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.