Wednesday, April 27, 2022

The Constitution We Have and the Constitutions We Want

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). 

Bertrall L. Ross II
Extreme and rising economic inequality is an existential threat to the American constitutional republic.  And yet, most constitutional discourse has neglected the growing threat of inequality.   For policymakers, economic inequality usually falls within the domain of politics and legislative choices, divorced from the federal and state constitutions and their commands.  For constitutional law scholars, who tend to follow the lead of the United States Supreme Court, economic inequality is typically subordinated to other pressing forms of inequality rooted in the discriminatory treatment of suspect or quasi-suspect classes.
In their important and timely book, Joseph Fishkin and William Forbath join a nascent group of scholars seeking to center economic inequality as a critical matter in need of constitutional consideration and redress.  Drawing from an extensive historical account of U.S. constitutional discourse and policy from the founding moment to the present, the authors advance a comprehensive constitutional argument for addressing economic inequality, which they label the democracy of opportunity.   In this blog review, I focus on three core features of their argument, explaining why I agree with one, partially agree with another, and view the authors focus on the third as misplaced. 
The first aspect of Fishkin and Forbath’s core arguments that I agree with is the need to revive the relationship between politics and economics in American constitutional discourse.  I believe they are completely correct.  As the authors explain, economics has evolved in the popular mindset into a technocratic domain of expert policymakers, who make decisions separate from considerations of politics.  The Federal Reserve and its decisions over monetary policy serve as a prime example of the apparent separation of economics from politics.  Fishkin and Forbath rightly claim that such ostensibly technocratic decisions by expert and unelected bureaucrats are, in fact, critically guided by political choices.  Choices regarding inflation and employment targets, for example, are ultimately discretionary political decisions that elected actors influence through their selection of agency officials.  Joining those technocratic decisions are other economic decisions that are more clearly the product of political choices, including taxes, health care, corporate, and labor regulations—all subject to legislators’ control and for which the people are supposed to hold them accountable through elections. 
Two things follow if we once again link politics and economics.  First, if economic decisions are driven by political choices, then it must also be the case that economic inequality is the product of political choices. Second, since it is the federal and state constitutions that structures our politics and establish the conditions for political choices, economic inequality should be considered a matter of constitutional concern. 
Most Americans believe that our constitutions establish a representative democracy.  Over time the American constitutions have moved in a democratic direction by expanding the franchise, democratizing the basis of representation, and providing for the direct election of legislators, governors, and, for the most part, the U.S. president.  A central political economy theory suggests democracy should act as a check on economic inequality since the median voter in a state of economic inequality should demand, through their vote, redistributive policies (along with every voter poorer than them, equaling more than half the electorate).  Yet, in the United States increasing democracy has paradoxically been associated with rising economic inequality.  The median voter theory is certainly an oversimplified account of voter choices in a democracy, but the extent of the paradox in the United States suggests that something is awry with our democracy and the constitutions that structure it.    
That leads me to a second core feature of Fishkin and Forbath’s argument that I partially agree with.  The authors argue against the liberals’ fixation on courts as the central institutional actor for redressing inequality.  The authors’ argument is partially driven by a recognition that the egalitarian-promoting Warren Court is dead and will not be returning anytime soon.  The Court we have now and for the foreseeable future is deeply conservative and is not likely to embrace a democracy of opportunity constitutional project anytime soon.  The authors’ argument also seems to be motivated by the view that the courts are not the best institutions for securing the broad-based policy reform necessary to address the extreme inequality in the United States. 
Insofar as the authors’ focus is on what institutions are best positioned to directly address economic inequality, I agree that the courts should not be the primary answer.  However, if economic inequality is a product of political choices and such political choices are conditioned on the structure of our politics, then courts are more crucial to the democracy of opportunity project than the authors recognize.  Consider the recent failed congressional efforts to fundamentally reform the federal system of elections and state legislative resistance to structural political reform efforts such as independent redistricting commissions.  As those examples illustrate, elected actors often lack the will and incentives to significantly alter the structure and conditions of politics.  And if distortions in the structure and condition of politics have undermined democracy’s ability to check economic inequality, then some other institution will need to step in.  Otherwise, legislatures will be as unhelpful as the current Supreme Court in advancing the democracy of opportunity. 
But as several election law scholars might note, our current Supreme Court is just as unlikely to intervene to address structural political sources of economic inequality as it would be to directly advance a democracy of opportunity project.  That leads me to the authors’ third core argument, which I believe is misplaced in its focus. 
After properly leading us away from the liberal fixation on courts as the central institutional source of redress for inequality, the authors, without questions, follow the lead of liberals in their nearly exclusive focus on the federal constitution as the wellspring for progressive reform.  Fishkin and Forbath do recognize that some of the most important redistributive efforts in American history have occurred in states, but progressive reform at the federal level nonetheless remains their center of attention. To the extent we seek structural reform that shifts political and economic power from the wealthy oligarchy to the people, our focus should not be on the federal constitution, but rather the state constitutions.  Throughout this post, I have intentionally referred to American constitutions, in the plural, not to one Constitution, because of my view that we need to shift the emphasis from the singular federal constitution to the multiple state constitutions as the situs for the redistribution of political and economic power.  State constitutions are the democratic constitutions that progressives like Fishkin and Forbath want—while the federal constitution is the oligarchic constitution that we have.   
The excesses of democracy in the states famously served as one of the primary motivations for the framers of the new U.S. Constitution in 1787.  And through that Constitution, the Framers sought to secure predominant political power for the so-called natural aristocracy, which was principally comprised of the wealthy elite.  The Framers did so not only by limiting the power of the people to directly elect their President and Senators, but also by adding a large, implicit property qualification for those seeking office in the more democratic House of Representatives.  The failure of the Framers to come to an agreement on property qualifications for voters did not deter them from structuring the House of Representatives in a way that would favor control by the wealthy elite.  By constructing a small House of Representatives with large electoral districts, the Framers essentially guaranteed that only those with wealth and reputation would have the means and popular recognition to win elections to the House.     
The resulting composition of the House broke with a key foundational principle of republican government, which requires that laws regulate the governors and the governed alike.  Implicit within that principle is the idea that representatives share essential characteristics with those they represent such that the two are impacted equivalently by the laws made.  That representative symmetry should check oppressive and self-aggrandizing laws, as both the representatives and the people would incur the same costs and benefits from any laws that are passed.  The check on oppressive and self-aggrandizing laws is diluted and even rendered ineffective when the governors are fundamentally different from the governed.  Such is the case in the United States Congress where the governors are mostly or entirely comprised of the wealthy elite and the governed are predominantly middle class or poor.  That representative asymmetry opens the door to the passage of laws that favor the wealthy elite at the expense of the poor and middle class, thereby exacerbating economic inequality.  And with the large and growing implicit property qualification to run for federal office at all levels, the recourse of electoral accountability has been historically constrained by the fact that it is the wealthy, those connected to the wealthy, or those who will soon be wealthy that are the only viable candidates for office.     
The argument that the Constitution created an oligarchic federal government is not new.  It was not only advanced by Anti-federalists who sometimes made exaggerated and self-interested claims against the Constitution during the ratification debate, but also by delegates in nineteenth and twentieth century state constitutional conventions who had nothing to gain from their criticisms of the U.S. Constitution.  Delegates described the U.S. Constitution as anti-republican because of how it contributed to the maldistribution of political and economic power in ways that favored the wealthy elite.  For those delegates, it was not the U.S. Constitution but the Declaration of Independence, with its assertion of equality and its demand that government be derived from the consent of the governed, that served as the inspiration for political and economic redistributive reforms subsequently embedded in state constitutions.
Fishkin and Forbath acknowledge some of the Framers’ oligarchic motivations, but they suggest that the ratification debates shifted the interpretive gloss of the Constitution in a more egalitarian direction.  That may or may not be the case, but the structure of government remains clear, with the result being that the median income of congressmembers far exceeds that of the people they represent.  Redistributive reform is not necessarily an impossibility in a federal government composed in this way.  In the past, intense economic downturns such as the Great Depression or moral outrage about poverty in the 1960s have provided the necessary electoral pressure for such change.  But the needed redistributive reform remains unlikely in normal circumstances, as the structure of the federal government limits the potential for democracy to serve as a check on economic inequality. 
Hope still, however, remains for redistributive reform in places where progressives rarely look: the states.  Unlike the federal constitution, state constitutions were not structured to empower the wealthy elite.  In fact, throughout American history, states through their constitutions were the chief democratic innovators.  They were the first to expand suffrage, eliminate property qualifications for officeholders, and democratize the bases of representation.  Many of the states also made it a point to preserve smaller and locally based districts in which members of the electoral community were more likely to know each other, thereby reducing the wealth and reputation necessary to win seats in the state legislatures.  Accounts from nineteenth and twentieth century state conventions, in which members of the wealthy elite disparaged state legislatures for being comprised of too many people from the poor and middling classes, provides anecdotal evidence that the states achieved greater economic class diversity in their legislative houses.  That greater economic diversity moves the state legislatures closer to the representative symmetry necessary for democracy to function as an effective check on economic inequality. 
Just because the structurally anti-oligarchic state constitutions could serve as primary sources for redistributive reform does not mean that they have in the past or will in the future.  For states to serve as engines for redistributive reform, progressives should follow a three-step plan.  At the first step, progressive should focus on advancing democratic reforms in the states that implement the state constitutional requirements of free elections, fair and equal representation of the people, and other broad requirements of democratic governance.  That first step will require federal courts to get out of the way and defer to states and state courts’ determinations regarding the permissibility of democratic reform efforts under state constitutions.  Once some semblance of representative symmetry in state legislatures is achieved, at the second step progressives should focus on shifting economic allocative power from the federal government to the states so that states can serve as the situs for redistribution.  That means providing states with more control over the allocation of federal money or reducing the federal exercise of taxing power so that states can exercise more taxing power to better achieve redistributive goals.  And finally, at the third step, progressives should shift most of their lobbying energy to the states to advance broad based redistributive reform regarding taxes, health care, corporate and labor regulation.
The allure of federal reform is powerful, and the focus of Fishkin and Forbath’s impressive book is understandable.  However, progressive energy would be better targeted at the states where democracy of opportunity can be advanced by the democratic constitutions that we want (and already have, to some degree) rather than being impeded by an oligarchic constitution that we have.         

Bertrall L. Ross II is Justice Thurgood Marshall Distinguished Professor of Law
University of Virginia Law School. You can reach him by e-mail at 

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