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 brooklaw.edu