Book Reviews

The Economic Constitution

The argument that democracy requires an equitable economic distribution long predates Franklin Roosevelt.

By Mark A. Graber

Tagged Constitutionprogressivism

The Anti-Oligarchy Constitution: Reconstructing The Economic Foundations of American Democracy By Joseph Fishkin and William Forbath • Harvard University Press • 2022 • 640 pages • $39.95

Allegiance and protection are reciprocal” was a longstanding axiom of common-law and American constitutionalism. That principle covered whether a person had duties as a subject or a citizen of a regime when that regime did not fulfill a basic state duty to protect that person, that person’s property, and that person’s family from foreign and domestic invasion. According to this broadly accepted understanding of governmental responsibilities, residents had no obligation to obey government decrees, such as a law requiring that they serve in the nation’s army, when the government lacked the capacity or will to protect them, their property, and their families. Republicans frequently made this connection between allegiance and protection when implementing the post-Civil War Amendments granting rights to former enslaved persons. Former slaves had obligations to their state and to the United States, proponents of racial equality maintained during the debates over the Civil Rights Act of 1871, only when their state and the United States protected them from the Ku Klux Klan and related violence. Citizenship entailed a positive right to protective services from the government.

In fact, the Republicans who framed and ratified the post-Civil War Amendments maintained that state duties to secure the rights of citizens extended far beyond preventing private violence. The Second Freedmen’s Bureau Bill of 1866 provided former slaves and refugees with land, education, health care, and other goods. When debating the measure, representatives and senators insisted that the United States, under the new Constitution being forged through the Thirteenth, Fourteenth, and Fifteenth Amendments, had a duty to provide all persons with the resources they needed to become full citizens. Former slaves and other destitute Americans had constitutional rights as citizens to basic necessities. Representative James Garfield of Ohio spoke for almost all his Republican colleagues when he rejected the notion that freedom was “a mere negation.” Such a freedom, the future President continued, was “a bitter mockery, a cruel delusion.”

Waving the banner of originalism, contemporary conservative originalists ignore the persons responsible for these arguments in favor of a constitution they wish the Framers had written. Committed to the proposition that historical facts are best derived from economic principles rather than from primary sources such as the debates in the Congress that framed the Fourteenth Amendment, former U.S. Court of Appeals Judge Richard Posner infamously insisted, “The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.” Chief Justice William Rehnquist channeled Posner’s imaginative history and disdain for Reconstruction Republicans when claiming that “the Due Process Clause . . . is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. . . its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” Remarkably none of the dissents in DeShaney v. Winnebago County Department of Social Services (1989)—in which the Supreme Court ruled that the government’s failure to prevent child abuse by a custodial parent did not violate the child’s Fourteenth Amendment rights—questioned Rehnquist’s history, even though his failure to invoke “allegiance and protection are reciprocal” might have disqualified the Chief Justice in the nineteenth century from joining the bar, much less joining the bench.

The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy thoroughly and brilliantly provides the forgotten history of the positive Constitution that formed the backbone of the post-Civil War Amendments. In a magisterial study that is a must read for all students of American constitutional development and contemporary progressives, Professors Joseph Fishkin and William E. Forbath meticulously document how Americans, progressive Americans in particular, for almost two centuries, insisted that the Constitution of the United States mandated a political economy that generated a strong middle class with the resources necessary to prevent political domination by a small group of economic elites. Jacksonians called that elite “the Money Power.” Antebellum Republicans called that elite “the Slave Power.” Franklin Roosevelt spoke of “economic royalists.” Prescriptions for remedying oligarchy changed over time as the threat to what Professor Ganesh Sitaraman of Vanderbilt Law School calls “the middle-class Constitution” evolved. What united Benjamin Franklin, Andrew Jackson, Abraham Lincoln, William Jennings Bryan, and Franklin Roosevelt was the conviction that the Constitution obligated the national government to ensure citizens of the United States had the resources necessary to maintain a constitutional republic, and that citizens of constitutional republics must enjoy both political liberty and economic independence.

The lost study of political economy provides the key that unlocks the positive Constitution of the American past. The central tenet of political economy, Fishkin and Forbath detail, is that political and economic systems are an integrated whole that cannot be studied separately or disaggregated politically. The extent of domination or equality in an economic system is likely to generate the equivalent levels of domination or equality in a political system. American proponents of republican government imbibed this lesson from their English ancestors, as did Hamiltonians who understood that granting elites special economic privileges would create a business class with a preferred position in government. Democratic governments, American progressives understood, prevent such an elite from dominating politics and the economy only by securing policies that ensure all citizens acquire or have meaningful opportunities to acquire the resources necessary to be full democratic citizens. These policies vary over time and are subject to political debate. During the nineteenth century, Jacksonians insisted that a government that avoided providing special favors to the affluent would maintain a democracy of equal opportunity. New Dealers maintained that under twentieth century conditions a government that provided strong support for labor unions and a safety net promoted a democratic political economy. Although they defined their terms differently, Jacksonians and New Dealers were nevertheless united by a common belief that the Constitution of the United States committed the national government to ensuring that democratic political economy.

Fulfilling these positive rights commitments to the democracy of equal opportunity was a legislative responsibility. Fishkin and Forbath, professors of law at UCLA and the University of Texas, Austin, respectively, point out that, until recently, constitutional argument emphasized this kind of constitutional political economy and was directed at elected officials who were charged with promoting policies that prevented oligarchy, maintained a robust middle class, and included all American citizens. Constitutional arguments outlining legislative duties served only as shields in court, as means for protecting legislation promoting a democratic political economy, rather than as swords that might be used to declare such legislation unconstitutional. Political leaders committed to an egalitarian political economy relied on political parties that mobilized average American citizens to maintain the democracy of equal opportunity rather than litigation shops composed of elite lawyers who are experts at making appeals to their elite law school classmates on the bench. Martin Van Buren spoke of a constant struggle for “the establishment of a moneyed oligarchy” that “is only prevented from realizing its complete design by the democratic spirit of the country,” a spirit Van Buren thought “could only find effective political expression via a permanent party organization.”

The Anti-Oligarchy Constitution bursts with quotations demonstrating a 200-year commitment to this democracy of equal opportunity and a positive Constitution that requires government to create the conditions for a democratic political economy. Representative John Bell of Tennessee spoke for his fellow Jacksonians when declaring, during the 1832 tariff debates, “[t]he accumulation of great wealth in the hands of individual citizens” undermines the natural “equality of rank and influence” that is “the very end and aim of all our political institutions.” Senator Charles Sumner of Massachusetts, during the debates over the Fourteenth Amendment, insisted that Congress had a constitutional obligation under the Guarantee Clause to provide persons with voting rights and the economic security necessary to cast an independent ballot. Labor leaders after the Civil War asserted that a “republican form of government” could be preserved only by “engraft[ing] republican principles into our industrial system.” Populists thought “in our Constitution the principle is imbedded” of ensuring “the widest distribution among the people, not only of political power, but of the advantages of wealth, education, and social influence.” Louis Brandeis insisted that government officials had a constitutional obligation to ensure that citizens had “a reasonable income,” “health and leisure,” decent “working conditions,” and “some system of social insurance.” Finally, Franklin Roosevelt spoke of government’s “inescapable obligation to its citizens” to “establish a democracy of opportunity.” Chanting the mantra of democratic political economy, Roosevelt intoned, “If the average citizen is guaranteed equal opportunity in the polling place, he must have equal opportunity in the marketplace.”

The anti-oligarchy constitutional tradition or democracy of equal opportunity Fishkin and Forbath document has three strands. The first emphasizes the threat economic oligarchy presents to republican government. The study of political economy that occupied the Framers maintained that politics and economics were not different spheres such that equality could be the norm in one sphere and domination in the other. Where there was economic domination, Jacksonians, post-Civil War Republicans, and New Dealers insisted, political domination would follow. The second strand emphasizes the importance of a robust middle class. Constitutional republics could be maintained only when most citizens were economically independent. “How can republican institutions,” Representative Thaddeus Stevens of Pennsylvania asked when asserting that freed slaves be given “forty acres and a mule,” “exist in a mingled community of nabobs and serfs?” The last strand is inclusiveness. All Americans, not just those privileged by race, gender, ethnicity, and the like, must have or have access to the resources necessary to be full democratic citizens. Susan B. Anthony connected all three strands when declaring, “By the practice of those declarations all class and caste distinctions will be abolished: and slave, serf, plebian, wife, women, all alike, will be bound from their subject position to the proud platform of equality.”

Of course, the positive Constitution hardly enjoyed a serene existence until some combination of Ronald Reagan, Newt Gingrich, William Rehnquist, and Richard Posner rose to power. Fishkin and Forbath acknowledge and document a rival tradition with equally strong roots in the framing that seeks checks on legislation in order to maintain the political and economic dominance of elites. This tradition, associated with such founders as Alexander Hamilton, Gouverneur Morris, and, on alternative weeks, James Madison, regards the role of government as protecting the property of the well-off, is suspicious of legislation, and treats constitutional argument as the domain of courts. Proponents of this tradition march to the beat of the Supreme Court’s decision in Lochner v. New York (1905), which insisted that labor regulations violated the freedom of contract, even as they pay lip service to the dissents in that case, all the while declaring that restrictions on corporate spending violate other constitutional principles in ways that could not have been conceived by their Framers.

The negative Constitution Rehnquist and Posner celebrated is not a phantasm, but that understanding of American constitutionalism has hardly been as hegemonic as proponents of a more Lochner-ian America have insisted. Fishkin and Forbath have established beyond argument that Americans have always experienced a vibrant positive constitutional rights tradition that, at crucial points in American history, most notably Reconstruction and the New Deal, was the dominant mode of constitutional thinking. We have lost access to that thinking over the past generations as liberalism entered into a romance with economics as a science that focuses on consumer welfare, rather than seeing political economy as a practice that emphasizes political and economic independence. Robert Bork, who cared only for the price of goods, is the patron saint of contemporary antitrust rather than Louis Brandeis, who cared about the economic independence of the middle class. Liberals led by Ronald Dworkin have been equally smitten by courts as a forum of principle rather than, as progressives and populists understood, legislatures as an arena for the constitutional politics necessary to establish and maintain the social conditions necessary for constitutional democracy.

Americans have always had a vibrant positive constitutional rights tradition that, at crucial points in American history, was the dominant mode of thinking.

The Anti-Oligarchy Constitution does a magnificent job highlighting the existence in American history of powerful commitments to breaking down oligarchies, maintaining a strong middle class, and including all Americans. But combining these strands into one tradition may paper over the serious political problems progressives have historically faced. To their credit, Forbath and Fishkin note that progressive movements in the past have not always combined commitments to anti-oligarchy, the middle class, and inclusion. Jacksonian Democrats were not inclusive. Bill Clinton and his allies were not sensitive to the distribution of wealth. The text does not make clear that American politics has as often been a struggle between factions who champion different strands of this anti-oligarchy constitutional tradition as a contest between proponents of inclusive constitutional democracy versus proponents of a Lochner-ian regime dedicated to maintaining the privileges of economic inequalities. Federalists and Northern Whigs were far more inclusive with respect to persons of color, native Americans, and women than Jeffersonian Republicans and Jacksonian Democrats, even if no one today would regard the New England of 1850 as an inclusive paradise. Many early opponents of racial segregation, most notably the influential treatise writer Thomas Cooley, laid the foundations for judicial protection for freedom of contract. Segregation, in their view, was just another way in which government illegitimately interfered with the free choices of individuals. By contrast, progressives who insisted economic life could be regulated for the common good often insisted as strongly that the same common good might justify separating the races (and restricting free speech).

Conservative political movements often succeed by pitting the perceived beneficiaries of one strand of anti-oligarchy constitutionalism against proponents of another strand. One standard response to “Why is there no socialism in the United States” is that lower middle-class Americans are too divided by race and ethnicity to unite on class. The culture war in the contemporary United States is Exhibit A on how debates over inclusion can forestall projects aimed at creating and maintaining a vibrant middle class. Struggles to integrate unions pitted proponents of racial inclusion against union members committed to more egalitarian work arrangements, but primarily or exclusively for white workers. The same constitutional politics derailed the democracy of equal opportunity in the late nineteenth century. Forbath and Fishkin discuss how racist appeals helped scuttle Southern populism. Violence was the major factor in dismantling the first Reconstruction, but Southern whites preferring racial to economic identities also played an important role in establishing Jim Crow.

Mediating these conflicts is a job for politics rather than law. Courts, even at their best, may hinder progressive coalition forming. Paul Frymer’s important book, Black and Blue: African-Americans, the Labor Movement, and the Decline of the Democratic Party, demonstrates that courts were effective in integrating some unions. But the problem with integration by judiciary, Frymer notes, was that too many litigation campaigns created winners and losers on a matter where compromises between members of progressive coalitions were desperately needed. Blaming liberal justices for legal defeats, many union members found the Republican Party a more than willing vehicle for their racial resentment. What the anti-oligarchy tradition needed was a political party that could negotiate the integration of unions, as well as the greater participation of persons of color and women in public life, in ways that avoided what were perceived as zero-sum games played by litigants.

The Anti-Oligarchy Constitution teaches progressives that history provides powerful foundations for a Constitution that requires the government to create a political economy that prevents oligarchic domination in politics and the economy. The constitutional politics necessary to reestablish and maintain this regime, Fishkin and Forbath detail, is primarily a legislative affair shaped by strong political parties. They masterfully document how Americans have understood the Constitution of the United States to impose numerous constitutional obligations upon the national government to ensure that all Americans have the opportunity to be part of a powerful middle class and how those constitutional obligations can be fulfilled only by the national legislature. The national legislature is the institution charged with determining when guaranteed health care is necessary to maintain the vital middle class and what are the best policies for guaranteeing health care. The national legislature is likely to perform constitutionally mandated duties to create a democratic political economy only when powerful progressive parties gain control of the national government. Political movements, as documented by Fishkin and Forbath, Jack Balkin, Reva Siegel, and many others, are the engines that drive progressive social change, not federal courts.

Progressives in 2022 must remember that national legislatures and parties, rather than courts, are the institutions that best forge the compromises between different constituencies with stakes in the three strands of anti-oligarchy Constitution. Federal justices may be reasonably good at providing people with rights to abortions (for the moment, at least) and integrated schools, but they are not as good as parties and legislatures at forging the bargains that foster increased commitments to integrated schools and abortions, and the powerful middle class capable of maintaining an egalitarian and inclusive citizenry. Earl Warren bragged that litigants before his court would receive more than the proverbial half-a-loaf, but the Jacksonians, Radical Republicans, populists, progressives, and New Dealers that Fishkin and Forbath bring to life recognized that the perfect was as much the enemy of the positive rights Constitution as commercial elites eager to convert their economic power into political domination.

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Mark A. Graber is the Regents Professor of Law at the University of Maryland Carey School of Law and the author of Punish Treason, Reward Loyalty: The Forgotten Fourteenth Amendment. 

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