For the Balkinization 20th Anniversary Symposium
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.