Tuesday, April 26, 2022

Common Sense Constitutionalism

Guest Blogger

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).

Gerald Torres

Two books sit on my desk. Each takes the same narrative trope: recovery. There exists a tradition that has been lost. Suppose we could just recover our footing, our memory, our allegiance to a better, more authentic past. In that case, we could reclaim or, more accurately, achieve a constitutional arrangement worthy of our national experiment. We could, as a people, embrace the co-constitutive nature of our governing code. The path back to the garden is as fraught with danger as the profound as the snake that led to our expulsion, but the garden exists not just in memory but in landmarks; faint though some of them are, it is our duty to map them.

I expected the books to argue, but the conversation was more polite than imagined. Despite their proximity, they did not spontaneously combust. At the level of value, if not at the level of politics, each had something to say to the other. "I will argue that the best of our traditions is that courts should defer to public determination… so long as the public authority acts rationally and with a view to legitimate public purposes: the ends of peace, justice, and abundance."[1] I suspect that Professors Fishkin and Forbath would agree with that construction and the claim that a commitment to peace, justice, and abundance is precisely the aim of the constitutional politics they advance.

Fishkin and Forbath describe constitutional politics as one of democratic opportunity understood through the lens of political economy. This requires three fundamental commitments, first, opposition to mutually reinforcing concentrations of wealth and political power. Second is a belief that democratic politics are possible only if it is premised on a commitment to shared abundance. They would phrase it more modestly as an "objective level of material comfort and security." Finally, they commit to equality measured by access to the "full range of opportunities the nation offers."[2] The equality of inclusion, they maintain is critical to the constitutional politics they outline. Because this is a project of recovery, none of these commitments that make up a "democracy of opportunity" are new. They are, instead, statements about the historical moments that illuminated a popular (and elite) understanding of what the constitution both permitted and required.

The Anti-Oligarchy Constitution reconstructs the history of constitutional politics and demonstrates the pernicious impact of yielding a monopoly on constitutional meaning to any institution. The defeat of the progressive constitutional understanding is reflected in the surrender of constitutional meaning to the courts. Judicializing politics distorted what was at stake and what was possible. As crucial as the limitation they propose on courts second-guessing the legislative branches, the more profound question arises in interrogating the relationship between legislative power and legislative duty. The sources of the government's legislative power figure heavily in their analysis. They argue against the crabbed reading that has dominated arguments in the constitutional politics of the modern era. They read the new birth of freedom that framed the immediate post-civil war period as a re-inscription of the roots of democratic constitutionalism in which they ground their argument.[3] The power/duty line is important for them. It remains a troubling question perhaps raised most recently in the case of McGirt v. Oklahoma.[4]

This question has had its most aggressive expression in some of the litigation around climate change and resource use.[5] In many ways, those cases really ask: What is government for? That is profoundly a question of constitutional politics. It is precisely the kind of question that Fishkin and Forbath raise repeatedly and demonstrate that it is for the people to say. Significantly, they demonstrate that it was the question that animated constitutional politics from the beginning. It now has its expression across substantive domains. Lynn Stout resurrected the argument in the domain of corporate law in The Shareholder Value Myth: How Putting Shareholders First Harms Investors, Corporations, and the Public[6] Omarova and Hockett have done this in the area of finance.[7] Fishkin and Forbath catalog the other areas.

These demonstrations triggered the reaction that has delivered us to a period where discussion of the common good is reduced to an aggregate of utility functions at best. What Fishkin and Forbath do most forcefully is to show how the enshrinement of individual rights is used to reduce the capacity of the government to act in defense of the basic needs of the individual. They are not enemies of rights talk, but they are clear about how it obscures, and in some cases declares out of bounds, actions by the government that are critical to individual flourishing. The irony hangs like a dull fog that the historical detail they assemble helps us see through.

The importance of concerted mobilization to promote durable legal change is an important element of their analysis as is their incisive treatment of class and race. But the social landscape in which some of the most important advances were made is radically different today. The new terrain means that the structure and expression of constitutional politics will be different as well. I want to hear more about that.

Gerald Torres is Professor of Environmental Justice, Yale School of the Environment and Professor of Law, Yale Law School. You can reach him by e-mail at

[1] Adrian Vermeule, Common Good Constitutionalism 15 (2022).

[2] Lani Guinier discussed this idea in The Tyranny of the Meritocracy (2016).

[3] Charles Lund Black, A New Birth of Freedom: Human Rights Named and Unnamed. (1997).

[4] McGirt v. Oklahoma, 591 U.S. ___ (2020), which is commonly thought of as a significant win for Native people and a ringing endorsement of the lawfulness of treaty obligations. What is sometimes lost in the celebration was the reinforcement by Justice Gorsuch of the power of Congress to act under its plenary authority. See also, Missouri v. Holland, 252 U.S. 416 (1920).

[5] “Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” Judge Aiken, Juliana v. U.S.; Gerald Torres, The Public Trust: The Law’s DNA, 4 Wake Forest J. of Law & Policy 281 (2014) (with Nate Bellinger).

[6] (Berrett Keohler Publications, 2012)

[7] Robert Hockett & Saule Omarova, Private Wealth and Public Goods: A Case for a National Investment Authority, 43 Journal of Corporation Law 437 (2018) 

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