K. Sabeel Rahman and Ganesh Sitaraman
As questions of economic inequality have taken center stage in American politics, there has been a growing interest among public law scholars in questions of power, institutional design, inequality, and political economy. Scholars like Zephyr Teachout, Larry Lessig, Yasmin Dawood, and others have used concepts like domination and corruption to diagnose problems of oligarchy, inequality, and the failures of our campaign finance system. Professors Joey Fishkin, Willy Forbath, for example, have explored the concepts of domination and power throughout American constitutional history as a way to conceptualize disparities of both economic and political power and the role of law in redressing those disparities. Meanwhile, scholars like Kate Andrias and Daryl Levinson have taken a functional approach to power, showing how partisanship and wealth subvert the Madisonian constitutional structure. Both of us have engaged in these debates as well, excavating the concept of domination in debates over economic inequality and regulation and arguing that economic power undermines prominent theories of how the Constitution works. We have both also argued (here and here) that economic and political democracy is essential in order to maintain our constitutional system. While encompassing a range of projects, subfields, and approaches, we view this emerging literature as, in part, constituting a second Republican Revival.
Over thirty years ago, a similar burst of public law scholarship expressed a deep interest in republican political thought, engaging with a tradition of political theory running from Roman political thought through Machiavelli, Madison, and more. Several scholars explicitly framed a “Republican revival,” rooting Republican ideas in the American founding and using this reinterpretation to argue for a greater focus on civic deliberation in public law scholarship. Today’s use of neo-Republican political thought to inform public law scholarship, however, is distinct from the earlier iteration in ways that we think could potentially make it more impactful in current debates.
First, this new wave of Republicanism focuses not just on the founding, but on the entirety of American history. The first revival was in part a response to the emergence of originalism, and it largely focused on reinterpreting the Founding. The second revival, by contrast, canvasses the breadth of American history. Fishkin and Forbath, Sitaraman, Teachout, and Rahman, for example, all look at longstanding historical practice and traditions, rather than just emphasize the Founding or a small number of “constitutional moments.” The second revival’s historical breadth shows the continuity in republican concerns throughout American history. Rather than focusing on the Founding era, which some could argue is lost to history, this second revival has found republican concerns about domination, economic power, and political corruption throughout historical struggles over law, policy, and public discourse, from the early republic to the battles over industrialization to the struggles for civil rights. By engaging with the historical struggles over distinctively modern upheavals and transformations in addition to the earlier history of the republic, this broader historical engagement also uncovers important arguments from American political, legal, and constitutional history that speak more directly to today’s problems—in particular, our concerns with economic inequality and power.
Second, the second revival focuses more sharply on problems of power. Scholarship emerging from the first revival often focused on themes of virtue and deliberation—how these dispositions and features could be cultivated and institutionalized in the institutions of constitutional, public, and administrative law. By contrast, the central concerns of the second revival are problems of power: not just the disparities of power that corrupt and corrode public policymaking, but also the force and impact of concentrated private and economic power as well. This emphasis on power emerges both from the engagement with historical materials such as those from the abolitionists or the labor republicans, and from contemporary developments in neo-republican political theory. The challenge here is less about fostering deliberation and more about addressing disparities of power, and in particular building up countervailing power among key constituencies. Rahman’s work on domination, Teachout’s writings on corruption, Sitaraman’s work on the middle-class, and Fishkin and Forbath’s work on oligarchy, among others, are illustrations of this fundamental shift from virtue and deliberation to power and economics.
The final difference is the audience. The first revival focused in large part on the reinterpretation of constitutional principles and texts, and thus often addressed itself to public law scholars and, in particular, to courts. Judicial review was central to the first revival. The second revival, by contrast, comes after popular-constitutionalism and after the revival in interest in constitutional structure. Interventions in the second revival – Levinson, Andrias – are focused on structural arguments about the Constitution, more than judicial review, individual rights, and the countermajoritarian problem. More broadly, works in the second tradition, including Fishkin, Forbath, Rahman, Sitaraman, and others address themselves to popular social movements and legislators. The second revival aims to shift public understanding and catalyze civil society movements that can drive policy and institutional change.
Both Republican Revivals are products of their time. The First Republican Revival emerged during the ascendency of the conservative legal movement and with the legitimacy of judicial review under scrutiny. In line with the neoliberal spirit of the age, it deemphasized questions of economic power. The Second Revival comes as a response to the Second Gilded Age. It seeks to understand economic power and inequality, learn from how our forebears attempted to domesticate power in all forms, and to find a path forward to save a republic at risk.
Cross-posted at Law and Political Economy.
K. Sabeel Rahman is an Assistant Professor of Law at Brooklyn Law School. You can reach him by e-mail at sabeel.rahman at brooklaw.edu.
Ganesh Sitaraman is a Professor of Law at Vanderbilt Law School. You can reach him by e-mail at ganesh.sitaraman at vanderbilt.edu.