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.