Thursday, January 19, 2023

Giving Up on the Supreme Court is the Beginning, Not the End, of Progressive Constitutional Theory in the 21st Century

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Joseph Fishkin & William E. Forbath
Say you are a progressive lawyer or law student thinking about becoming an academic.  Maybe you want to work in constitutional law.   What kind of work would you do, with the Supreme Court lurching further and further right?   Criticize, deconstruct, and lament each new lurch?  Write arguments for a liberal court in some parallel universe or imagined future?  Contemplating a career of this is not exactly an energizing prospect.
Meanwhile in the political arena, constitutional questions are at the center of the most important conflicts of our time.  Liberals and progressives are fighting for fundamental reforms on many fronts; literally all of them are vulnerable to constitutional attack from this right-wing Court.  How can it be that a newcomer to constitutional scholarship cannot look forward to helping imagine and build the constitutional foundations for these reforms?  How can the avenues ahead for liberal and progressive constitutional scholarship possibly be so narrow?  The answer is that they are not.  But to see the breadth of what is possible today in progressive constitutional argument, the first step is to fall fully out of love with the Supreme Court of the twentieth-century liberal imagination.In the long arc of constitutional history, the Supreme Court and the federal judiciary have been a stubbornly reactionary force in American law and politics.  Thus, for most of the nation’s past, reform-minded Americans saw the courts as hostile political actors and their constitutional output as primarily the work of conservative politicians in robes.  Generations of reformers—agrarian tribunes and labor advocates, abolitionists and women’s rights champions, Populists, Progressives and New Dealers—made their constitutional claims in politics, rather than in legal filings; they strove to implement their constitutional vision mainly through legislatures and executives, not courts. However, in the mid-twentieth century, liberals learned to love the federal judiciary and the Supreme Court.  In the face of unyielding white Southern resistance to school desegregation, mid-20th-century liberals became passionate advocates of the view that the Supreme Court, and only the Court, is in charge of interpreting the Constitution.  They learned to think of it as a venue for serious debate and deliberation about questions of constitutional principle.
This sea change had deep implications for constitutional scholarship and theory.  For the rest of the twentieth century—even as the actual Supreme Court pursued its long rightward path due to the politics of judicial appointments—it seemed possible for modern constitutional theorists (of all political stripes, but here we’re especially interested in liberals and progressives) to hold in their minds an idealized Supreme Court that could function as an implicit audience for any sound constitutional argument.  Sure, the real-life Court was conservative.  But at its center were various justices who seemed to be struggling with arguments from all sides—not all the time, but often enough to matter.
What was afoot here was subtler than legal academics writing directly for the Court (although of course there was plenty of that).  On a deeper level, for generations of scholars, it seemed that an entirely plausible way to go about one’s intellectual life was to think about constitutional questions mainly from the perspective of an idealized judge. Obviously, we live in an imperfect world; real judges are not Hercules.  But that fact may have made this court-centered way of thinking about constitutional theory even more alluring.  Judging is hard intellectual work, and it has some appealing affinities with the (in other respects rather different) work of writing articles about constitutional theory.  When writing scholarship, it is easy to relate to the idealized judge and to think about constitutional law from their perspective.  This habit of mind fits with the understandings forged by mid-twentieth-century liberals about where constitutional debate ought to happen and where constitutional meaning is made.
For most of U.S. history, however, not only did reformers often spurn the courts’ perspective, but some of the most significant constitutional arguments and interpretations from all points on the political spectrum simply did not emanate from courts, or from scholarship.  They came from politics.  Politicians did not see their job as “we make policy, the courts decide if it’s constitutional.”  They made policy and they also “exposited” the Constitution and cast themselves as the People’s tribunes, and thus, the Constitution’s principal interpreters.   Many reformers forged arguments and interpretations in the political arena that arose explicitly out of a politics of opposition to the Supreme Court and the federal judiciary, since the courts so frequently played the role of protecting landholding, slaveholding, corporate and financial elites—the oligarchs of their day—from the encroachments of democracy.
The Court was entitled to its views.  But so were the political parties.  So were social movements.  On all sides of these questions, it was understood that non-judicial actors might hold and promote different views of what the Constitution demands or forbids regarding the role of government, the reach of regulation and redistribution, and the relationship between democracy, markets, and concentrated “private” wealth and power, among other questions.
These are questions of what we call constitutional political economy.  The parties debated them forcefully on the House and Senate floor, in state houses, and in campaigns up and down the ballot.   All sides had their experts in law, constitutionalism, and political economy, their public intellectuals and publicists, their journalists and stump speakers.  We want to emphasize here that there were plenty of interesting roles for scholars and other experts on all sides.  In the highbrow and popular press, in outdoor lectures and, later, on the radio, different publics attended to arguments that linked constitutional claims and interpretations (textual, historical, structural) with what today we’d call policy arguments and empirical claims.  For most of American history, from the beginning through the early twentieth century, this general pattern describes the constitutional politics—that is, the constitutional contests, going on in politics—about the major high-stakes issues of each political era: tariffs and trade, currency and banking, outfitting Black ex-slaves for citizenship, the rights of labor and capital, antitrust and the new corporate economy.
Today, liberals and progressives seem to have largely forgotten that battles over how we organize and govern economic life are conflicts with constitutional stakes.  Conservatives never stopped making constitutional political economy arguments.  But in the mid-twentieth century, liberals and progressives stopped.  They believed in the scientific and technocratic promise of the new discipline of economics.  In the shadow of the Cold War, the thinkers, policymakers, and activists who once had made communist, socialist, or even social-democratic arguments about constitutional political economy either changed their views or found themselves shut out of mainstream discourse and debate.  The Court shifted the focus of constitutional law from political economy to civil liberties and civil rights, and a new generation of liberal lawyers and scholars learned to speak in the increasingly elaborate doctrinal language the Court devised to regulate those spheres.
We think the present moment demands that liberals and progressives recover some of what constitutional politics looked like before this mid-twentieth-century turn.  In particular, as those who have encountered our book The Anti-Oligarchy Constitution know, we think the central tradition of progressive arguments about constitutional political economy across a century and a half, what we call the democracy-of-opportunity tradition, is worth reviving today.  That tradition held, broadly, that the Constitution requires that government ensure wealth and political power are widely distributed among the people, rather than being concentrated in too few hands; that we build and protect a broad, open middle class; and that our political economy must be inclusive across lines such as race.  The racial inclusion principle was honored in the breach too often for too long, and there was plenty of disagreement within this tradition, but part of why it seems so relevant today is that so much of it arose out of a politics of opposition to a Supreme Court that so often sided with oligarchs.
More than a century ago, during the first Gilded Age, it was largely the Supreme Court that provoked Populists, the labor movement, and reformist party politicians to dive deep into constitutional political economy arguments.  The Court’s fierce attacks on organized labor, wielding the new antitrust law to put down strikes, its constitutional defense of capital from fledging efforts at regulation, closely tied to the views then dominant within the Republican Party, demanded a response. 
We’re in another moment like that today.  Unlike the conservative court of the 1980s and 1990s that helped form the worldview of much of the present legal academy, the current right-wing Court has abandoned any semblance of good faith normal-science constitutional argument in favor of implementing the constitutional precepts of the present Republican Party coalition.
There is something a little ridiculous about the continuing liberal reticence to embrace a more forthright, and more explicitly political, constitutional politics.  Part of the ridiculousness is that liberals are being reticent about doing exactly the thing conservatives have been doing not only recently but continuously for almost a century, since the 1930s.  Conservatives understood that the Supreme Court is embedded in the American political system to a sufficient degree that it is possible to run against the Court and make the project of changing the direction of the Court a central part of one’s politics.  They copied much of the run-against-the-Court playbook from the Progressives of the early twentieth century, and greatly expanded that playbook.  Their early focus on opposing the New Deal and unions never dissipated.  Rather, it gained new life as opposition to the Warren Court became a centerpiece of conservative politics, first with a focus on school busing, and by the 1980s, school prayer and abortion and criminal procedure and much else.  It is not an exaggeration to say that the political agenda of the Republican Party was to a substantial degree re-centered on a constitutional politics of opposition to the (by then long gone) Warren Court.  Liberals today who are still reticent about a politics of opposition to the Court are worried about breaking a truce that the other side never signed.
There is also something poignant about this liberal reticence.  Progressives well understood a century ago that much of their constitutional project had to begin with lawmaking, state-building, and executive action, not litigation in court.  Enacting antitrust law or labor law or social insurance is not something a court, by itself, could ever do.  But these and many other legislative and administrative acts of state-building were understood as constitutional necessities.  They still should be!  But today’s progressives and liberals seem too attached to the Court of the twentieth-century liberal imagination to speak in clear constitutional terms to the branches of government that are actually capable of carrying out their constitutional program.
Progressives a century ago understood, as well, that constitutional arguments are central to the necessary project of structural reform of the constitutional system itself.  Our constitutional system is not only afflicted with an overbearing right-wing Court; it also is tilted in a variety of ways that favor rural Americans over urban ones, wealthy campaign donors over ordinary voters, and in general, Republicans over Democrats.  Like Progressives a century ago, today’s progressives need to pursue many kinds of structural reforms, some of which may be accomplished via internal changes to Congressional rules, others via federal legislation, and others that will require Article V Amendments or aggressive workarounds.  Progressives saw a century ago that constitutional arguments were central to making the case for all of these.  Even when striving to amend the Constitution using Article V, they did it in the name of constitutional principles that they argued had been undermined by the plutocrats and their allies in the polity and the courts.  When Populists, Progressives, or New Dealers championed court-curbing statutes, or amendments making the Constitution more easily amendable, or ones authorizing the federal income tax and direct election of senators, they consistently argued that reforming the constitutional order to vindicate its underlying principles is no contradiction.  Like Lincoln, they contended that the Constitution is “made for” its core principles like equality, not the other way around.
Today, for example, as soon as Democrats gain the votes to make Washington, DC a state—which would by itself measurably reduce some of the structural imbalances in the Senate—conservative activists will invent constitutional arguments to try to block this in court.  The strongest response is a set of constitutional arguments, in politics, both for why DC statehood is a constitutional necessity and for why this question is for Congress and not the Supreme Court.
Basically, we have become convinced that our intellectual forbears were right: constitutional arguments are an essential part of politics.  This doesn’t mean ignoring the courts.  It means being prepared to organize one’s politics around fighting the courts.  And since constitutional conflict generally happens in all venues at once, today’s liberals and progressives would do well to listen to the New Dealers of the 1930s and 40s, who pioneered a two-track strategy: lawyers can make the arguments in court that will be most convincing in court, which might be narrow.  But at the same time, New Dealers made their broader constitutional arguments in politics, directed at the American people and their representatives, in terms they well knew the courts would not accept: the fundamental right to strike and organize, the constitutional necessity of social insurance, the power and duty the Constitution imparts to Congress to reshape the nation’s political economy in ways that sustains democratic self-rule.
We think it’s essential for progressive constitutional scholars to take up this work, now and in the future.  Constitutional arguments outside the courts, in politics, can be as sophisticated as anything inside the courts.  They can be equally (or more) interdisciplinary than court-centered scholarship, drawing on the theoretical work and analytic toolkits of cognate fields, including the rapidly reviving and increasingly vibrant field of political economy.  This is the kind of work that today’s legal-academic profession is built to do.  Constitutional arguments outside the courts can build on precedents, not only judicial precedents but chiefly the precedents of past American political practice and norms, using history to help bring abstract-sounding constitutional principles and ideas down to earth.
As this work develops, it will require new kinds of collaboration and new institutional forms that enable legislators and their staffs, as well as the lawyers in administrative agencies, to hear from and speak to the academics doing this work.  For 20 years, Balkinization has been a venue that offers sophisticated lawyers in some of those settings a window into what some legal academics, most of them progressive or liberal, are thinking about the boundaries and possibilities of constitutional argument.  (For one of us—Joey—the opportunity to join this blog and regularly write constitutional arguments as part of that project of public communication has been one of the central formative experiences of an academic career.)  Perhaps the unexpected self-immolation of Twitter will lead to a new period of opportunity for blogs like this one.
 In any event, we will also need new institutional forms.  A recent conference bringing together ACS and the LPE Project for a discussion at Georgetown about constitutional political economy gave us a taste of what it might be like to have a conversation not just with litigators but with legislative staffers and advocates who are thinking through the new problems a radical Supreme Court has created, and beginning to formulate plans for a more assertive legislative and administrative constitutional politics on the left.  Regardless of the institutional forms, we urge progressive constitutional scholars—current and aspiring—to consider as a major potential audience for your work the progressive reform advocates, activists, legislators, executive branch officials and staffers, and so on.  All of these people are in need of constitutional arguments.  All are essential to building a more democratic constitutional political economy.  And it is, frankly, downright liberating to do constitutional scholarship that is not chiefly built for the Justices in dissent!
FDR argued that it “cannot be stressed too often” that the Constitution is “a layman’s document, not a lawyer’s contract.”  He was right.  Even the most lawyerly of progressive and liberal lawyers ought to recognize that the Constitution is more than a judges’ document—it is much more than a charter of judicial empowerment to set the boundaries of politics, a notion that never made sense. 
The U.S. Constitution is for everyone to interpret.  As conservatives have demonstrated for about 90 years, we do this through constitutional politics.  This particular point has long been a central theme of Jack Balkin’s work, along with the work of many colleagues who have argued for various forms of democratic constitutionalism—several of whom are participating in this symposium and/or contributing regularly to this blog.  The present lurch to the far right by the U.S. Supreme Court only makes it more urgent for scholars as well as advocates and politicians to think in terms of constitutional politics.  We think this ought to be a liberating, energizing prospect for scholars.  Leaving behind narrow court-obsessed conversations opens up a much more exciting set of conversations about how our constitutional politics can best reckon with the present crises (and that’s definitely crises plural).
Because let’s be honest, things are very bad.  The antidemocratic turn of a significant part of the American right has been sickening.  It brings to mind a significant subtheme of New Deal constitutional discourse in the 1930s. At the time, authoritarian and fascist movements, ascendant across the globe, were proclaiming constitutional democracies and parliamentary republics too weak and archaic to repair their nations’ broken economies and reknit their social fabric; homegrown American fascists and ethno-racial nationalists trumpeted that same message at home. Against that backdrop, New Dealers made the case that a constitutional politics built around social-democratic principles like national social insurance and safeguards for broad industrial unions and the social and political empowerment of ordinary working people was essential to thwart a fascist turn in American politics and salvage constitutional democracy.   
Hammering out this new constitutional politics was hard intellectual work.  It unfolded in venues from administrative agencies to the floor of Congress, from progressive scholarship and journalism to radio addresses by FDR and other New Dealers, and even to the arguments New Deal lawyers made inside the Supreme Court, where the Justices rejected them.  But the New Dealers were onto something about what the Constitution “requires”—an idea that they, like a great many of their forbears in the anti-oligarchy tradition, invoked in a double sense.  There’s what the Constitution’s text and principles affirmatively demand of government—and then there’s what’s required if we’re going to prevent constitutional democracy from collapsing into oligarchy and authoritarian rule.
Some of our friends on the left urge that progressives shun such constitutional arguments as these, which “inevitably orient us to the past” and ask us to engage with “what people agreed on once upon a time.”  Instead, they say, progressives should “reclaim America from constitutionalism” and champion reforms exclusively in terms of moral arguments, small-d democratic arguments, and other present-day “policy” arguments.  But what would it even mean to avoid constitutional arguments when the Supreme Court and the lower federal courts are constantly striking down laws and regulations on constitutional grounds—channeling, elaborating, and amplifying a popular constitutionalism of the right?  Will progressives in the public arena do better saying morality and general principles of good government require these big reforms, which our foes say flout the Constitution?   Or will they be better equipped for the fray if they can also draw on their own traditions of constitutional argument?  The latter seems to us the more likely course to succeed. 
And so, we think today’s crises provide a new but not-unprecedented crucible for progressive constitutional politics and the intellectual work that is needed to support it.  This is a time for broad intellectual horizons, not a moment for trimming our sails the way a Supreme Court litigator might.  This ought to be an exciting moment to consider devoting one’s career to the projects of progressive constitutional scholarship—and we hope that for some readers of this symposium, it will be just that. 
Joseph Fishkin is a professor of law at UCLA; William E. Forbath is the Lloyd M. Bentsen Chair in law and a professor of History at UT Austin; together they published The Anti-Oligarchy Constitution in 2022.

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