Wednesday, January 27, 2016

Can the Constitution of Opportunity Carry the Day in American Politics?

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Cynthia Estlund

Joseph Fishkin and William Forbath, in their book-in-progress, have brilliantly exposed and mined a once-powerful, mostly-forgotten vein of constitutional political economic thought:  the notion that widely shared economic opportunity, and a broad middle class flanked by neither an underclass nor an oligarchic overclass, are essential foundations of our republican form of government.  What has been mostly forgotten, and what Fishkin and Forbath hope to revive, is the constitutional dimension of debates over economic inequality, mobility, and opportunity.  The forgetting is part of what they are up against in persuading readers that the forgotten constitutional register in which such arguments were made for much of American history really matters. 
I confess to being in thrall to the Fishkin-Forbath view of things – deeply moved by their retelling of American political and constitutional history, and largely in tune with both their regrets and their hopes for a resurgence of the progressive counterpart to the neo-libertarian constitution.  In particular, I admire the authors’ braiding together of the two histories of struggle for “equal opportunity” – the struggle for inclusion and the struggle for broadly shared opportunity; the two authors’ separate writings foreshadow both histories and their integration, but the book promises to be a fuller realization. 
Those two struggles – I will call them “the constitution of inclusion” and the “constitution of opportunity” – often struggled with each other throughout American history.  Indeed, they still do, as racially-inflected fears and resentments are among the forces that continue to divide the necessary political constituency for redistributive reforms.  But I am getting ahead of myself. 
My first aim here to probe one central issue in the book:  Why did those two strains of political economic thought diverge so dramatically on just the dimension the authors stress – on the extent to which their exponents recognize and capitalize on the constitutional stakes of these struggles – after the New Deal?  

A clue may be found in a single sentence from the Supreme Court’s pivotal Jones & Laughlin Steel decision upholding the National Labor Relations Act against both commerce clause and liberty of contract claims.  In brushing aside what was left of the latter, the Court said, rather breezily:   
[T]he statute goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.
That is a fundamental right.  Employees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents.
In Fishkin and Forbath’s account, this was an explicit, but now forgotten, recognition of a constitutional right to form unions and bargain collectively.  That may be a fair reading.  What else would it mean in our legal culture to call a right “fundamental”?  And it undoubtedly harkened to constitutional claims made on behalf of the right to organize by many unionists and worker advocates at the time.  But I think the precise words chosen by the Court reflect a hedge, and a reluctance to jump back into the very constitutional thicket from which it was in the process of extricating itself – the thicket of constitutionalized claims about the proper organization of economic life. 
Of course we now know that the Court was poised to jump more deeply into another constitutional thicket that was hardly unrelated to the organization of economic life:  the effort to dismantle American apartheid.  Fishkin and Forbath offer several possible reasons for the post-World War II eclipse of the “constitution of opportunity” – of explicitly constitutional arguments for broadly shared economic opportunity – just as the “constitution of inclusion” began to shape the agenda of all three branches of the federal government.  But they give short shrift to one possible explanation, perhaps because it is too familiar and conventional:  Perhaps the traumatic rise and fall of Lochner transformed conceptions of the proper role of constitutional argumentation in ways that favored the “constitution of inclusion,” and disfavored the “constitution of opportunity,” even more dramatically than they admit. 
We can probably all recite by heart the edict of Carolene Products, issued a year after Jones and Laughlin Steel:  Constitutional scrutiny was to be redirected away from regulation of “ordinary commercial transactions” – and that manifestly included labor market transactions – and toward a narrower set of legal controversies:  laws conflicting with a “specific prohibition” of the Constitution and its Bill of Rights; laws restricting the political process; and those directed at racial minorities, prejudice against whom “tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”  That neatly distinguished the soon-to-be blockbuster cases involving racial segregation from other controversies over political economy and the distribution of opportunity.  Exclusion of African-Americans from whatever economic opportunity structure was enjoyed by white people offended our constitutional commitments in a way that defects in that opportunity structure itself did not. 
Yes, of course, the familiar Footnote Four categories were meant to govern the scope of judicial review, not to exhaust the meaning of the Constitution for all political actors.  But that may understate the lesson learned from Lochner and the recent constitutional crisis over the early New Deal.  That era had exposed – arguably for the first time, and especially for progressives – the really dangerous potential of constitutionalizing arguments about how the economy should be governed.  Even if constitutional arguments need not be directed to judges, they tend to empower judges; judicial review can become judicial supremacy, and can defeat democracy, if the Constitution is read to govern too much.  Better to adopt a more spare constitutional vision that leaves to the political process the great bulk of decisions, especially on economic policy, and that constrains the political process mainly when it is manifestly prone to failure, as in the case of stigmatized and marginalized minority groups. 
For judges and scholars that lesson resonated for many decades, and we can all hear its refrains echoing in our heads.  I hear them in the voice of my Constitutional Law professor, Robert Bork, and in the words of John Hart Ely, whose scholarly elaboration of the logic of Footnote Four in Democracy and Distrust posed the most cogent challenge to the Court’s expansive constitutional decisions in the realm of reproductive autonomy.  It is almost embarrassing to return to those refrains here, in the face of Fishkin and Forbath’s profoundly learned plea for a more fulsome, less court-centered, vision of what the Constitution requires of our political economic arrangements.  But I do think it points to an important part of what those arguments are up against. 
Let me be more specific:  What Fishkin and Forbath’s arguments are up against is not so much a restrained judicial conception of the Constitution’s demands; that once-conservative commitment went out the window some time ago – or rather its political valence shifted some time ago (in a colossal case of Balkin-style “ideological drift”).  They are up against a political process, or more to the point an electorate, that is deeply divided over the egalitarian, anti-oligarchy agenda that Fishkin and Forbath and many like-minded progressives are convinced is essential not only to the welfare of the large majority of that electorate but to the survival of a republic form of government. 
The logic of leaving the great bulk of economic and social policymaking – including the “constitution of opportunity” agenda – to elected legislators and democratic politics is powerful, and Fishkin and Forbath do not deny it.  The “constitution of opportunity” agenda is one that appeals, or should appeal, to all but the most privileged citizens (and to many of the latter as well).  Unfortunately, the most eloquent voices for that agenda have not been able to win many elections outside of Vermont and Massachusetts. 
Fishkin and Forbath have much to say about why that is so.  For one thing, there are racial divisions, resentments, and anxieties about immigration, and the zero-sum politics that they have fueled.  The “constitution of inclusion,” for all its accomplishments, has not utterly conquered the hearts and minds of the whole citizenry.  This is a problem to which I will return. 
One source of the soured political environment lies in the ability of wealthy actors to skew the political process and public debate away from serious redistributive policies and other threats to their privileges.  (They might do so in part by exploiting cultural, racial, and other divisions and tensions.)  The ability of wealth to skew politics strikes at the very heart of the “constitution of opportunity” that Fishkin and Forbath want to revive:  It is precisely because the distribution of wealth and economic opportunity is bound to affect the distribution of political power that the former is a matter of profound constitutional import in our republican form of government.  So the “constitution of opportunity” agenda seeks not only to engineer a more equal distribution of wealth and economic opportunity, but also to interrupt the mechanisms by which wealth skews politics.  On occasion in recent years the latter effort has managed to attract the necessary votes to become law.  But majority-backed efforts to constrain the role of money in politics have been blocked by the Supreme Court in the name of the First Amendment. 
This is clearly one place where the “constitution of opportunity” could and should make a difference – that is, in countering the increasingly full-throated neo-libertarian conception of the First Amendment that constitutionalizes the market as the proper organizing principle for politics as well as economics.  Even the most court-centered understanding of what counts as constitutional argumentation must recognize this role for the “constitution of opportunity,” and for the long historical tradition that stands behind it.  The “constitution of opportunity” narrative could offer a reason – one weightier and more substantive than separation of powers alone – to defer to the political branches when they act to limit the power of wealth in political discourse.  That counter-narrative would not automatically trump all First Amendment objections to regulating the expenditure of money on speech, but it might push back toward a more balanced approach to the issue.
Imagine a decision by a slightly different constellation of Supreme Court justices reversing course in the field of campaign finance, and affording greater latitude for legislative efforts to limit the ability of rich people and corporations to influence political outcomes.  That decision could be based simply on a more restrained sense of the judicial role vis-à-vis the political branches.  But it would be more likely and more persuasive if it were based on a constitutional counter-narrative to neutralize the prevailing libertarian attachment to the freedom to buy nearly all that money can buy.
Indeed, if one can imagine that opinion, it might echo the Court decisions that gave a green light to the New Deal – decisions that were informed by, even if they did not explicitly embrace, constitutional arguments about the entitlements of workers.  Like Jones and Laughlin Steel, it would defuse the claimed liberty of speaking through money with a competing fundamental interest – that of the majority of ordinary people to ensure that their voices are not drowned out by the amplified voices of the rich.  And like West Coast Hotel, it would turn the central metaphor of the opponents of regulation against them:  WCH famously not only rejected the notion that a minimum wage forced employers to subsidize poor workers, but portrayed substandard wages as a forced subsidy from the public to greedy employers.  An opinion allowing the people greater power to constrain the role of wealth in politics might similarly turn around the question of who was silencing whom:  Instead of seeing an illegitimate effort to silence the rich, it might portray the ability of wealthy interests to buy the loudest megaphones, or to saturate the airwaves, as effectively silencing less moneyed voices.
The need for a counter-narrative of the sort that Fishkin and Forbath envision is urgent within my own stomping grounds of labor law.  Consider the DC Circuit’s decision in National Association of Manufacturers v. NLRB, which struck down on First Amendment grounds an NLRB rule requiring employers to post in the workplace an official notice of employee rights under the NLRA.  In the court’s view, employees’ interest in knowing their statutory rights to join with co-workers in support of mutual interests was trumped by the employer’s interest in refusing to cede one-and-a-half square feet of wall space to display a message to which it objects – a message that merely describes employees’ rights under the NLRA.  That is an astonishing extension of the neo-libertarian right to opt out of a regulatory requirement that happens to take the form of “speech.”  And it is a vivid demonstration of how little weight is now accorded by conservative judges to employees’ collective labor rights.  A “constitution of opportunity” narrative could conceivably help to recalibrate the scales.  Information about employee rights under the NLRA, far from “controversial” and objectionable, would be essential to enabling workers to counter employer power with their own collective power.  
Turning now to Friedrichs, now before the Supreme Court.  How might a decision upholding the agency fee provisions read if the “constitution of opportunity” were as salient in today’s legal and political culture as its New Deal version was in the 1930s?     
That opinion would rest not only on stare decisis and the oft-reaffirmed precedent of Abood, and not only on judicial restraint, magnified by federalism concerns, vis-à-vis the decisions of a state’s elected officials about how to conduct the state’s labor relations.  It would rest not only on the state interests in securing “labor peace” within its workforce through collective bargaining, and the corrosion of that collective bargaining structure entailed by allowing “free riders” to take its benefits without bearing their fair share of its costs.  The “free rider” problem is very real but is often, and understandably,  presented in rather abstract economic terms that might appeal even to conservative justices.  And both the free rider problem and the interest in “labor peace” appear amenable to empirical refutation or at least empirical doubts:  Can the state really show, as the petitioners claim it must, that the mandatory agency fee is necessary to the very survival of its public sector unions?  Surely not, if only because unions faced with the loss of agency fees do not simply curl up and die, but try to find ways to make up for the loss of fees.  None of those arguments, separately or together, now seem likely to carry the day in Friedrichs against the ever-expanding and ever-more-sanctified First Amendment right to opt out of collective institutions and democratic decisions. 
But if the “constitution of opportunity” were a vibrant living theme in public and legal discourse, it might support a powerful counter-narrative about the necessity of strong, democratically-governed collective institutions to enable workers to aggregate and amplify their own voices and their bargaining power.  That is essentially the same counter-narrative that helped to defeat the last stand of liberty of contract against the NLRA in Jones and Laughlin Steel.  
The disparagement of union members’ interests in aggregating and amplifying their own voices also cries out for a counter-narrative.  Consider one argument made for the petitioners in Friedrichs:  The Court need not worry that unions, if deprived of agency fees, will be unable to perform their collective bargaining functions; at worst they merely will need to divert some of the money they are now spending on political activities into representing non-fee-paying objectors.  That is, they will merely need to sacrifice their own members’ freedom to participate collectively in the political process, and divert some of their own dues monies from their intended purpose, in order to subsidize free-riding non-members whom the union has a duty to represent.  That is an appalling denigration of collective rights of political participation in the service of an individual right to opt out of paying for services by an institution whose positions she opposes.  A “constitution of opportunity” narrative would value union members’ ability to speak through unions in the political domain as an indispensable counterweight to the political clout of the wealthy, for unions are among the few institutions that are able to aggregate the political voices of their members and put resources behind those voices. 
It seems clear to me how much we need the sense of urgency and high purpose that the “constitution of opportunity” would bring to the union’s side of this case and others.  But let us now step back and notice an inconvenient fact:  What the Friedrichs plaintiffs, and very possibly a majority of the Court, seek to do through their own constitutional narrative is to nationalize (for now within the public sector) a “right to work” regime that has been chosen by fully half the states.  The people of half the states in the union have at one time or another, by one political avenue or another, decided that it is wrong to compel individuals to pay money to a labor union, even when that union has been chosen by majority rule and delivers tangible benefits to the whole group of workers.  And that right-to-work movement continues with greater intensity now than in the half-century following the Taft-Hartley Act.  That movement threatens to do through politics what its litigation arm may not be able to do:  To extend the right-to-work ban on all mandatory union fees to the private sector as well as the public sector.  (A formidable state action hurdle faces a constitutional challenge to private sector agency fees, stemming as they do from collective bargaining agreements between non-state actors.)  So a counter-narrative could help to nudge the courts toward deference to the political branches when they act to advance the “constitution of opportunity”; but that is not enough to counter the political branches, or the people, when they act to opposing ends.
The point – and it is one that Fishkin and Forbath are acutely aware of – is that the people need to be persuaded by the “constitution of opportunity” agenda before it can do much more than fend off or neutralize its neo-libertarian constitutional counterpart.  Indeed, it probably can’t do even that without gaining much greater popular traction than it now enjoys.  Of course, it is among the highest callings of intellectuals to change the public conversation.  But it is also among the most challenging of callings, and the challenges faced by the Fishkin and Forbath agenda are daunting indeed.
Many white working Americans who are struggling to keep their heads above water are more inclined (and are encouraged) to blame others – racially and ethnically distinct others – who are engaged in that same struggle than those who are pulling the strings at the top.  The history that Fishkin and Forbath recount shows those divisive and exclusionary impulses at work among the foremost expositors of the “constitution of opportunity,” and indeed interwoven into their agenda.  Indeed, across the whole expanse of history that they survey, the voices that support a genuinely inclusive commitment to broad-based economic opportunity are few and far between, and never (I think) commanded a sturdy political majority. 
Many of today’s progressive intellectuals and opinion leaders would gladly sign on to an inclusive opportunity agenda – one that brought together both constitutional narratives of equal opportunity.  To do so, they would have to rethink the relationship between identity-group politics, which has played a very large role within the American left in recent decades, and the struggle for greater economic equality.  But even assuming that educated liberal elites could fashion a fully integrated inclusive opportunity agenda, the political constituency that they would need to assemble in support of that agenda is far more fractured, partly along racial lines and partly along cultural lines that progressive elites are perhaps too quick to view as misguided distractions from the economic interests that these non-elites share. 
It is an unfortunate fact of human history so far that it is much, much harder to build a broad constituency for a thick set of tax-supported social entitlements, for example, in a society that is highly diverse along racial, ethnic, and religious lines.  The countries of Northern Europe that have provided our most familiar models of generous and egalitarian social welfare policies developed those policies within strikingly homogeneous societies.  Mass immigration and the much greater diversity it has brought about have put those policies under serious political pressure.  (Some elements of “American exceptionalism” aren’t so exceptional anymore.)  The political difficulties would be mitigated if it were possible to fund the project of bringing up the bottom largely by soaking the rich at the top.  But I doubt it is possible, either economically or politically. 
It might be too easy for the highly educated liberal-minded elites who would lead the charge for an inclusive constitution of opportunity to ascribe those illiberal impulses entirely to racism or ignorance (though those are still in wide circulation).  Indeed, sometimes it is illiberal attitudes and practices within some immigrant communities that triggers a backlash in countries that have cultivated a culture of tolerance, gender equality, and freedom of expression.  Diversity can bring real differences in beliefs, behavior, language, family arrangements, and cultural practices; and some of those differences challenge deep-seated assumptions about who is deserving of societal support, who is part of the “us” to whom we are asked to extend our solidarity.  Indeed, when borders seem porous and immigration flows uncontrolled, people wonder even how many of “us” there are. 
All of this means not that the “constitution of opportunity” agenda is doomed, but only that the interplay and tension between the two strands of modern liberalism continues, and will continue even if Fishkin and Forbath and their allies succeed in restoring the constitutional heft and resonance of arguments about economic inequality.  No surprise there, certainly not to the authors of this rich account.   
Cynthia Estlund is Catherine A. Rein Professor of Law at New York University School of Law. You can reach her by e-mail at cynthia.estlund at

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