Balkinization: Constitutional Meanings

Constitutional Meanings

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).

Emily Zackin

Those who see no reasonable prospect of winning in the Supreme Court tend to discover importance of judicial restraint. Legal scholars and jurists who find themselves in this situation often generate arguments about how little the Constitution has to say on the important questions of the day. Recall Justice Holmes’s insistence in his dissent in Lochner that “a constitution is not intended to embody a particular economic theory.” Formed in the crucible of the Lochner Era, most Progressives asserted that courts should defer to electoral majorities and that questions of economic policy should be left to legislatures. When the tides turned, leaving the left in control of the Supreme Court, the right began thinking along similar lines. Unelected Justices should not wade into policymaking, they insisted, and litigants should stop looking to the Constitution to solve all the social problems that troubled them. Democracy required that courts cede control over policy to elected legislatures. This pattern makes perfect sense. If you keep losing battle after constitutional battle, it is only a matter of time before you begin to hope that the battlefield will shrink.

One of the things that is so audacious and interesting about The Anti-Oligarchy Constitution is that it takes the opposite approach. In a moment when things look very bleak for progressive control of the Supreme Court, Fishkin and Forbath argue not that we ought to de-constitutionalize the important questions of our time, but that we should expand our notion of constitutionalism to include many more of them. The left, they declare, has been far too diffident, amnesiac even, on questions of constitutional meaning and scope. It has forgotten that distributional questions are inherently constitutional and has consequently allowed its notion of constitutionalism to wither. But, Fishkin and Forbath explain, this is a relatively recent phenomenon, dating only to the last half, perhaps even the last quarter, of the twentieth century. Before that, economic opportunity weas widely understood as a constitutional issue. In a formidable feat of scholarship, they trace a long U.S. tradition of political argument centered on the insistence that oligarchy was unconstitutional and chart a long series of claims about governments’ affirmative constitutional duties to promote economic and political equality. This is sizable achievement and an important work of legal history.

The Anti-Oligarchy Constitution is not merely a tour through our constitutional past, however, but also an unequivocal call for those on the left to reclaim the idea of a constitutional political economy—to once again insist that economic opportunity is a democratic necessity and a constitutional guarantee. One question that this feature of the book raises is why. Why should today’s left return to older ways of thinking and talking about the relationship between the nation’s Constitution and its political economy?
We might understand Fishkin and Forbath to be arguing that constitutional arguments about political economy will be of instrumental value, that constitutional rhetoric will help the left realize its economic vision. Of course, it is hard to know whether that is true. As David Pozen notes in his contribution to this symposium, whether constitutionalizing claims for economic justice will actually facilitate the enactment of progressive policies is “an exceedingly complex empirical question, dependent on myriad contingent factors.” I certainly do not claim any insight into whether reanimating an old vision of constitutional political economy will turn the tide for progressive politics in the present, but Fishkin and Forbath offer at least one reason to think it might be strategically savvy for the left to advance a reading of the Constitution that includes economic guarantees: the right has been doing it all along. This strikes me as an important insight.

Advocates of social and economic rights are often asked to justify their recourse to constitutional politics. “Aren’t distributional questions more properly understood as policy questions and left to the elected branches?” One answer that emerges from the long history Fishkin and Forbath trace is that conservatives have always understood the Constitution as speaking to these economic issues. Indeed, they have consistently advanced a reading of the Constitution that forbids redistributive politics and gives pride of place to individual rights against government interreference with citizens’ private economic lives. Absent a convincing rejoinder to this reading, the Constitution can only be a resource for conservative politics, can only help to check redistributive and anti-oligarchic projects. In answering this conservative understanding of the Constitution with an opposing one, the left would not actually be constitutionalizing distributional questions; it would simply be offering a different answer to questions that have long been understood as constitutional. We might imagine that it is strategically wiser to develop a progressive reading of the Constitution’s stance on political economy than to leave the conservative emphasis on property rights and laissez-faire liberalism largely uncontested.

But, I am not sure that Fishkin and Forbath are primarily making an instrumental case for adopting a particular political strategy. I do not think they are claiming that progressive constitutional rhetoric will win the day, either in court or at the ballot box. In other words, I suspect it is not quite right to read them as advancing an argument about how the left ought to frame its calls for redistributive policies. Rather than a proposal about framing, I understand this book to argue that even when we don’t talk about economic opportunity and justice in a constitutional register, these issues are nonetheless, inevitably, constitutional.

Central to this claim, I think, lies a particular understanding of what a constitution is. When Fishkin and Forbath argue that questions about our political economy are constitutional questions, I do not think they are talking about the U.S. Constitution only as a legal document, interpreted and enforced by courts. Instead, they are using a broader definition of the word “constitution,” one in which the constitution refers to the foundations of our political system, the institutions, norms, and processes that structure our political life. Some might describe this concept as a small-c constitution, in line with Aristotle’s notion of a constitution as the basic architecture and habits of a polity. I read Fishkin and Forbath to be saying that the level of inclusiveness, the presence or absence of broad middle class, and the limits (or lack thereof) on oligarchy are constitutive of a political system. Not that left-leaning policies are normatively superior to right-leaning ones (this they take for granted), but that the structure of our polity (the relationship between government and its subjects, the way public power is created and then reigned in) is determined by the choices we make about our political economy—just as it is determined by choices about whether to have a bicameral legislature or an electoral college. When we try to erect new economic structures or demolish old ones, we are therefore doing constitutional work.

To be sure, this notion of a small-c constitution is fuzzy at the margins. It is probably impossible to draw bright lines between those features of our politics that don’t seem constitutive of a political system and the constitutional features (that do). But to acknowledge that small choices about economic regulation and redistribution shade into big, constitutional questions is not to say that the concept of a small-c constitution has no boundaries or no coherence. In fact, this view of constitutionalism is in line with a range of scholarship that reveals our present-day understanding of the Constitution as a fixed legal document to be interpreted by experts and enforced by courts as, itself, contingent—a product of particular political battles at particular times.

One important move that Fishkin and Forbath make in this vein is to clarify that when they assert that questions of political economy are inherently constitutional, they are not claiming that the Court ought to decide these questions. On the contrary, many of their examples of constitutional argument focus on legislatures and statutes. This is not an argument against the involvement of courts in questions of constitutional political economy, but a de-centering of courts as the primary engines of constitutional interpretation and enforcement.

Part of this project of de-centering courts in our vision of constitutionalism is a rejection of the notion that law is, or ought to be, a technocratic endeavor. In this, Fishkin and Forbath adopt an approach to constitutional doctrine that owes a great deal to legal realism and it’s descendent, critical legal studies. They call attention to the political influences on and incoherencies of judicial doctrine and reject the notion that determinations about constitutional meaning must be made by experts, capable of discerning abstruse truths. Instead of a technical exercise with correct answers, they portray constitutional questions as morally inflected and widely accessible. (At times, they seem to suggest similar things about economic choices.) In fact, one of the recurrent themes throughout the book is its rejection of the notion that constitutional questions are beyond the reach of non-experts. When Fishkin and Forbath describe distributional questions as “constitutional,” they are simultaneously characterizing them as the fundamental structures of our political life and as matters over which a broad-based public must exert control. This, too, is counter-intuitive and therefore very useful.

Constitutions are often associated with entrenchment. To call something constitutional is usually to imply that it is beyond our reach, neither subject to majoritarian pressures nor up for debate. Policies, by contrast, change in response to majoritarian preferences. But the long and nuanced historical treatment of constitutional political economy that Fishkin and Forbath offer serves as a powerful corrective to this false dichotomy. It demonstrates that the basic structures of our democracy have changed over time and in response to democratic pressures and partisan politics. Those changes have sometimes occurred through amendments to the Constitution’s text, like the Reconstruction amendments, but they have more often been the result of policy regimes that ushered in new kinds of economic governance.

One of the important contributions of this book, then, is that it redirects constitutional theory away from trying to shore up the fiction that policy choices and constitutional commitments are distinct categories. It brings home the point that, Americans have long fought over the relationship between economic life and public power, and these debates were at once about constitutional structures and public policies. With this in mind, I think it is a bit clearer why Fishkin and Forbath didn’t develop an argument about restricting the scope of constitutional politics even as the contemporary left is losing so many constitutional battles. We don’t really get to make the choice. A vision of a meaningful democracy is both a set of policies and constitutional interpretations. The left is fighting on constitutional ground whether we know it or not.

Emily Zackin is Associate Professor of Political Science at Johns Hopkins University. You can reach her by e-mail at ezackin1@jhu.edu.

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