Thursday, April 21, 2022

Inside or Outside the Modalities?

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).

David Pozen

The Anti-Oligarchy Constitution offers a remarkable reimagining of American legal history.  Throughout the bulk of the book’s 500-odd pages, Fishkin and Forbath limn the “democracy-of-opportunity tradition”—a tradition of righteous struggle for a broad and inclusive middle class and against extreme concentrations of economic and political power—in public law debates from the Founding forward.  By highlighting the ways in which claims about the Constitution and considerations of political economy were fused in these debates, Fishkin and Forbath manage to throw new light on many of the epochal confrontations that have shaped our constitutional order.  Students of progressive legal thought and American constitutional development will find in chapters one through eight a treasure trove of information and insight.

On either side of this historical narrative, Fishkin and Forbath advance a bold presentist thesis: that liberals and progressives today need not only remember but also revive the tradition of fighting oligarchy in constitutional terms.  Those who elect to “deemphasize the Constitution” in their demands for socioeconomic justice are ceding the legal and rhetorical high ground to conservatives and “pursuing a course of great peril.”  The better strategy, Fishkin and Forbath suggest, is to “constitutionalize” many of those demands—rearticulating them in a constitutional key, redirecting them from the judiciary to the political branches, and recasting them to focus less on things the government may not do and more on measures the government must adopt to secure a true democracy of opportunity.  Affordable health care for all shouldn’t just be defended in court as constitutionally permissible; it should be promoted in Congress as constitutionally required.

In what sense, exactly, would these arguments be constitutional arguments?  Fishkin and Forbath are a little hard to pin down on this point.  As scholars like Philip Bobbitt and Richard Fallon have detailed in well-known works, American constitutional practice is organized around a legal grammar that determines which sorts of arguments are considered legitimate inputs into constitutional decisionmaking and which are not.  There is endless debate around the margins, but most everyone agrees that the legitimate “modalities” of constitutional argument include appeals to the text and structure of the canonical document, appeals to the understandings of the framers and ratifiers, and appeals to judicial precedent, among others.  As Adam Samaha and I have explained, the modalities are complemented by a set of anti-modalities, or forms of argument that are commonly employed in nonconstitutional debates over public policy and political morality but that are seen as out of bounds in debates over constitutional law.  Another way of asking in what sense democracy-of-opportunity arguments would be constitutional arguments, then, is to ask how they would relate to the modalities and anti-modalities.

One possibility is that democracy-of-opportunity arguments would sidestep the modality/anti-modality framework altogether.  That framework only applies to claims about the Constitution’s legal meaning, to claims about, as Bobbitt puts it, what is “true from a constitutional point of view.”  Any number of other sorts of claims may contribute to effective constitutional advocacy at a remove, as by eliciting sympathy, stoking outrage, or calling attention to certain practical or normative variables.  Perhaps the democracy-of-opportunity tradition could aid progressive causes in this indirect manner—not as an interpretive input into the “truth” of the Constitution, but as a historical and moral prism through which to understand the stakes of a problem or as an extralegal basis to prefer one construction of ambiguous constitutional language over another.

 Fishkin and Forbath, however, appear to disavow this approach.  Or at least, they indicate that they wish to push past it.  They note that some might characterize contentions about the need for a broad middle class as “policy arguments” (the paradigmatic anti-modality) rather than constitutional arguments, or as “small-c” constitutional claims about especially important unwritten norms of governance rather than “capital-C” claims about the content of supreme law, or as “constitutive commitments” essential to our national identity rather than commitments to be found in the Constitution itself.  And they respond that all of these distinctions are “anachronistic.”  Prior generations of reformers working in the democracy-of-opportunity tradition understood themselves to be making arguments about what the Constitution requires as a matter of law, they contend, and we should do the same.

Another possibility is that democracy-of-opportunity arguments could be assimilated piecemeal into the modalities.  The boundary between modality and anti-modality is often blurry, which leaves space for creative efforts to fit considerations of political economy into modal categories.  In an originalist vein, progressives might, for example, try to mobilize recent research by Jonathan Gienapp and David Schwartz suggesting that the Constitution’s Preamble was not intended to be merely hortatory and hence affords an untapped source of interpretive guidance and national government power.  Or progressives might employ what Tara Leigh Grove calls “flexible textualism” to insist that the state attend to the functional preconditions for the realization of enumerated rights, as when the plaintiffs in San Antonio Independent School District v. Rodriguez argued (in Justice Powell’s words) that education “is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote.”  Or they might seek to build on the various strands of due process and equal protection doctrine, identified by Cary Franklin, that reflect concern for the plight of the financially disadvantaged.  Or they might enlist the structural modality, which looks to the institutional relationships that the Constitution establishes, to attack arrangements susceptible to capture or corruption.  “Most arguments about constitutional political economy,” according to Fishkin and Forbath, “have a structural core.”

The plausibility of these efforts will vary depending on the claim being made and the modality being used.  But in many cases, the attempted assimilation may require a fairly radical departure from controlling law.  The Preamble has long been held to have no legal effect.  The Rodriguez plaintiffs lost their case.  The class-sensitive doctrines cataloged by Franklin have largely given way to a jurisprudence of what she terms “class blindness.”  The structural modality is rarely applied outside separation-of-powers and federalism disputes.

Yet while Fishkin and Forbath would presumably be quick to concede that radical change to the constitutional status quo is needed, they don’t counsel pursuing that change in the typical find-a-modality fashion.  In a striking passage from chapter eight that evokes Alan Brinkley’s account in The End of Reform, they contrast the “affirmative constitutional arguments … about constitutional political economy” made by New Dealers in the 1930s with the “orientation and approach of the movement lawyers” who brought equal-protection-based welfare rights arguments into court in the 1960s; the implication is that the evolution of the former into the latter encapsulates the tragedy of progressive constitutionalism.  To keep faith with the democracy-of-opportunity tradition, they advise in another crucial passage, we must expand “our collective sense of what a constitutional argument is.” 

* * *

 All of which suggests that Fishkin and Forbath are best read as leveling a fundamental challenge to the grammar of constitutional argument, urging us to rethink not just the discrete maneuvers that are made within and around its rules but the substance of the rules themselves.  This project might involve refashioning the structural modality to address questions of structural deprivation and domination throughout society, along with more familiar questions about the allocation of authority within government.  It might involve relaxing the prohibition on arguments that draw directly on comprehensive normative commitments and thus converting that particular anti-modality into a modality (at least in part).  It might involve deflecting the ethical modality away from the idea of limited government—Bobbitt more or less conflates the two—and toward ideas such as material security and access to resources.  Fishkin and Forbath give little guidance on this front, so I can’t say with confidence what their ideal constitutional grammar would look like.  But whatever the details, it would look different from the grammar that prevails today.

I agree with virtually every word Fishkin and Forbath write about the imperative to dismantle oligarchy, deepen democracy, and enhance opportunity in the United States today.  I agree, further, with their implicit submission that the rhetorical and analytical constraints imposed by our constitutional orthodoxy carry serious costs.  As Samaha and I observe, the anti-modalities detach “mainstream constitutional debates from the central concerns of most people” and “leave constitutional law without the resources to reckon, seriously and explicitly, with some of the most significant dimensions of social problems.”

Where I remain unconvinced by Fishkin and Forbath is on the wisdom of framing a wider range of arguments as “constitutional” in response.  Samaha and I run through some of the general risks of such projects, from inflaming social conflict to constricting pathways for compromise to squandering the benefits of professional legal reason to threatening the coherence of constitutional interpretation as a discipline.  For all of these reasons and more, our article concludes with a call for narrowing the domain of constitutional law.

The fact that the United States has a rich democracy-of-opportunity tradition does not necessarily undermine that conclusion.  American legal history also contains diametrically opposed traditions of economic libertarianism and racialized social control, as well as partially overlapping traditions such as “common good” communitarianism, and it is not obvious which tradition’s contemporary champions would benefit most from constitutionalizing a larger swath of our civic life.  There is nothing inherently progressive about expanding “our collective sense of what a constitutional argument is.”  In a forthcoming book review, Jonathan Gould provides additional reasons to question the instrumental utility of framing issues of economic justice in constitutional terms and to suspect that, in many contexts, straightforward arguments from fairness and dignity may gain greater traction.

 Ultimately, as Gould notes, whether constitutionalizing more calls for progressive change will lead to more progressive policies is an empirical question.  It is, moreover, an exceedingly complex empirical question, dependent on myriad contingent factors.  The Anti-Oligarchy Constitution hypothesizes an optimistic answer but doesn’t make much analytic headway here.  And so, this monumental scholarly achievement brings us to the promised land of a genuinely humane and inclusive constitutional order, illuminating in brilliant detail the winding paths its partisans have traveled, without quite showing us how to enter the gates.

David Pozen is Vice Dean for Intellectual Life and Charles Keller Beekman Professor of Law at Columbia Law School. You can reach him by e-mail at <>.

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