For the Balkinization Symposium on Joseph Fishkin and William Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022).
Mark Tushnet
But, as Fiskhin and Forbath
implicitly acknowledge, they write in a political environment different from
Croly’s. He wrote for a mostly urban Progressive movement just getting off the
ground and coming on the heels of a decade or more of Populist organizing,
mostly among farmers but to some degree among industrial workers. They write
after (or in the middle of) what they call the “Great Forgetting,” the loss of
an intellectual tradition vibrantly linking ideas about the Constitution,
legislative duties, the economy, and the prerequisites of a well-functioning
and stable democracy.
Here I want to reflect on the implications of the Great Forgetting. Fishkin and Forbath offer an account of why it happened, largely in the register of intellectual history, and their manifesto is, like Croly’s, a construction of a new constitutional political economy. Notably, though, Croly had a sort-of social movement at hand and had in mind a politician, Theodore Roosevelt, who he thought could muster the political force to implement the constitutional political economy Croly envisioned. And, partly through his admiration of Roosevelt, Croly saw the Progressive movement as deeply connected to the United States’s place in the world – its imperial role (a term Croly embraced). One consequence of the Great Forgetting is that we lack today even rough equivalents, with the Black Lives Matter movement and its parallels the closest but, as Fishkin and Forbath note, those movements’ focus isn’t yet on a new constitutional political economy.
Here's my take on Fishkin and
Forbath’s account of why the Great Forgetting happened, followed by some
observations about what that account omits. According to Fishkin and Forbath
the Great Forgetting was characterized by the marginalization of a left
politics – “socialism” – that had been a significant ally of Progressives
before the New Deal. The first Red Scare in the 1920s was promoted by
conservatives who continued their attack on communism and socialism through the
New Deal. Notably, centrist liberals aligned themselves against communism, as
in the purge of Elizabeth Gurley Flynn from the American Civil Liberties Union.
Once freed of the wartime necessity
of an uncomfortable alliance with the Soviet Union, centrist liberals joined
with conservatives in a second Red Scare. The liberal Americans for Democratic
Action, for example, expressly set itself as a center-left alternative to the
Progressive Party, which it characterized not inaccurately as a Communist front
organization. Left-wing unionism was suppressed by the Taft-Hartley Act.
The Great Forgetting, then, might
better be described as a sort of Freudian repression in centrist liberal
thinking – an active though unacknowledged obliteration of the memory of a
heritage that had brought centrist liberals to power.
But, of course, there was more to
anti-communism than that. This isn’t the place for a full-scale account of
anti-communism’s place in the U.S. political economy. Among the elements were
of course the actual and perceived evils of the Soviet system, the ideological
threat it posed to efforts by the United States and colonial power to obtain or
retain influence over nations in what we now call the global South, and the
importance of that influence in the post-war international political economy.
And that leads me to the first notable omission from Fishkin and Forbath’s
account of the U.S. domestic political economy.
What’s left out of Fishkin and
Forbath’s manifesto? In brief: the world, social movements for the future, and political
parties.
The world: Fishkin and
Forbath describe the U.S. political economy in entirely domestic terms. The
words “globalization” and “imperialism” don’t appear in the book’s index. And
their account of neo-liberalism is cast in entirely domestic terms
notwithstanding the impact of the so-called “Washington Consensus” on economic
policy around the world in the 1990s.
Today the U.S. economy – and for
that reason its political economy – is a global one. Our contemporary oligarchs
act on and through the international economy. I’m reasonably sure that the
reconstructed domestic political economy they seek will have to do
something about the international political economy. Or, put another way, the
democracy of inclusive opportunity that want to retrieve will have to have some
elements not present in the tradition to which they appeal – not because that
tradition lacked connection to an international political economy (the IWW was the
“Industrial Workers of the World,” after all, and the hope for
international proletarian solidarity wasn’t entirely extinguished by the
nationalism many socialists exhibited during World War I), but because the
international economy is different from what it used to be.
Social movements: Another
striking omission from the authors’ manifesto are contemporary versions of the
social movements that were an important part of the tradition of political
constitutionalism they seek to revitalize. That’s not their fault. They do
mention Black Lives Matter, which seems to me the only candidate for a national
social movement similar to earlier ones. And some elements in BLM do have a
policy agenda that reaches into the general economy. But, for reasons that need
no explanation here, BLM hasn’t yet become an inclusive (enough) social
movement that could support a broad constitutional agenda of democracy,
opportunity, and inclusion. Croly’s manifesto had an audience of Progressives
and their allies. I fear that Fishkin and Forbath’s audience is far narrower –
roughly, people in the social class that reads Balkinization and moderately
leftist Twitter.
Political parties: Finally,
Fishkin and Forbath’s politics, entirely admirable on the merits, is strangely
divorced from political parties and politicians. Again, Croly told his readers
that Theodore Roosevelt was the political figure they should follow (later to
be replaced by Woodrow Wilson). Though I might have missed some references, the
only mention of a contemporary politician I found in the book is one to Senator
Bernie Sanders in the book’s first footnote; there’s no index entry for
Elizabeth Warren or AOC. Perhaps Fishkin and Forbath’s time horizon is longer
than Croly’s, so that referring to contemporary politicians would make their
book outdated just when its agenda might become politically salient.
Yet, though particular politicians
come and go, our political parties don’t – for structural reasons, of course.
So, when the time comes that their manifesto might play a part in a national
political conversation, it’s going to have to be worked into the platform of
some Democratic Party politicians. And, here the omission of attention to
structural matters is important. The tradition to which Fishkin and Forbath
appeal combined a substantive agenda – their democracy of inclusive opportunity
– with prescriptions for institutional reform. The latter are almost entirely
absent from The Anti-Oligarchy Constitution (no index entries for
“filibuster” or “Court-packing,” for example). But, I think, realizing a
contemporary anti-oligarchy Constitution will require institutional as well as
substantive reforms.
Croly’s manifesto had a
contemporary audience and was intended to have an impact in the relatively
short run. There’s another more famous Manifesto that sought to create an
audience that its authors thought might be buried beneath the surface, and
perhaps we should think of Fishkin and Forbath’s as attempting the same. Yet
it’s worth noting that the authors of that Manifesto spent the rest of
their lives engaged in (among other things) actively organizing the movement
they hoped to create.
Mark Tushnet is William Nelson Cromwell Professor of Law
emeritus, Harvard Law School. You can reach him by e-mail at mtushnet@law.harvard.edu.