Wednesday, May 18, 2022

The People's Constitution

Mark Graber

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). 

The practice-ready constitutional law final consists of the following question.  A potential client walks into your office with a potential case that raises constitutional issues other than the dormant commerce clause or preemption.  Neither you nor your firm have any experience litigating such matters.  Accepting this case is an invitation to malpractice.  Take a look at the rolodex in front of you.  For each set of facts below, which public interest law firm do you suggest that person contact?

The practice-ready constitutional law final highlights how few students who attend institutions below Yale in the law school pecking order will practice constitutional law.  Preemption and dormant commerce clause have some cache in ordinary practice.  Would-be public defenders and prosecutors need to know constitutional criminal procedure, less for courtroom tactics than as aids to bargaining in the shadow of constitutional law.  The exciting stuff of constitutional law, the constitutionality of health care, gun control, bans on abortion, and the like, tend to be limited to judges and a few lawyers who have very specialized practices. The notion that after twenty-years of practice an ordinarily lawyer will remember the precise five-part test for the spending clause is laughable.

The disutility of constitutional law for the vast majority of law students raises questions about the point of teaching constitutional law as a mandatory, often two semester course.  The point of devoting a good deal of attention to the constitutional law of state action in law school is unclear, given that all most practicing lawyers need to know is that there is something called the state action doctrine.  The point of teaching state action in undergraduate pre-law courses is obscure, given many students will not become lawyers and those who become lawyers will  endure a few classes on state action from a law professor who probably knows more law than a PhD.

Three new books promise a new approach to a practice-ready constitutional law class.  The first, Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy is the subject of this symposium.  The second, Daniel Carpenter, Democracy by Petition: Popular Politics in Transformation, 1790-1870 was the subject of a previous Balkinization symposium (mea culpa for not having the time to finish my review).  The third is Jared A. Goldstein’s, Real Americans: National Identity, Violence, and the Constitution.  The three books are united by commitments to exploring popular constitutionalism as opposed to the judicial constitutionalism.  Popular constitutionalism is unsurprisingly of far more relevance to more people than judicial constitutional and, perhaps surprisingly, of far more relevance to most lawyers than judicial constitutionalism.  A constitutional law course could do worse than assigning these three books or the sources these books rely on.  Each is a marvelous work of scholarship that we and our students ought to know, whether we are law professors who teach law students, or university professors who teach undergraduates and graduate students.

Professor Joseph Fishkin of UCLA Law School and Professor William Forbath of Texas Law School devote their energies to documenting the Anti-Oligarchy Constitution or Equal Opportunity Constitution that has been or, perhaps had been, a mainstay of American constitutionalism for two hundred years.  The plot details can be found in previous reviews on Balkinization or my previous review.  This constitution barely makes an appearance in the U.S. Reports.  A judge who reads only those reports might conclude, as Richard Posner infamously did, that the Constitution of the United States is “a charter of negative liberties.”  A glance at constitutional argument in Congress, on the campaign trail, in newspapers, and the foundational documents of many political movements in the United States convinces otherwise.  The dominant form of constitutional argument in the United States, Fishkin and Forbath, demonstrate is rooted in political economy.  Constitutional argument outside of the courts discusses regimes not legal minutia, how the economic, political and other social systems established, maintained, and assumed by the Constitution fit together to create a mutually supporting system. American constitutional is saturated with positive constitutional rights, except when judges speak.  Aristotelian constitutionalism lives in the United States, except when we turn our eyes to the courtroom.

Professor Daniel Carpenter details the remarkable vitality of the constitution outside of the court throughout most of the nineteenth century.  Ordinary Americans did not leave governing to Congress and the Constitution to the courts.  Democracy and Petition documents the remarkable degree to which persons through North America used petitions to make their democratic and constitutional voices heard.  African-Americans made their voices heard through petitions as did women.  Non-citizens, most notably Native Americans, as freely used the petition to express their views on the issues of the day.  When Jacksonians in Congress adopted the gag rule, the automatic tabling of petitions calling for abolition or other anti-slavery policies, they were cutting off the most important form of political participation in the United States, and not merely engaged in a largely symbolic endeavor.  A reading of the U.S. Reports before the Civil War might suggest that contracts clause and dormant commerce clause issues dominated the constitutional agenda of Jacksonian America.  The petitioners Carpenter catalogues and analyzes provide the better picture of all the constitutional issues that mattered and the constitutional issues that mattered to most people.

Professor Jared Goldstein of Roger Williams University School of Law presents the darker side of popular constitutionalism.  Real Americans documents the history of the White Constitution, the Christian Constitution, the Nativist Constitution, and other constitutions championed by those, in the words of an old Mad Magazine description of superpatriots, “Love America, while hating most Americans.”  Goldstein demonstrates that just as the best American values have roots in the Constitution, so do the worst.  The Klan professed to be as committed to the Constitution of the United States as did Martin Luther King.  Both constitutions were aspirational.  Both had deep roots in American history.  Readers should be disturbed by how normal the analysis is.  Bigots do take great latitude with history, but so do the proponents of such mainstream notions as same-sex marriage and gun rights. 

The Constitution of the United States, these three books teach, has been forged by political movements.  Many movements, most notably those chronicled by Fishkin, Forbath, and Carpenter, ought to be celebrated.  Others, most notably those chronicled by Goldstein, ought to be condemned.  Constitutional law may nevertheless not be of much help in explaining why the good movements ought to be emulated and the bad movements ought to be scorned.  The White Native’s Constitution is as much rooted in the American past as the Equal Opportunity Constitution.  As numerous wags have noted, tarring, feathering, and running political outsiders out of town is as American as free speech and apple pie.  These three books together teach the same lesson.  The Equal Opportunity Constitution has been successful only when proponents of that regime have been more successful in politics than proponents of rival versions of the American regime.  Law may be the calling of angels and politics the tool of the devil, at least if too much legal analysis is to be believed, but lawyers who think they can avoid politics do their causes a gross disservice.

The case for studying popular constitutionalism outside of the law schools is obvious.  The constitutions Fishkin, Forbath, Carpenter, and Goldstein detail are the constitutions that matter to most people at most times.  The anti-Oligarchy Constitution inspired the Republican Party during the mid-nineteenth century and the Populist Party during the turn of the twentieth century.  Through the petition movements, we can see women, African-Americans, and Native-Americans as constitutional actors, not simply as people who were constitutionally acted upon.  The Constitution of the Ku Klux Klan has resonated for many Americans for the last hundred and fifty years, as has the related Constitution of Native-born Americans who would scorn to be confused for Native Americans.  Limiting courses in American Constitutionalism to what the Supreme Court has had to say misses a high percentage of constitutional history.

The case for studying popular constitutionalism in law school is almost as obvious.  Few lawyers will argue major constitutional cases before any kind of court.  Lawyers do participate actively in the discussions over popular constitutional arguments that take place in the White House, in Congress, in state legislatures, during protest marches, and in the newspapers.  Constitutions create and maintain regimes.  Lawyers as well as everyone else need to know how the different pieces fit together.  Judicial supremacy, for example, may be a wonderful (or not so wonderful) practice, but talk of judicial supremacy makes little sense in a regime where most people do not have the economic resources to bring their arguments before judges.

Law students need to learn how to make arguments that mobilize some of their fellow citizens and persuade others.  “You’re the lawyer,” they are going to be told at a P.T.A. meeting or meeting of the local neighborhood association.  The answer to the related query may not be the legal rules I will be testing on the final exams I am writing in the next few days, but in the materials lovingly assembled by Professors Fishkin, Forbath, Carpenter, and Goldstein.

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