Saturday, January 23, 2016

Why Constitutional Political Economy?

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

Frank Michelman

I will be part of the gathering soon in Austin for talk about Joey Fishkin & Willy Forbath's project on "The Constitution of Opportunity." I haven't had time yet to look through their latest partial draft, just recently received, to see how it stacks up against my remarks at a Harvard colloquium last March about the draft we had before us then, but I thought that, as a kind of warm-up for input to the Austin event, I would send some of those remarks along now. Between now and Austin, I will be looking to see how far they may by now be superseded.

We can distinguish between claims focused on structures and claims focused on goods -- between claims regarding the general structural conditions for opportunity, civic equality, and non-domination and claims regarding supply of specific, immediate material needs. Some might want to say that while American politics over the past several decades have been at least somewhat receptive to policies of delivery to the desperately needy of goods required for basic nutrition, shelter, medicine, and literacy, they have not been nearly so receptive to ideas of constitutionally obligated attention to the kinds of structural policies on which opportunity depends -- policies, say, on jobs, markets, trade, wealth, families, education, and social geography. . . .

. . . I turn now to a question about our speakers' paper and the larger project it represents. It's a question of which they plainly are aware. I'll put it first in terms of the famous insistence of Holmes, in his Lochner dissent, that a country's constitution is not made, and should not be deployed, to lock the country into any "economic theory" that the politics of the day would not be expected on its own to carry out. It seems to me that by "constitution," there, Holmes was not talking about some general conception or idealization of a political and social order, which idealization we might honorifically call "constitutional" as a way to mark its widely perceived centrality to ideas of political legitimacy in that country. By "constitution," Holmes meant a particular class of textual objects, the kind meant for service as a legal code controlling on the day-to-day politics of the country. It was that class of things that should not, Holmes thought, attempt or purport to shackle the country to an economic "theory" -- or hence to some general cast of economic policy -- when the politics of the day are looking in a different direction.

Holmes's declaration to that effect has since been widely approved and accepted, not least on the American legal left. Now here come my friends F & F insisting not just on the centrality of an opportunity component in the historic American social contract, but insisting specifically and emphatically on the constitutional status and import of that centrality. Do they thereby now declare their rejection of the Holmesian wisdom? Do they think such a rejection prudent in the current political and constitutional-discursive milieux? I doubt they would answer either question with a yes, but the questions are ones that their text does push to our awareness.

The text speaks, actually, about quite an assortment of things "constitutional." We have "constitutional order," "constitutional tradition," "constitutional discourse." We have constitutional "norms," "claims," "arguments," and "guarantees." Our authors make clear that the history of argumentation that their paper recollects, and for which it seeks revival, is a history of claiming in the name of, by force of, the historical pact we know as the Constitution of the United States. But then one phrase we might thus have expected to hear becomes noticeable by its absence from their text. Our authors do not ever in this paper use the phrase "constitutional right" in relation to claims for structures of opportunity. The only thing their paper ever labels as a constitutional right is one that they disapprove, the alleged constitutional right of liberty of contract. So there we come to a question for the authors. This seeming reticence about naming the obligation for which you want to mobilize support as not just "constitutional" but specifically as a constitutional right: Is that accidental or intentional?

My next and larger question might well contain the answer to that last one. It=s about why our authors attach such importance as they do to restarting a recognition of opportunity and its distribution as, specifically, constitutional concerns -- as concerns of, specifically, constitutional dimension and moment? What is so crucial about a classification of these matters and debates as "constitutional," if not an effect of channeling them as pursuits of constitutional law for courts of law to attend to? In current American conditions of political discourse -- not ones I expect our authors would favor but still ones with which they must cope -- calling a matter "constitutional" could look like a way to steer primary responsibility for it into courts of law. But why do that? Why write with hopes of motivating political groundswell, but then do so in terms that also could direct that groundswell into legalist channels presided over by the Supreme Court?

Of course the paper shows awareness of the question. It explains very ably how courts of law have been finding, in various constitutional clauses -- the First Amendment! -- legal reasons to interpose against the legislative pursuit of policies evidently aimed at fulfillment of an aspirational constitution of opportunity. To the end of mitigating such effects, it would certainly be helpful to reignite in American politics the strongest and most visible sense of the centrality in the American social contract of a commitment to fair opportunity. Presumably the judges would not be immune.

When our authors write, for example, of people proclaiming the "constitutional necessity" to counter the tendency of wealth to convert economic into political domination, they could be using "constitutional" in just that sense of appeal to culturally embedded ideas of the core of the social contract, for which the Constitution symbolically speaks. The complication, though -- to repeat -- is that appeals to constitutionality may also, in current conditions, resound as invocations of a text that's regarded first and foremost as a legal code that courts of law are commissioned enforce against legislative and executive governmental authorities going overboard in response to popular groundswells.

Around the world these days, not just in the United States but certainly very much so here, many on the left, and some on the right, express concern about what they see a collapse of the politics and discourse of justice and legitimacy into debates over the meanings to be given to texts in enacted legal codes called constitutions. Do F & F share in that observation of a tendency? Do they see it as benign? Malignant? Not necessarily either the one or the other but for us by our political mobilizations to make into the one or the other?

Frank Michelman is Robert Walmsley University Professor, Emeritus, Harvard Law School. You can reach him by e-mail at fmichel at

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