Fishkin and Forbath introduce their approach to the topic of the Constitution and economic inequality, before outlining how the other participants in the Symposium approach their own responses to the connections between the Constitution and economic inequality.
Category Archives: TLR Vol. 94-7
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.
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.
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.
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.
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.
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.
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.
In response to several Symposium contributions, Fishkin and Forbath comment on one issue that is central to many of the pieces: In what sense, exactly, is their project about the Constitution?
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.”
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.
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.
Kate Andrias’s essay begins with a puzzle: scholars have built a robust set of constitutional claims about labor rights, claims with deep roots in the labor movement’s own past struggles and its own traditions of constitutional claim-making. Yet, workers’ movements today have made no use of these claims, Andrias reports. The reason, she suggests, has to do with the deep mutual hostility between workers’ movements and the courts. If past were prologue, workers could at least use such arguments outside the courts, but, she argues, “in our [contemporary] legal culture, constitutional arguments are primarily judicial arguments,” and have a way of ending up in court, where workers tend to lose as they have most of the time for more than a century. Thus, it makes sense for workers to avoid constitution talk. At the same time, Andrias argues, to lay the groundwork for any future constitution of workers’ rights—rights “to a union and to collective bargaining, to decent wages and benefits, to basic dignity and a measure of democracy at work”—we would need fundamental political changes that only organizing can bring about. She argues that campaigns such as the Fight for $15 and the Domestic Workers Alliance, working outside the confines of labor law as it is traditionally understood, may be laying the political groundwork for a future “anti-oligarchy Constitution.”
Brishen Rogers addresses what such a future architecture of labor rights might look like, taking account of the contemporary labor market conditions and new kinds of workers’ movements that Andrias describes—and taking account, as well, of the inescapable fact that the relationship among the state, unions, and individual workers is devilishly complicated “in a constitutional culture that prizes individual liberty.” In place of today’s archaic and dysfunctional labor law framework, Rogers proposes a model he calls “libertarian corporatism.” In place of our weak and outmoded forms of decentralized collective bargaining, Rogers’s scheme would encourage, or even mandate, collective bargaining at the occupational or sectoral level. But, also in contrast to today, it would leave workers nearly unfettered choice as to bargaining representatives and thereby draw the sting out of the Supreme Court’s recent neo-Lochnerian attacks on what remains of compulsory cost-sharing under the present labor law regime. Finally, Rogers’s model taps into the libertarian strain of contemporary Court doctrine, by removing certain core legal constraints on workers’ concerted action, as a kind of libertarian quid pro quo for eliminating bargaining unit exclusivity and compulsion. No matter that it proceeds in some “conservative” laissez-faire directions, the model would vastly enhance workers’ economic and political clout, and so its real-world salience depends on politics. If the nascent movements that Andrias describes gain steam in the context of a broader progressive revival, then perhaps this may prove a first sketch of some of labor’s planks in a future legislative anti-oligarchy constitution.
Olatunde Johnson’s essay hones in on the interaction and tensions between class-based and race-based egalitarianism, two threads that any future democracy of opportunity will need to weave together. She argues that geography—place—is the key to both forms of inequality today. Opportunity is tied to place, which is why racial and income segregation each play such a large role in the intergenerational reproduction of inequality. Johnson begins by highlighting empirical data suggesting why neighborhoods with concentrated poverty—which poor black people are much more likely to live in than poor white people—are resistant to some of the policy solutions on offer that aim either for race-based civil rights or for universal avenues of access to the middle class. She then turns to a set of solutions she views as potentially more promising: efforts by government at both the federal and (especially) the state and local level to “remake place,” edging living patterns toward a future of greater inclusion along lines of both race and class.