Sunday, April 24, 2022

Constitutional Politics After Defeat: Fidelity to What?

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).

Ken Kersch

In Conservatives and the Constitution (Cambridge, 2019), I detailed the extent to which, long before the ascendence of legalist originalism, the postwar American conservative movement enlisted appeals to constitutional fidelity, redemption, and restoration in the public sphere to both motivate movement participants and unite diverse, and even antagonistic, streams of their incipient coalition into a potent political force.  Fishkin and Forbath’s impressively documented The Anti-Oligarchy Constitution demonstrates the extent to which, across the entire span of American political history until recently, this form of constitutional mobilization in the public sphere was constitutive, not just of conservativism, but of liberal-left progressivism as well.  It was pervasively constitutive of political struggles in the United States over questions of democracy and political power.

In a law review article several years ago, I noted that liberal and progressive appeals to constitutional fidelity, redemption, and restoration in the public sphere have, by now, for generations, been all but absent.  The prevailing assumption on the liberal-left -- articulated, for example, peremptorily in Nancy Pelosi’s flustered incredulity that anyone would raise constitutional objections to the then-pending Affordable Care Act -- is that, if the government wants to enact the policy, the Constitution authorizes and embraces it: the matter warrants no further discussion.  Fishkin and Forbath take this to be a very serious political, and constitutional, problem.

This is not to say, of course, that liberals and progressive have not been making constitutional arguments all along.  Liberal/progressive lawyers, judges, and legal scholars invoke and argue from the Constitution all the time on particular questions (as, indeed, they required to do in particular cases), or otherwise, in an ad hoc way, find useful. But these constitutional arguments are technical.  They are rarely integrated in any self-conscious way into broader, civically-unifying narratives concerning constitutional fidelity, restoration, or redemption. 

The trick that conservative originalism has played on most liberals/progressives has been to masquerade as “a matter of interpretation.” As such, it has been taken, not least by elite law professors and other legal elites, as an intervention in a series of constitutional theory debates initiated by early twentieth century progressives concerning judicial review centered around the problem of the inappropriately politicized judge.  Short of progressive arguments for either abandoning the constitutional project entirely in the name of democracy, or for eliminating or sharply curtailing “hard-form” judicial review, the Holy Grail of this newfangled constitutional theory was to advance a bullet-proof approach to interpretation that promised to (best) remove the politics from the process of constitutional review.  While they challenged the prevailing approaches, originalists like Raoul Berger, Robert Bork, Antonin Scalia were full-participants this highly professionalized elite academic project. As such, while not necessarily welcomed into liberal/progressive legal academia -- and, certainly, not initially, into discussions of constitutional law -- a path was cleared for Harvard or Yale-educated conservative scholars to leverage originalism as an entrée into this rarefied, remunerative, and high-status world.  Over time, their place within elite academia and elite constitutional theory has become institutionalized.

At the same time, it has been all too little emphasized that, as it was winning academic recognition as an established player in the debates concerning theories of neutral, apolitical judging, originalism was doing double-duty in the public sphere, where it was offered, not simply as a theory of legal interpretation concerning the role of a judge, but as a form of American nationalism.  As such, originalism was also -- and most significantly -- a vehicle for political motivation, mobilization, and identity-formation in the public sphere.  Originalism, sometimes by name, and sometimes under the guise of more general references to the Founders and their constitutional commitments and principles, was a star-spangled banner waved vigorously as part of a campaign for the election of Republicans who, it was belligerently reiterated -- in contrast to faithless liberals and progressives -- loved their country, and revered their revolutionary Founders.  Conservatives and the Constitution showed that the legal dimension of the campaign for originalism came after, and presupposed the success of, the conservative movement’s constitutional politics.  Public sphere mobilization and success, after all, is what get you elected to national office.  It is what gives you the power to appoint federal judges.  Once there, it is easy enough to translate your nationalistic political vision into the technical, professionalized doctrine used by judges to legally administer constitutional law.  

The Anti-Oligarchy Constitution is a rejoinder to a liberal-left that, as the authors’ see it, has long been operating on the complacent assumption that it is a sustainable strategy (or default) to isolate constitutional theory from popular constitutional politics.  In this, Fishkin and Forbath make a major contribution to a like-minded cohort of liberal-left constitutional scholars -- Bruce Ackerman, Jack Balkin, Akhil Amar, Larry Kramer, and others -- who have written against the legal academy’s grain by focusing on “the constitution outside the courts.” A major part of the remit of these scholars has been to marshal prominent tranches of constitutional argument in the public sphere across American history that has been lost to the legal academy during the heyday of academic debates about textual linguistics and hermeneutics, and an anachronistic Warren Era romance with the courts and the far-seeing, big-souled liberal/progressive judge as the polity’s preeminent constitutional sage and savior.  

One recurring axis of constitutional argument in the public sphere, at critical (potential) turning points, at least, has been candid debates about whether those championing political change should argue for constitutional repudiation on the one hand, or for constitutional redemption on the other.  The Antifederalists faced this question after ratification. Frederick Douglass faced it in reassessing his relationship with William Lloyd Garrison, and moving towards Rochester and Gerrit Smith.  As Aziz Rana has detailed, early twentieth century progressives (including Woodrow Wilson), argued the question extensively. 

But after they ascended to and consolidated their power in the New Deal, Anne Kornhauser has argued, modern liberals have not so much repudiated the Constitution as sidelined it as means of doing politics.  Work by my Boston College political science colleague David Hopkins (with Matt Grossman) suggests that that decision may have been rooted in the modern Democratic Party’s status as a largely untheorized coalition of diverse interests with a special aversion to grand narratives about “We the People,” and a post-1960s resistance to celebratory appeals to what they regard as a ‘problematic’ and profoundly compromised American heritage on issues of civic inclusion and equality.

The early twentieth century progressives had no such hesitation. They routinely tied their constitutional law to a robust constitutional politics that appealed to American history, heritage, and nationalism. This was especially true of those who sought political office like Theodore Roosevelt and Woodrow Wilson, and of their advisors Herbert Croly and Louis Brandeis, who invoked -- and thought with -- the Founders and Lincoln.  Fishkin and Forbath take up the mantle of these latter thinkers (Croly, especially), although they are keen to correct for the silences, and worse, of many (but not all) of them concerning race, and other ascriptive failings of civic inclusion.  

Croly was a political journalist.  Fishkin and Forbath are liberal/progressive legal academics, writing in the waning days of the liberal romance with the courts and, one hopes, of the heroic liberal judge as latter-day Hercules (Atlas may be more apt).  As such, Fishkin and Forbath are especially keen in The Anti-Oligarchy Constitution to underline that, to have any hope for success, progressive constitutionalists will need to move away from a preoccupation with hermeneutics and related questions of neutrality and judicial review, and towards the long public-sphere tradition in the U.S. of doing constitutional “political economy.”

The heyday of the constitutional theory literature preoccupied with the “matter of interpretation,” and the quest for the a-political, neutral judge, The Anti-Oligarchy Constitution implicitly suggests, is now over.  It was a luxury of a confident and increasingly complacent presumption of political power able to define, and impose, a constitutional regime.  The Anti-Oligarchy Constitution begins with the presumption that, for the time being, at least, the battle has already been lost:  a repeated refrain throughout the Fishkin-Forbath book is that many of the arguments the authors champion between its covers are likely -- and for many years to come -- to be shot down by the conservative Supreme Court.  As such, unlike a lot of other effort by scholars to rally their fellow progressives, The Anti-Oligarchy Constitution begins with a plunge into an ice-cold reality.  It is about setting a path forward after defeat.  In this long-term struggle, Fishkin and Forbath (rightly) insist, constitutional politics is prior to constitutional law.   

One thing I will say in Fishkin and Forbath’s favor vis-à-vis their conservative constitutional antagonists and opponents is that The Anti-Oligarchy Constitution provides a much richer and fuller account of the American national history and experience than anything written by legalist originalists.  The latter have an occupational tendency to treat almost the entirety of the U.S.’s  post-1789 history as a null-set, if not a long trail of errors, perfidies, and betrayals. For those (few) who seriously engage with that (magisterial, important) history at all, the focus remains highly circumscribed.  The debate is often about when the most significant abandonment or treachery took place (the Founding itself, John Marshall, the Civil War/Abraham Lincoln, the Progressive Era, The New Deal, the “radical egalitarianism” of the 1960s, etc.).  While a few originalists focus on the Fourteenth Amendment, the dirty secret of the originalist project on the Right is that, while boasting of its fidelity to 1787-1789, it sets itself against pretty much the entirety of the American national and constitutional experience that followed.

The Anti-Oligarchy Constitution provides a much more intellectually honest and historically inclusive account of the constitutional history and experience of the American nation.  Fishkin and Forbath do not argue that anti-oligarchic understandings of the American constitutional project are, or ever were, the only, or the only “correct,” reading of the Constitution.  They assume, first, that it is impossible to interpret the constitutional text without bringing to it outside political understandings and objectives (what old-school “matter of interpretation” constitutional theorists have reductively and misleadingly dubbed “extrinsic sources”).  Fishkin and Forbath assume, second, that political contestation concerning those outside political understandings and objectives have been constitutive of the American nation, during the Founding, immediately after the Founding, and ever since. 

With the publication of this important book, a big question remains: now that they have lost the power for maintain their regime defining constitutional understandings and precedents, and the power to forge new constitutional law and governing doctrines, are contemporary liberals/progressives likely to sign on to a constitutional project like the one proposed in The Anti-Oligarchy Constitution that is so extensively steeped in appeals to American constitutional history, heritage, and redemption -- to a project that leads with a vision of American nationalism, and even American patriotism?  Is a modern, “diverse and equitable” contemporary Liberal/Left (especially its often out-of-touch academic vanguard) capable of -- or even interested in -- getting right with their country? 

Proponents of a more identity-focused framework on the contemporary progressive left are the most likely to reject, if not outright scourge, would-be civically unifying appeals to an American heritage and history that, in their minds, are all but fatally compromised by the American national project.  Arguments steeped in a broad-based American tradition do not sit well with this part of the movement, and might be a non-starter as an acceptable framework for popular constitutional argument.  I am with the authors that a broadly-understood and more updated and inclusive political economy framework can work in this regard. Intense debates on these matters within progressive politics more generally -- most significantly, right now, within Black Political Thought -- show the strong headwinds those who place political economy front and center are likely to face.  So far as I can tell, they don’t seem much interested in talking about, or teaching students about, the Constitution either.

But Fishkin and Forbath are appealing to those who might be open to re-thinking these defaults, as the reality of the magnitude of the liberal-left’s political and constitutional defeat slowly seeps in.  Fishkin and Forbath’s The Anti-Oligarchy Constitution is a book of rare insight and breadth of vision -- and of old-fashioned democratic horse-sense.  It should be heralded as a major entrant into the debates forging the future of the American constitutional nation.

Ken Kersch is Professor of Political Science at Boston College and the the author, most recently, of American Political Thought: An Invitation (Polity, 2021). You can reach him by e-mail at

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