Tuesday, June 21, 2022

The Future of Progressive Constitutionalism: A Response

Joseph Fishkin

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). 

Joseph Fishkin & William E. Forbath

When you work on a book project for as long as we worked on The Anti-Oligarchy Constitution, you never know exactly what sort of reception the project will get, or what the moment will be like when the book goes out into the world. We are grateful for the reviews and responses the book has received, both in the terrific symposium here on Balkinization, which we are now able to respond to after a bit of a delay, and elsewhere.

In part, the attention this book has received so far reflects luck. Good luck for us as authors, and terrible luck for the republic. As the conflict between the majority of our present Supreme Court and the majority of the American people sharpens and expands, and as that conflict spills out ever more explicitly into progressive politics (it has long been part of conservative politics), our book turns out to be more immediately timely than we thought when we began it, and in some ways more urgent.

Just last week in Texas, where the book was written, the state’s Republicans brought forth a party platform that melds right-wing constitutional political economy—the Lochnerian revival—with white nationalist and authoritarian “big lie” Trumpism. These ideas are on the move in constitutional politics both outside and inside the courts. Dizzyingly, at this moment in late June 2022, even as all sane Americans applaud Michael Luttig’s telling his party that his former clerk John Eastman’s constitutional arguments were nuts, the Supreme Court is poised to announce a series of blockbuster decisions in which formerly off-the-wall right-wing constitutional arguments become law. Our book offers progressives the building blocks for a robust, deeply considered, historically grounded response to these developments, a response that will have to be both political and legal.

We thought we were writing for the future. It turns out we were writing for the present. This leads to a lot of sharp responses and some wonderfully thought-provoking reviews! We don’t have space here to respond to everything in the terrific bunch of responses from Emily Zackin, David Pozen, Mark Tushnet, Kate Andrias, Ken Kersch, Gerald Torres, Bertrall Ross, and Mark Graber. But we appreciate the chance to respond to a few of the most interesting questions they raise.

One theme that runs through a couple of the responses, but finds its clearest expression in David Pozen’s, is a sort of skeptical tactical question: Is it really a good idea, he asks, for progressives to enlarge the domain of constitutional arguments to include questions that today liberals regard as non-constitutional questions of “policy”?

Up to that point in his thoughtful post, Pozen has us exactly right. We are, as he puts it, “leveling a fundamental challenge to the grammar of constitutional argument” as understood by present-day liberals. (It is that “grammar” that Pozen and Samaha explore in their own article: the implicit rules which say that what counts as constitutional argument and constitutional interpretation cannot contain anything that looks too much like a “policy argument”—which tends to ensure that constitutional arguments cannot address the distribution of wealth and social and economic power.)

This “grammar,” in our view, is a key part of the way liberals have framed and defended their “New Deal settlement.” The problem, as we argue in the book, is that there was no actual settlement: one side did not settle. Liberals in the mid-twentieth century shrank their vision of what counted as a constitutional argument. Their forbears from the nineteenth century onward through the New Deal had argued that the Constitution obliged Congress to enact measures that recast the nation’s social and economic order—social insurance, banking reform, broad safeguards for workers’ collective action, and more. But in the wake of the New Deal, liberals relegated these core constitutional arguments to “policy” status, outside the newly revised boundaries (the “grammar”) of what counts as a constitutional argument. However, their conservative and economic-libertarian opponents did not do the same. They continued to fight in politics and in the courts to implement their visions of constitutional political economy, and they have had considerable success.

Thus, the real choice today is not quite the one Pozen poses. Constitutional political economy arguments—a category that falls outside the present-day liberal grammar of constitutional argument—are central to our current constitutional politics and to the court-made constitutional law that is lurching to the right. But only one side is making the constitutional political economy arguments. Thus, progressives’ main choice today is largely whether to respond to conservative claims about constitutional political economy with progressive ones, or to try somehow to exhume the mid-twentieth century rules and “grammar” liberals devised for themselves that preclude those kinds of constitutional claims. 

They can respond to the Republicans’ and the Court’s constitutional buzzsaw as it shreds through progressive legislation and regulatory initiatives, by holding out the tattered banner of mid-twentieth-century legal liberalism: The Constitution has nothing to say about all these “policy” matters that conservatives believe it addresses. Really, liberals can go on insisting, the Constitution has nothing to say, one way or the other, about mounting political and economic inequality, nothing to say about the relationship between democracy and the unbridled corporate power that the right-wing constitutional outlook now dominant on the Supreme Court aims to unleash. Or instead, they can bring forward a rival progressive constitutional political economy, which offers affirmative arguments for the kinds of major democratic and egalitarian reforms progressives hope to enact and implement.

Emily Zackin and Ken Kersch, in their respective response pieces, each capture an important dimension of this story. Zackin shows that for us, the question of how progressives should understand what counts as a constitutional argument is inextricable from our larger institutional point: We need a much less court-centered constitutionalism. Our present court-centered constitutionalism has worked well for the right, since much of conservative constitutional political economy can be implemented through courts: “deconstructing the administrative state,” striking down labor laws and social insurance, widening the freedom of elite private actors to govern economic life. Progressive constitutional political economy tends to require legislative and administrative action. It is essential for progressives to revive legislative constitutionalism from its long slumber; this is a necessary condition for the revival of constitutional arguments in the democracy-of-opportunity tradition.

Zackin perceptively notes that the kinds of constitutional arguments we tackle in the book are not always quite so technical and doctrinally intricate as the court-made Constitution lawyers today know so well. They are “morally inflected and widely accessible.” This is important, because democratic constitutionalism doesn’t actually work if only elite lawyers with special training are capable of making cognizable claims on the Constitution.

Kersch situates our project in historical and political time. The story he tells is clear and arresting. Conservatives, out of power in the Warren Court era, began telling new stories in politics about fidelity to the Constitution. These stories were a way of “setting a path forward after defeat.” Today, it is progressives who must set a path forward after defeat. Our book is part of that project. The book is replete with constitutional arguments that present courts will roundly reject. But these arguments can lay the groundwork—through politics, as conservatives have done for half a century—for a repudiation of the court-made constitutional ideas that constrain our constitutional politics today. Among the many interesting aspects of Kersch’s story is a kind of hydraulic dynamic: The side broadly out of power in the courts is more likely to embrace constitutional argument outside the courts, while the party in power in the courts is more likely to defend the autonomy of the courts from politics.

One disagreement we have with Kersch is his suggestion at the end that “[p]roponents 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.” We believe this is off the mark, although of course there are people for whom it’s true. To put it simply: The main line of American movements for racial justice, of which Black Lives Matter and Reverend William Barber’s Third Reconstruction are recent iterations, has drawn deeply from the well of oppositional and redemptive readings of the democracy-of-opportunity tradition we chronicle. They, and we, still hope that the United States can and will make good on the “promissory note” of the Constitution. It is possible to misread these groups’ forceful rejection of flag-waving, reactionary, weaponized constitutional patriotism, as somehow anti-constitutional. From the Black abolitionists onward through W.E.B. Du Bois, Bayard Rustin, Pauli Murray, and Martin Luther and Coretta Scott King, radical Black leaders anchored demands for structural reform, major redistribution, and democratic empowerment on behalf of communities of color in the precepts and legacy of the democracy-of-opportunity tradition. Really what we have here is a disagreement about what constitutional patriotism is.

This question of the constitutional politics of Black Lives Matter (whose manifesto and programmatic outlook, as we discuss in the book, resembles and resonates with the constitutional tradition we trace) is a helpful lens through which to begin to think about another theme in several of the responses: the question of what movement is going to make progressive constitutional politics happen again. Gerald Torres foregrounds this question at the end of his post, noting that “concerted mobilization” is important to our story of how constitutional change happens, but that today’s social landscape might be different or less hospitable than that of some prior eras of progressive constitutional change. Mark Tushnet also asks, essentially, where is the social movement that will drive progressive constitutional change of the kind we contemplate in the book?

One answer is provided by Kate Andrias, whose response considers the role of the labor movement in doing the constitutional work—the rethinking, the reframing, the rhetoric—that are needed to translate anti-oligarchy constitutionalism into a set of compelling and simple popular arguments for our time. As Andrias notes, our book by itself does not finish this work, but only starts it; there is plenty to do.

And there are many signs of a labor revival, whose activist base and leadership include low-wage Black people and immigrants-of-color, along with teachers, skilled health workers, and gig workers of all races. And it already shows a capacity to build bridges to the BLM network. Hardly a sure thing, but that was true in the 1920s on the eve of the emergence of the radical industrial unions of the 1930s. So, like Andrias, we put some hope in this potentially quite broad-based, multiracial labor movement’s emergence. Institutionally, its champions today rightly envision different kinds of unions and forms of bargaining from older iterations of radical unionism. And this round, if it materializes, will be better than past labor movements as a carrier of an inclusive democratic constitutional political economy.

But our view is that while social movements are essential to constitutional politics, some scholars interested in popular constitutionalism may have overlearned the lessons of the 1960s and 70s, if they situate such movements as the central drivers of constitutional change. Instead—and here Tushnet’s response contains the answer to its own question—while social movements are indispensable, in the end, it is political parties that will do much of the work. As we argue at some length in the book—first when discussing the origins of American political parties, and then even more pointedly (and optimistically) in the book’s coda—constitutional change most often comes about through partisan politics. Movement activism may prod and reshape partisan politics, but it is crucial for those advocating constitutional change to capture a major political party, as the conservative legal movement ultimately captured the Republican party. Today, as we argue in the coda, there is a period of opportunity unusual in American history: the Democratic party is for once committed, to a first approximation, to all three core principles of the democracy-of-opportunity tradition. It has been freed from its lingering twentieth-century Dixiecrat core in a way that might make possible a new/old partisan constitutional politics in the democracy-of-opportunity tradition.

That part of the story—the centrality of partisan constitutional politics—is one that at many points has led us to make use of Mark Graber’s work. In his response in this forum, though, we were surprised and pleased to see Graber’s turn toward legal education. Although we do not explore this issue in the book, it is absolutely the case that in our present constitutional culture, with its peculiar grammar, the expertise one gains through law school helps immeasurably in establishing one’s credentials to make constitutional arguments. Perhaps that will be true to some degree in any constitutional culture with judicially enforced constitutional claims. But we are hopeful that bringing political and popular constitutional argument into the curriculum of lawyers-in-training, a goal we share with Graber, will help future law students and lawyers see some continuities where today they see a sharp break, as between the “small-c” and “large-C” Constitutions. We suggest in the book that the distinction between the two is itself an anachronism. It is a product of that same one-sided “New Deal settlement” that liberals loved, but that turned out not to be no settlement at all.

Unwinding the present distinction between “small-c” and “large-C” constitutionalism, and the various related distinctions that make up the artificial boundaries or “grammar” of twentieth-century liberal constitutional argument will have several salutary effects. Allowing constitutional argument to be more capacious and less clause-bound, and to take in more of constitutional political economy, will help legislators, as well as Americans who are not elite lawyers, see that they too can make constitutional arguments. Progressives will be able to move these arguments more freely among the venues of legislative debate, partisan politics, and judicial decision-making (perhaps, for the moment, usually in dissent) in the same way that conservatives and libertarians have productively moved their arguments among these same venues since they began their fight against the Warren Court.

One crucial set of venues for these arguments is, as Bertrall Ross argues in his response in this symposium, the states. From our perspective, not only state courts, but also state legislatures, and in many states, processes of direct democratic lawmaking bequeathed to us by the Progressives a century ago, can all be useful venues for turning the ideas of the democracy-of-opportunity tradition into operative constitutional law. To be sure, sometimes these efforts will be preempted or otherwise undermined by conservative federal courts, whose doctrines will aim to ensure (today, just as a century ago) that much of our present slide toward oligarchy remains out of the reach of state law, even as right-wing states gain new leverage to impose their visions of constitutional political economy on their populations. Because of this intricate interaction of federal and state authority and jurisdiction, with federal courts eager to police which forms of constitutional innovation the state laboratories may experiment with, we do not see a plausible future in which the democracy-of-opportunity tradition flourishes in the states alone. (Exactly the same point applies to progressive localities, many of which are engaged in bold forms of progressive constitutional policymaking—except where red states have opted to specifically prohibit blue localities from engaging in such experimentation.) In the end, you have to use what leverage you have, and state lawmaking can be a powerful and also highly visible form of constitutional politics. Sometimes state lawmaking or state constitution-amending can result in important changes to our political economy on the ground. Other times it can at least lay down a bright political marker and help the rest of the country see both the stakes and the arguments in a way that mere campaign speeches cannot.

As we write this response, the future of progressive constitutional politics is highly uncertain. But, the Supreme Court appears to be lurching so far to the right that—in just the hydraulic way Kersch suggests—the surprising effect may be to push progressives, at both the federal and state levels, toward forthrightly embracing progressive constitutional politics outside the courts. We hope so. It is past time. We hope that our book can contribute something to that turn. We are deeply grateful to all the participants in this symposium, and the clarity and open-mindedness with which they approached the task of imagining a different kind of constitutionalism from the one bequeathed to us by twentieth-century legal liberalism.

Joseph Fishkin, a regular contributor to Balkinization, is a law professor at UCLA.  William E. Forbath is a professor of law and history at the University of Texas, Austin; he holds the Lloyd M. Bentsen Chair and is the Associate Dean for Research at the law school.  More information about their new book can be found here.

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