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