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 bross@law.virginia.edu.