring to contemporary politicians would make their book outdated just when its agenda might become politically salient.

Yet, though particular politicians come and go, our political parties don’t – for structural reasons, of course. So, when the time comes that their manifesto might play a part in a national political conversation, it’s going to have to be worked into the platform of some Democratic Party politicians. And, here the omission of attention to structural matters is important. The tradition to which Fishkin and Forbath appeal combined a substantive agenda – their democracy of inclusive opportunity – with prescriptions for institutional reform. The latter are almost entirely absent from The Anti-Oligarchy Constitution (no index entries for “filibuster” or “Court-packing,” for example). But, I think, realizing a contemporary anti-oligarchy Constitution will require institutional as well as substantive reforms.

Croly’s manifesto had a contemporary audience and was intended to have an impact in the relatively short run. There’s another more famous Manifesto that sought to create an audience that its authors thought might be buried beneath the surface, and perhaps we should think of Fishkin and Forbath’s as attempting the same. Yet it’s worth noting that the authors of that Manifesto spent the rest of their lives engaged in (among other things) actively organizing the movement they hoped to create.

Mark Tushnet is William Nelson Cromwell Professor of Law emeritus, Harvard Law School. You can reach him by e-mail at mtushnet@law.harvard.edu.