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Economic Structure and Constitutional Structure: An Intellectual History

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Ganesh Sitaraman views the problem through the widest angle historical lens. Drawing on a book manuscript in progress, he argues that constitutional thinkers, beginning in ancient Greece and Rome, have understood that there was a necessary, important relationship between constitutional design and the distribution of wealth. He argues that the old way of managing this relationship was what we might now call consociationalist: it provided representation in government for the wealthy and for the poor, and managed their conflicts through constitutional design. He calls the constitutions that reflect this approach “class warfare constitutions,” and contrasts them with “middle-class constitutions,” which assume that their society will not have such extreme differentiations in the distribution of wealth. The American Constitution, he argues, is in the latter category—which means it is threatened in a fundamental way by gross inequalities of wealth.

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Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?

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Sabeel Rahman employs a wide lens of a different sort. Drawing on his own book manuscript in progress, he begins with the Progressive response to Lochner, especially the hostility of the Progressives and legal realists to the courts. He argues that from this key moment in constitutional and political history we can learn something broader about both social and constitutional change: that restructuring the political economy is a quintessentially democratic process. He argues that we should understand this process—by which democracy asserts itself against various forms of domination—as a constitutional process in a “small-c” sense, as distinct from the “large-C” constitutionalism of constitutional text and constitutional rights.

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The Second Freedmen’s Bureau Bill’s Constitution

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Mark Graber, by contrast, focuses our attention on a single statute: the Second Freedmen’s Bureau Bill of 1866.13 From it, however, he draws some very broad and striking lessons about the actual practice of American constitutionalism. The Second Freedmen’s Bureau Bill implemented the Thirteenth Amendment as the Reconstruction Republicans understood that Amendment. The bill provided people of all races with various goods and services that the Republicans viewed as necessary in order to unwind the economic order of slavery and provide for the full and equal citizenship of both blacks and whites. Part of what Graber explores in this fascinating snapshot of constitutional politics is its partisan nature: it was really the Republican Party, and certainly not the courts, that the Reconstruction Congress imagined would interpret and enforce the guarantees of the Thirteenth Amendment—and the party would do this through legislation that explicitly attempted to intervene in American political economy.

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The Unbearable Lightness of Tea Leaves: Constitutional Political Economy in Court

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Frank Michelman offers a critical discussion of the sense—if any—in which Fishkin and Forbath’s argument is a constitutional argument. He carefully teases out some different senses in which such an argument makes claims about the Constitution in court. He asks whether Fishkin and Forbath are essentially opening the door to an unraveling of the New Deal settlement, and a return of what Holmes called “economic theory” to the work of the courts. And finally, he questions why the argument contains much talk of the Constitution, but relatively little talk of constitutional rights.

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Overcoming the Great Forgetting: A Comment on Fishkin and Forbath

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Purdy emphasizes the “great forgetting”—the disappearance of the discourse of constitutional political economy in the wake of the great triumph of the democracy of opportunity tradition in the New Deal. Purdy’s essay imagines what it would mean to recover this tradition and restore its central place in our understanding of our constitution. He imagines both benefits and potential risks, and explores both.

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Republicanism and the Constitution of Opportunity

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Jack Balkin explores the conceptual foundations of Fishkin and Forbath’s project, and the argument for understanding the tradition they sketch as a constitutional tradition. Balkin finds that their project fits well with, and indeed exemplifies, his general theory of living originalism. His argument centers on what he calls “republicanism,” a set of related principles that the founding generation correctly understood to be part of the ground on which the Constitution necessarily rests. Balkin argues that the affirmative legislative constitutionalism we describe and advocate is best understood as a form of “state-building constitutional construction”: it is how Americans build out the specifics of our constitutional order on the foundation of principles that include a commitment to a political economy compatible with republicanism.

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The “Constitution of Opportunity” in Politics and in the Courts

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Cynthia Estlund focuses on a long-running conflict within the democracy of opportunity tradition as we understand it: the perennially fraught relationship between, on the one hand, the principle of inclusion, especially across racial lines, and on the other, a commitment to preventing oligarchy and preserving a broad, open middle class. Using conflicts over labor law as her central case, Estlund argues that the future prospects of the democracy of opportunity tradition are threatened by the same political and economic forces that so often cleave apart economically struggling whites and racial minorities. She then explores the potential implications the democracy of opportunity tradition might have for the law of labor and work.

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Two Views of International Trade in the Constitutional Order

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Cory Adkins’s and David Grewal take the historical recovery of constitutional political economy in the direction of international trade, exploring the changing constitutional status of trade agreements from the Founding Era to the present. Until the mid-twentieth century, international commercial agreements were passed as treaties, by two-thirds of the Senate; afterward, such agreements were repackaged as normal legislation; and more recently, “fast-tracked” as “congressional–executive agreements.” These agreements also have begun to reach deeply into domestic regulation, in fields like intellectual property, environmental regulation, and consumer protection. Adkins and Grewal examine what accounts for these transformations and what they mean for contemporary constitutional politics. Comparing the constitutional political-economic discourse of the Founders with that of today’s policy makers, they observe that amid important continuities, “one of the Founders’ major concerns has been left behind, namely that one region’s economic interests and institutions should not be aggressively undercut in promoting the interests of another.” The disappearance of this concern, Adkins and Grewal argue, coincides with an international policy that “now privileges the finance and technology sectors” on the two coasts and short shrifts “the decaying industrial heartland.” “Recovering what Forbath and Fishkin call the ‘constitution of opportunity,’” they suggest, “will require examining how these changes . . . have affected the capacity for self-government in the American republic.”

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The Political Economy of “Constitutional Political Economy”

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Jeremy Kessler’s essay argues that contributions to this Symposium would benefit from revisiting the Marxist tradition’s toolkit for understanding the interplay of law and political economy. From a Marxist perspective, Kessler suggests, what was afoot in the “constitution of opportunity” tradition we chronicle may have been not so much an egalitarian critique of emerging industrial capitalism as a battle to purge the American legal and constitutional order of the remnants of precapitalist legal and political-economic formations, such as slavery and the quasi-feudal kinds of property interests in labor that imbued nineteenth- and early-twentieth-century labor law. The New Deal, on Kessler’s account, may have represented “little more than the achievement of properly capitalist labor relations outside the Jim Crow South.” But even if the New Deal’s version of constitutional political economy had more egalitarian force than that suggests, its “discursive supremacy” was short-lived; it was followed by what we call “the great forgetting.” Kessler argues that our account of that forgetting “neglects the determinate political-economic event of the post-WWII period”: a Cold War “between monopoly capitalism and state socialism launched precisely at the moment when the economically egalitarian interpretation of constitutional political economy apparently became unspeakable.” The democracy of opportunity tradition, as Kessler sees it, was not so much forgotten or defeated by forces the symposium highlights, like the anti-New Deal coalition of Jim Crow Dixiecrats and pro-business Republicans; it was purged by Cold War anticommunism. Recovering a more democratic and egalitarian constitutional political economy today, Kessler concludes, may require a direct confrontation with the “material and discursive structures” that anticommunism left us.

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Why is There No Socialism in the United States? Law and The Racial Divide in the American Working Class, 1676–1964

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Pope takes a leaf from the great, unorthodox Marxist thinker, W.E.B. Du Bois, whose insights into the role of race in the formation of the United States’ white working class inform Pope’s answer to the old question: “Why is there no socialism in the United States?” Pope’s answer, like Du Bois’s, Derrick Bell’s, and others in this distinctive tradition, is that working-class identities in the United States took shape around racial identities; white working people in the United States spurned class solidarity across racial lines, settling instead for the psycho-cultural wages of whiteness, along with the material privileges whiteness brought in a political economy that, for most of U.S. history, relegated African-Americans (and often other racial others) to the most menial and “degraded” labor. Pope’s essay is a ranging synthesis of how centrally law figured in creating and enforcing these racial divisions, from the legal construction of black slavery in the mid-seventeenth century onward.

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No Room for the Poor—The Blight of Eminent Domain on America’s Lowest Economic Classes

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“Blight” is the label used by U.S. law to describe property that is considered to be dilapidated or injurious to public health. In much of the U.S., it is easier to use eminent domain to condemn a property if it is deemed “blighted.” This Note examines the negative effects that condemning such properties can have on residents of “blighted” areas and proposes some changes to the law that would better protect these residents from the costs associated with condemnation.

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Blackhorse Down: Do NFL Teams Need Trademark Protection?

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In this Note, William Mason analyzes the economic effects of the Trademark Trial and Appeal Board’s decision to revoke federal trademark protection from the Washington Redskins and questions whether those effects are sufficient to force a change to the team’s name.  He argues that the protections and incentives provided by the NFL and collective bargaining will significantly damper any economic effect the Board’s decision may have, and instead suggests alternative areas where social and economic pressure may prove more successful.

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News

Congratulations Volume 95 New Members!

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The Texas Law Review is proud to announce its volume 95 membership!  Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.

Congratulations Volume 94 New Members!

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The Texas Law Review is proud to announce its volume 94 membership!  Congratulations to all our new members, and welcome to TLR! The Masthead is now available for download.

Volume 94 Editorial Board

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The Texas Law Review is proud and excited to announce the Editorial Board for Volume 94. The members of Volume 93 are happy to pass the torch to such a fantastic group of people. View the Volume 94 Editorial board Masthead.

TLR Alumni Score the Top Grades on the Texas Bar Exam

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The Texas Law Review would like to congratulate two of its Volume 92 alumni for achieving the top two scores on the July 2014 Texas Bar Exam. Jamie Yarbrough, who served as the Research Editor on Volume 92′s editorial board, had the top score followed closely by Michael Kelso, an Articles Editor on Volume 92′s editorial board. Mr. Yarbrough is currently working as an associate for Baker Botts in Houston while Mr. Kelso is clerking for Judge Carolyn King of the Fifth Circuit Court of Appeals.