Wednesday, February 03, 2016

What is “constitutional” about “constitutional political economy”?

Guest Blogger

For the Symposium on the Constitution and Economic Inequality

K. Sabeel Rahman

Last week the Texas Law Review hosted an excellent symposium on the “Constitution and inequality,” centered around the forthcoming Constitution of Opportunity, by Joey Fishkin and Willy Forbath.  In this moment of heightened public anxieties over inequality, exclusion, and oligarchy, Fishkin and Forbath and other participants at the symposium offered different approaches to a more constructive vision of constitutional political economy that prioritizes economic opportunity, inclusion, and democracy instead. The conversations during the conference were extraordinarily far-reaching and provocative, centering around two major fault lines.  First, what is gained by engaging these questions of opportunity, inclusion, and democracy through the specific register of constitutionalism?  And second, can we truly extract these values in any meaningful way for our present moment out of the historical traditions that Fishkin, Forbath, and others are mining?

To take the second question first, there do seem to be robust and inspiring normative resources in our constitutional history that can speak to the confluence of concerns today around inequality, exclusion, and oligarchy.  As several speakers in the symposium noted, in addition to the kind of macro-historical narrative developed by Fishkin and Forbath, particular historical moments offer especially rich source material for normative imaginings of equality, inclusion and democracy.  Some presenters like Jim Pope and Mark Graber turned to the radicalism of Reconstruction, particularly the ways in which the Thirteenth Amendment was, for a time, a potential vessel for a multiracial movement for economic populism.  In my own comments and work, I have suggested that Progressive Era political thought and reform politics offer such a resource, focusing on the economic ills of domination, and turning to the ideal of robust democratic agency, participation, and accountability as a preferred response to the new forms of economic power in the industrializing economy.
Here lies one important marker for efforts like Fishkin and Forbath’s to recover a more egalitarian and democratic constitutional tradition.  To the extent that these prior episodes offer us inspiration and normative resources, I think they suggest something potentially much more radical than may be often presumed.  As Jack Balkin noted in his comments, there is a common thread here, in that many of these attempts to find a historical inspiration for a more egalitarian and democratic political economy draw on themes of republicanism.  But, as the examples of Reconstruction and radical Progressive, Populist, and labor republican thought suggests, the kind of republicanism on offer is not the version of republicanism that emphasizes genteel values of civic virtue, deliberation, nor is it the exclusionary and elitist republicanism premised on the presence of an underclass.  It is, rather, radically egalitarian and universal—and above all, conflictual.  The radicals of Reconstruction envisioned a more inclusive and egalitarian republic, but it was a highly controversial vision, one that achieved its successes with the backing of the sword, and whose radicalism triggered rapid and violent counterrevolution.  The radicals of the late nineteenth and early twentieth century faced similarly uphill battles to make their vision of an inclusive, egalitarian, and democratic political economy a reality.
I am drawn to the idea that there is a more radical strand of constitutional political economy to be recovered, and that it resonates with a republican tradition.  But it is important to question to what extent the radicalism of this tradition is really captured by more broadly appealing modern terms like “economic opportunity” and “middle class” economics.  Certainly these are worthwhile economic aspirations, but the kind of radicalism evoked in earlier moments of American history—the radicalism most worth recapturing—my push us even further than this terminology suggests.

               This then leads to the first question: in what way is this endeavor really a matter of constitutional law?  In his provocative comments, Frank Michelman posed the question bluntly, suggesting that perhaps Fishkin and Forbath’s enterprise (and those of others following in their mold) might represent a form of rhetoric in its most esteemed form: an argument seeking to persuade, but not a legal claim of right.  But reflecting on this challenge after the symposium, I think there are three important ways in which Fishkin and Forbath’s project, and the parallel efforts of others seeking to recover a more democratic and egalitarian political economy, is genuinely “constitutional”.

               First, these projects are constitutional in that they concern the meaning, understanding, and import of our most foundational moral values.  What do our commitments to equality, to inclusion, to democracy actually require?  How can we rekindle a moral imagination and public philosophy that encompasses more than just claims to efficiency, growth, expediency, or raw political interest? These are the fundamental values that are evoked in our constitutional texts, structures, and collective life—and it is these values that any project of constitutional political economy attempts to define and enliven.

               Second, these projects are constitutional in another sense, in that they gain purchase through implications for the basic structures that literally constitute our economy and polity.  This is not the “big-C” Constitutionalism of Constitutional text, doctrine, or Supreme Court jurisprudence.  It is rather what we might think of as the “small-c” constitutionalism of our basic economic and political structures, how we constitute the market economy through laws that define its basic forces and dynamics; how we constitute the polity through regulations and processes that shape the allocation of political power.   So on this understanding of constitutionalism, looking for a Constitutional claim of right under the Constitutional text is in a sense looking in the wrong place.  Instead, constitutional political economy has its impact by informing diagnosis, critique, and reform through the vectors of legislation, regulation, and social movements.  Thus, we might turn to the constitution of the market, looking to legislative and regulatory regimes like antitrust and the battle to curb private power (as suggested by Zephyr Teachout); the public utility model and the effort to assure fair and equal access to social necessities (as suggested by Bill Novak); the structure of the tax system (as noted by Ajay Mehotra) or the global trade regime (as suggested by David Grewal); or the constitution of urban space, housing, segregation, and inclusion (as suggested by Olati Johnson).  We might see the impact of constitutional political economy in efforts to rebalance the political power of news forms of worker association and grassroots social movements (as suggested by Kate Andrias and Brishen Rogers).
               Indeed, this is what is so compelling in my own view about the radicals of the Progressive Era.  For reformers like Louis Brandeis, John Dewey, and Robert Hale, the problems of economic domination and the values of democratic agency were best addressed not through judicial findings of right, but rather through efforts to remake the foundational legal structures of the market and political process themselves.  To the extent that courts appear in this vision of constitutionalism, it is to provide ample leeway for legislative, regulatory, and movement-based experimentation and innovation in these areas.  This “small-c” constitutionalism evoked by Fishkin and Forbath’s project thus follows in the venerable tradition of popular constitutionalism.  If first wave popular constitutionalism emphasized the move from a focus on courts to a focus on popular politics in shaping constitutional meaning, more recent developments in this vein—particularly the work of Eskridge and Ferejohn—have turned to the quasi-constitutional stature of legislative arrangements.  Taking this one step further, we get the kind of constitutional political economy focused on basic structure, on legislation as well as regulation, and on social movements.  This is where Fishkin and Forbath point us towards, and this is a rich area for future legal scholarship.

               These two modes of constitutionalism—as values, and as basic structure—operate to on the one hand elevate legislation, regulation, and popular politics as sites of struggle, debate, and social change, while on the other hand de-emphasizing the Constitution-as-text and the Court as primary.  It also importantly serves as the basis for what Jed Purdy called an “imaginative fiction”—a project that aims to inspire by sketching an alternative history, values, and structures.

               The import of this kind of a project points to a third mode in which we might understand these works as “constitutional”—in their political aspiration to literally re-constitute American political economy today.  The timing of Fishkin and Forbath’s project—and of the remarkable confluence of scholarly interest in issues of inequality, power, structure, and democracy on display at the symposium—suggests as much.  Arguably we find ourselves in a unique moment today, often referred to as a “Second Gilded Age” where the country faces a confluence of economic and political inequality.  But I suspect that the reason why so many scholars are gravitating towards these questions of inequality, exclusion, oligarchy, and power is because many of us sense that this moment is also unique in its capacity to shift—perhaps radically—our broad understandings and structures of political economy.  We are living in a moment of rupture.  And so the stakes of this moment are not just in its negative dimensions, in the problems of inequality and disparaties of power and opportunity we see all around us.  The stakes are in the as-yet-unrealized potential for the emergence of new constitutional understandings and basic structures.  We may be in a Second Gilded Age, but done right, the politics and potential of this moment could be a Third Reconstruction—or a new re-founding.
The populists, progressives, and labor republicans of the late nineteenth century certainly understood themselves as participating in a battle to redefine the fundamental and literal constitution of the country (the 1892 People’s Party platform, for example, styled itself deliberately as a Second Declaration of Independence).  This ferment eventually produced the ideas that became the New Deal settlement a generation later.  These projects of constitutional political economy appearing in a variety of forms and disciplines in legal scholarship today could help contribute in some small way to a similar constitutional shift—one that, if we are lucky and if done right, could not merely recreate the New Deal settlement, but instead reinvent it for a radically different social, economic, and political context.  

K. Sabeel Rahman is Assistant Professor of Law, Brooklyn Law School. You can reach him by e-mail at sabeel.rahman at

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