In the 1930s, like today, our nation faced a crisis of oligarchy: too much wealth and political power concentrated in too few hands. Like today's liberals and progressives, the New Dealers aimed to enact social and economic reforms that would ensure a much broader distribution of wealth and power, but they faced a hostile, right-wing Supreme Court that would certainly thwart such reforms. Thus, like liberals and progressives today, New Dealers proposed various measures aimed at curbing judicial review to safeguard the legislative reforms they saw as essential to making democracy work. Yet at the same time they hoped to preserve the Court's power-which they hoped the Court would exercise-to defend civil liberties, protect vulnerable minorities against state violence, and safeguard the rule of law in a moment of rising authoritarianism. This Article argues that this New Deal moment contains significant lessons for liberals and progressives today, who are once again arguing for curbing the power of a hostile, right-wing Supreme Court-while at the same time continuing to hope and demand that that same Court use its authority to thwart some of the government's more extreme violations of the rule of law. Liberals and progressives must respond to the present crisis, but must also think about what kind of constitutional order, with what kind of Supreme Court and federal judiciary, exercising what kinds of power, we hope to build. This Article surveys the various answers in present-day debates, from abolishing judicial review, in part or whole, to reforming selection procedures to "balance" the Court. We argue, drawing on the work of the New Dealers, for a more flexible and pragmatic approach that takes the Court seriously as a political body-one that can sometimes be persuaded to back off through political confrontation. The present Supreme Court has done much-from eviscerating campaign finance and anticorruption law to attacking the administrative state-to lay the groundwork for oligarchic rule. The solution, we argue, is not to eliminate the Court's power of judicial review or to pursue technocratic reforms that aim to put the Court above politics. Instead, liberals and progressives should lay the political groundwork now for confronting the Court through constitutional politics.

Previous articleNext article No AccessBook ReviewsJoseph Fishkin and William E. Forbath. The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy. Cambridge, MA: Harvard University Press, 2022. Pp. 640. $41.00 (cloth).Gordon ArlenGordon ArlenSwarthmore College Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmailPrint SectionsMoreDetailsFiguresReferencesCited by American Political Thought Volume 13, Number 1Winter 2024 Published in association with the American Political Thought organized section of the American Political Science Association and the Jack Miller Center Article DOIhttps://doi.org/10.1086/728233 For permission to reuse, please contact [email protected].PDF download Crossref reports no articles citing this article.

We deeply appreciate Frank Michelman’s thoughtful, nuanced, often profound essay about the arguments at the heart of The Anti-Oligarchy Constitution. It is the kind of reading that any writer of a book like ours hopes, but does not dare expect, to elicit. Michelman truly understands what the book is trying to do. His reconstruction encourages us to think more deeply about certain dimensions of the project, which is our task in this response.The Anti-Oligarchy Constitution aims to reclaim for liberals and progressives the forgotten field of constitutional political economy. But it also aims to advance and deepen understanding of popular constitutionalism, offering what Michelman kindly calls a “richer development” of how popular constitutionalism has worked in the past and how it might work again in the future. Michelman asks whether we are “monists” or “dualists”: monists believe that the only democratically legitimate force in politics is the “unbound rule by current majorities,” whereas dualists believe that constitutions legitimately have some force that can conflict with the political preferences of current majorities.1 As Michelman correctly discerns, we are dualists, but of a kind that is unconventional today. We do not view the Constitution as a force outside politics, constraining and setting the boundaries of politics—a view that fits well with the institutional vision that the Constitution must be implemented by a body that stands (purportedly) above politics: the courts. That court-centric version of dualism became the conventional liberal view in the middle of the twentieth century and has stayed that way. It is as familiar as the air we breathe. Researching and writing The Anti-Oligarchy Constitution led us to embrace a different, and older, view.In an arresting metaphor, Michelman describes our approach as “splitting the atom” of constitutional imperatives.2 We say there are such things as constitutional mandates or demands3 that have real force, but often that imperative force operates in politics—by which we mean both the venue (the so-called political branches as well as the courts) and the practice (political persuasion)—rather than through judges who restrain and referee politics. Michelman’s metaphor is apt today because of the present state of liberal, court-centered constitutional culture (although, to be clear: we are not the first to try to split the atom in this manner).4 Part of what we are doing in the book is showing readers that the present state of liberal, court-centered constitutional culture is anomalous in American history. For the first two-thirds or so of the history of the republic, the idea that the Constitution is both a subject of politics and a framework for politics, and not merely an object of judicial interpretation, was commonplace.5For most of U.S. history, voters, political movements, and politicians imagined and inhabited the constitutional order very differently from the way we do. For them, “the Constitution” was at once a text and tradition one interpreted and a system of government—whose powers, purposes, and precepts one implemented and pursued over time through political and legislative action. That is why, as we show in the book, legislative debates about classic nineteenth-century topics—bank charters, tariffs, the parceling out and sale of public lands—brimmed with constitutional arguments. Legislators on all sides believed that they were not only the nation’s primary policy makers, they were also its most important constitutional interpreters or “expositors.”They made first-order arguments about the Constitution’s meaning that were intertwined with policy arguments about the distributional effects of different policies. Many believed that they had a constitutional duty as legislators to enact measures that thwarted oligarchy and built a broad, open middle class. That was how the New Dealers saw the tasks of administrative state building and enacting social insurance; it was how Lincoln’s Republicans saw their Homestead Acts, their creation of the Freedmen’s Bureau, their distribution of abandoned plantations to the freed people. They were interpreting their constitutional obligations and working out and implementing them through policy making and institution building for their times. For most of our history, this was constitutional common sense.Today, much of it seems foreign. The weighty constitutional significance assigned to (what we would now call) economic policy choices seems strange. Partly this is because, as Michelman ably distills, economics has supplanted political economy. And partly it is because the pervasive talk of affirmative legislative constitutional duties is foreign to today’s highly judicialized constitutional culture: today we tend to think of the Supreme Court as the primary, if not the sole, expositor of the Constitution’s meaning. This turns the Constitution into a set of court-enforced limits the political branches must not transgress. That is what sets up the apparent “paradox” Michelman finds lurking in the ideas we have sketched.6 The Constitution, as higher law, is “necessarily conceived as distinct … from a politics it is there to instruct.” Yet, at the same time, the Constitution “leaves to determination by politics the meaning of its instructions to politics.”7This is exactly right. And it is only a series of relatively recent changes that have led these ideas to seem striking and innovative, perhaps even paradoxical, in their dualist conception of politics—so that the idea of a constitutional imperative operating in politics can draw a plausible metaphorical comparison to nuclear fission. Generations of Americans found these ideas obvious. (And they didn’t even have radio!)Part of what Michelman’s response prompts us to explore, more deeply than we do in the book, is the nature of dualism itself, as we conceive it. What exactly does dualism mean if constitutional debate and argument are part of politics? What force does constitutional argument have? Is it just a matter of rhetoric, a form of political persuasion to be judged against other rhetorical strategies? The next section of this response explores that question.Michelman also prompts us to ask: what is the role of courts in a political culture where constitutional arguments are being made both in a more legalistic register inside the courtroom walls and in a more political register outside them? The third section turns to that question.The final section turns to Michelman’s challenge toward the end of his essay: why, he asks, do we commend the renewal of political economy as constitutional subject matter for the progressive side of national policy debates? Is this chiefly instrumental advice? Are we instructing progressives to talk about the Constitution in the way our book invites because it will be politically effective? Or are we championing this renewal “for its own sake,” as a better way to run a constitutional democracy?8Writing this book, we followed the trails of some important pioneers. One is Bruce Ackerman.9 Ackerman opened the door to projects such as ours that explore the dynamics of American popular constitutionalism in theory and historical practice with his pathbreaking We the People series.10 Ackerman’s initial insight in these books is that our constitutional order has been repeatedly and dramatically altered by the American people in ways that do not comport with Article V of the Constitution (which provides the means of formal amendments). He convincingly demonstrates that the founding itself, and the massive constitutional changes of moments such as Reconstruction and the New Deal, have in common the fact that they do not follow the rules of formal amendment. Instead, through politics, Americans have changed our Constitution. Ackerman recognized that one way to understand this history, both positively and normatively, is what he called “monism”: the idea that there is no such thing as a constitutional constraint, and that really, political majorities should and perhaps do have “plenary power” to enact their policy program. Ackerman rejects monism, as do we. But, of course, he also rejects (indeed, rather demolishes) the simplest modern form of dualism, which imagines that law is separate from politics and that the only way for the people to alter our Constitution is through Article V. Instead, Ackerman imagines a more modern and more political sort of dualism. Americans, he argues, engage in both “ordinary politics” and “higher lawmaking.” Higher lawmaking, in his view, is a multistep process in which national majorities, under conditions of heightened political engagement and deliberation, repeatedly win popular support for their plan to move our higher law in the direction they advocate. Thus, for Ackerman, distinguishing ordinary politics from periods of higher lawmaking is a central intellectual preoccupation.For us, it is not. We view ordinary politics and constitutional politics as different but essentially continuous with one another—there is no bright line between them. In our view, it is possible to engage in ordinary politics in a way that does not expressly or implicitly invoke constitutional ideas and arguments; or it is possible to invoke such constitutional ideas and arguments to varying degrees; or it is possible to engage in a highly self-conscious form of constitutional politics that emphasizes constitutional ideas and arguments. Sometimes these forms of politics change our constitutional order after something that looks like a moment of higher lawmaking in Ackerman’s sense, and sometimes they change our constitutional order without ever even convincing a durable majority of Americans, simply through a gradual accretion of judicial appointments leading to court decisions that alter the trajectory of the law.11Ackerman’s interest in distinguishing higher from ordinary lawmaking is based on the premise that we need to know which is which to know which constitutional changes are legitimate and which are usurpations. Our reading of American historical practice is that such questions are rarely entirely settled. Even when they seem firmly settled, there is nearly always room to fight about the reach or meaning of that settlement years or decades or centuries later.12 Surprisingly often, Americans continue to fight about the first-order question of whether the constitutional changes of the past are settled constitutional bedrock or serious errors to be revisited and corrected. Thus, we view constitutional politics as an ongoing struggle in which a central part of the subject matter of the struggle is how to view the legitimacy and force of past changes to the constitutional order: the recent conservative counterrevolution; the civil rights revolution of the 1960s; the New Deal; Reconstruction itself.13The Anti-Oligarchy Constitution traces a tradition of constitutional argument that operated for the most part through politics—as did its various opponents, from pro-slavery constitutionalism to pre–New Deal anti-redistributive Lochnerism to the modern forms of originalism-inflected neo-Lochnerism that are central to the popular-constitutional agitation on the contemporary American right. Sometimes the constitutional dimensions of the political arguments were more explicit, sometimes less. Sometimes, it was right-wing activism by the Supreme Court and other courts that prompted progressive political actors to take up a more explicitly constitutional set of arguments by way of response. That pattern is one we find encouraging, in a way. The present right-wing Supreme Court is doing great damage to the republic, but there is a potential silver lining if the Court inspires modern progressives to recover a sense of how to do constitutional politics.The careful reader will quickly discern that from the perspective of avoiding the collapse of dualism into monism, we face a considerably harder road than Ackerman. Where he has a temporal distinction between ordinary politics and higher lawmaking, we see both happening all the time. Where he draws a bright-line rule that lends legitimacy to some forms of constitutional politics and denies it to others, we see the question of legitimacy as forever contested, recursively, through constitutional politics itself. This is part of why Michelman perceptively questions exactly what our version of dualism looks like or whether we are dualists at all.In our view, political actors are bound by the higher law of the Constitution because Americans collectively believe that to be the case. For over two centuries, Americans have engaged in a practice of making claims on the Constitution and arguing that those claims have a force that goes beyond and cannot be immediately overridden by the political will of a present-day majority. Not only lawyers but also politicians and voters think this way.This practice of constitutional politics has real value. It creates a kind of common ground—often hotly contested ground, but still common ground—on which Americans can stake out rival visions of our fundamental political commitments as we attempt to persuade one another.14 Movements of the disenfranchised and dispossessed—members of an imagined, inclusive national political community they hoped to bring into being—have made great use of this practice.15 The same goes for generations of radical left, as well as mainstream progressive, reformers in the democracy-of-opportunity tradition, who championed dramatic changes in the inherited constitutional scheme.16 Many were radical democrats, yet they were not “democratic monists.” They attacked plutocratic institutions like the Senate and the Court and called for structural reform to empower democratic majorities. But they did so in the name of the higher-law constitutional principles whose adventures we have chronicled: anti-oligarchy, wide-open opportunities for decent livelihoods and material well-being, and (sometimes, too rarely) racial inclusion. They were interpreting and making claims on the Constitution, and they said so—even as they tried to change the inherited text, and sometimes succeeded.In sum, a form of dualism is baked into American politics itself.17 Political actors make constitutional arguments not simply as a way of putting a rhetorical exclamation point on something they think very important, but instead because we share an understanding that part of our project of collective self-government is to be bound by certain commitments, whose meanings are therefore worth fighting about. Unusual among constitutions, the U.S. Constitution is a root signifier of national identity.18 When we fight about constitutional principles and their meaning, we fight about who we are as a nation and what kind of national community the Constitution promises to promote and redeem.19With the Constitution playing this role in the national story, it is not surprising that people with rival views about the direction of the nation’s political economy and much else have worked to ground their views in arguments about the Constitution. This includes the advocates of the anti-redistributive, “laissez-faire” constitutional politics that crystallized into Lochnerism in the 1900s. That constitutional politics helped give shape to the modern conservative account of an America founded on rugged individualism and limited government, private property, guns, and godliness.We see the power of this account to inspire a broad swath of citizens, lawmakers, and judges to act militantly on its behalf today. It not only resonates with conservative values but helps define them as a form of constitutional patriotism. Missing from our current constitutional politics is a comparably robust progressive account of the kind of community the Constitution promises to secure for all. Past generations of progressives, though, offered an account of national community grounded in the democracy-of-opportunity tradition. They argued that the Constitution promises—and obliges us to build—a nation with a democratic rather than oligarchic political economy: one in which all Americans enjoy a decent education, material security, and a genuine opportunity not only to earn a decent livelihood but to do something with value in their own eyes and to engage in the affairs of their community and the larger society. This account shows how the Constitution can undergird, rather than impede, core commitments to a broad distribution of power and opportunity that progressives see as essential to a democratic society.Taking the measure of this forgotten account, Professor Michelman observes, quite accurately, that the “historical course of American Constitution-centered, political economy-focused debate,” as we ourselves recount it, is not a history of “the democracy-of-opportunity side” prevailing over time, until it becomes “hegemonic.”20 Not at all. The democracy-of-opportunity side lost at least as many past battles as it won, and it should be clear by now that we offer no assurances about the future. No certainty of a “tidal resurgence.”21 We do, however, spy some contrasts between past and present worth noting.Not since the Reconstruction era’s Republicans has the U.S. seen a major party bring together all three strands of the democracy-of-opportunity tradition as it mounted major political-economic reform. The Democratic Party during the New Deal confronted the nation’s mass economic pain and rising class inequality by bringing together the anti-oligarchy principle and the imperative to build a middle class open and broad enough to accommodate the nation’s industrial workers—its white workers. That Democratic coalition included the champions of Jim Crow, a reactionary core that killed efforts to re-enfranchise the Black South and weave racial inclusion into the New Deal’s democracy of opportunity.Today’s crisis of mass economic pain and mounting class inequality is the first one in our history since Reconstruction in which there is a major party that might once again bring all three strands together at the center of its program: the Democratic Party, no longer anchored in the reactionary precincts of the white South. Whether or not it will do so is history not yet written. Nor is it yet possible to see clearly how the inevitable conflict will play out between a future Democratic majority and a hostile, and highly politically engaged, Supreme Court.In the two centuries and more of constitutional history canvassed in The Anti-Oligarchy Constitution, courts are usually on the reactionary or conservative side. This is a story we very much want our more progressive readers to understand. A century ago, the federal courts in particular were the locus of opposition to Progressive efforts to preserve the economic foundations of democracy in an age of rapacious accumulation of power by organized wealth. Their jurisprudence elevated property and contract rights to condemn unions, redistribution, and popular efforts to preserve the economic foundations of republican government. Today the courts, as ever the least democratic branch, are once again developing novel doctrines in a thinly veiled results-oriented jurisprudence aimed at vindicating the political aims of the Republican Party—including rebuilding a more deeply oligarchic political economy. This is not a random pattern of events. We argue that there are reasons, not only in practice but also in theory, why courts are likely, more often than not, to be the branch most opposed to the democracy-of-opportunity tradition. A reader who glanced through those chapters of the book might well be left with the expectation that its authors are likely done with the courts—that we are likely ready to argue for an end to constitutional judicial review. Many thoughtful people have taken that position, a century ago and today.22Michelman perceptively notes that we are not among them. Once again, this raises important questions. How do we understand the role of the courts? Do we view them as having a potential role in implementing an anti-oligarchic constitutional vision? In the book we talk about judicial interventions in constitutional political economy in terms of a sword (striking down legislation), a shield (upholding it against challenge), and a guide (interpreting it). This way of mapping the terrain, which we developed in response to an earlier exchange with Michelman, is useful for a few reasons; one of them is that it helps illustrate why, even though our main general prescription for courts is that they should largely get out of the way of democratic legislation, their role is more complex than that. There is more for them to do.The democracy-of-opportunity tradition we chronicle has always emphasized the primacy of legislation and administration in building a democratic political economy. This work involves much that courts cannot initiate: initial endowments, social insurance, public investment in job opportunities, and much else. But courts often need to interpret and implement legislation and administrative action of all these kinds. Courts can and should consider questions of constitutional political economy when they do. It is not simply a matter of upholding legislation against collateral constitutional challenges (the shield); it is also a matter of enforcing and implementing and interpreting the statutes and regulations in a way that gives force to their constitutionally important aims (the guide).But what about the sword? Today some are once again calling for an end to constitutional judicial review—or at least an end to the Supreme Court’s power to overturn federal statutes. As a matter of democratic principle, they argue, the voters and their representatives should have the final word in national lawmaking, not the courts. We see the future of judicial power in a more contingent and experimental light. Enacting a progressive agenda in the democracy-of-opportunity tradition would involve much legislation that clashes with the political-economic outlook animating today’s Court. If and when progressives succeed, and conservatives attack this agenda with constitutional arguments in court, we hope progressives will respond with a resurgence of popular and legislative constitutionalism. Party leaders, candidates, and lawmakers should argue that reforms to labor law, election law, social insurance, and a wide variety of other fields are constitutional necessities. Courts must back off to give such popular constitutionalism room to breathe. If the present Supreme Court will not, Congress and the President should force the issue, turning to a wide array of statutory tools at hand, including what Sam Moyn nicely calls the “fine-tuning of jurisdiction,” taking away from the Court as much power as the occasion demands.23 Nonetheless, this may surprise some readers, but we see room for a distant future court, a court very differently constituted than the present court, to hold, with the dissenters in cases such as Dandridge or Rodriguez, that the Constitution cannot tolerate laws that consign some citizens to a socioeconomic position so subordinate that they are excluded from any real opportunity to participate in our economic life.24 State courts, nearly all of which have heard cases in this vein regarding school finance, have shown that it is possible for courts to use the sword in a tempered way to require and impel legislative responses, sometimes spurring reluctant legislatures to take up their constitutional duties in such spheres.Moreover, we do not aspire to take the Constitution entirely away from the courts because courts at their best can do invaluable work of several kinds: the special work of protecting the most despised and politically untouchable minorities, such as prisoners; the Elysian work of protecting the political process from corruption and distortion; and at the forefront of our minds these days, the liberal work of blocking and checking the authoritarian and antidemocratic forces in our polity, doing what they can to help prevent the collapse of liberal democracy into some form of illiberal autocracy.Sometimes, courts are contingently the best positioned to do each of these sorts of work, in part because of the unique forms of persuasive power that the courts have acquired over our long national romance with constitutional judicial review. When a court says something is required by the Constitution, a lot of people will tend to believe it. That can be quite useful. Indeed, the modern neo-Lochnerian right has made enormous use of it, bringing arguments from the courts into politics and from politics back into court, secure in the knowledge that the same words spoken by a Justice of the Supreme Court carry additional persuasive weight regarding what the Constitution really means.Michelman reads us as endorsing a view that some constitutional principles are—as Larry Sager’s important work in this field would put it—underenforced.25 That is, some constitutional principles are enforced not in court but through politics. We agree. Some who share this view with us might aspire to build a principled taxonomy of distinct areas where courts should lean in or back off. (“[I]n a word, ‘footnote 4.’”26) We, however, see a great deal of contingency and overlap in the possible future institutional roles.Courts, like legislatures and executives, are engaged in constitutional politics. That is very often why courts contain the Justices they do; it is often why courts rule as they do; and it is why so many arguments migrate from politics into courts and from courts into politics as they frequently do. Courts, legislatures, and executives have different but overlapping forms of power and authority in constitutional politics; their roles have shifted throughout our history and will undoubtedly shift again.Our view is that the federal courts need to take a giant step back from their present posture: a form of judicial supremacy so extreme that it is dangerously close to judicial exclusivity over constitutional interpretation. We hope for this backing off, but we do not expect it in the near term. Instead, we expect pitched conflict in the coming years between the elected branches and the courts over the direction of the nation’s political economy.27 A progressive Congress would have a variety of tools at its disposal, including well-tuned jurisdiction-stripping, to force the courts out of the way if the situation demands it.And yet in the end, we are situated differently from our Progressive forebears, who were (rightly) profoundly skeptical of the courts of their time, and of the entire institution of judicial review, to the point that some of them called for its outright abolition. Those Progressives were operating in an environment without the criminal procedure revolution, without structural reform injunctions by courts, and most fundamentally without the entire liberal-legalist legacy of important rights claims structured to be enforced by lawyers in court.This court-centered, rights-based way of thinking has had a variety of profoundly bad consequences. It has helped erase from popular and legal memory the claims of constitutional duty and obligation that are at the heart of the democracy-of-opportunity tradition. It has narrowed, to the point of very nearly effacing, core constitutional claims about labor rights and social provision. But even now—even in their deeply compromised, flawed, self-aggrandizing, and politicized state—courts still can do too much good for us to give up on them entirely.What is needed, in our estimation, is a shift in the balance of power that would teach the courts, and the American people, that courts do not have a monopoly over constitutional argument. After that, as part of a dialogue or, more realistically, an ongoing contest over constitutional meaning and interpretive authority, courts should (and certainly will) continue to play a role in constitutional politics.We would judge such interventions on the strength of the substantive constitutional arguments more than the shifting boundaries of judicial and legislative roles. We are confident that reviving the democracy-of-opportunity tradition involves a vastly expanded role for legislative and popular constitutionalism. Courts must back off—and Congress and the White House must curb them if they refuse. But beyond that, there is a great deal of future history not yet written in which the Court might yet play a secondary but important, even perhaps complementary, role in cementing a future democracy of opportunity for all Americans.Finally, let us briefly turn to the set of questions Michelman poses toward the end of his essay regarding the political effects of the choices progressive politicians might make to speak in a constitutional register about what is now conceptualized as social and economic policy. Is it fair to assume, and do we assume, Michelman asks, that engaging in more explicit constitution talk about things like labor and social insurance, antitrust and banking reform, on the campaign trail or in state houses or on the Senate floor, is going to redound to the net benefit of progressive politicians?Here, we are unequivocal: we definitely do not know. We are not political consultants. That question is an interesting question, but it is not our question. We argue in the book that today’s progressives should, over time, aim to rebuild something of the rich world of arguments and precedents outside of court that were central to their forebears’ constitutional politics. But we urge this without any certainty about the short-run effect.Over the long run, however, we do have a view about what this would do. It would gradually reshape the terrain of constitutional politics. Making such constitutional arguments in the political arena would, over time, rebuild a more decentralized world of constitutional debate in which a variety of political leaders and other institutional actors, many operating in normal politics, fight out the Constitution’s meaning. In the long run this world would be more hospitable than the present one to the core arguments of the anti-oligarchy tradition, whose revival is important to the long-run survival of the United States as a democratic republic. Those arguments speak often in terms of legislative constitutional duty rather than judicially enforceable constitutional prohibition—a forgotten vocabulary that is essential to the constitutional case for the kind of major redistribution of wealth and power at the heart of much of the progressive agenda.The same is not true for the constitutional case against such reforms. The neo-Lochnerian constitutional outlook now afoot in the courts and public debate can work quite comfortably within the confines of our current, court-centered constitutional thinking, in which the Constitution mainly operates to empower courts to strike laws down.Conservative politicians and the conservative legal movement have done much over the past several generations to bring certain forms of constitutional political-economic argument into mass politics. They have convinced many ordinary voters to adopt some views (or at the very least, slogans) regarding constitutional interpretation, and they have convinced the same voters to care quite a lot about judicial appointments. What was originally an outsider challenge to the Warren Court through politics has gradually become a formalized channel through which our ruling coalition of Supreme Court Justices and other judges must demonstrate their right-wing political commitments in order to be considered for appointment. Liberals, by contrast, have retained a quaint and ultimately disastrous attachment to the supposed autonomy of constitutional law from politics.28 It is time for this attachment to give way, and for progressives today to make their constitutional arguments openly in politics, as their forebears did.Enacting a program of major redistribution, worker empowerment, and innovative administrative state building will require building a big, durable multiracial majority on the national scene. It will require a Democratic Party that can hold fast to a robust politics of race and sex equality while also embracing a politics of fighting economic and political oligarchy. That is an enormous political challenge, regardless of whether or how progressive politicians speak about the Constitution.Any party that hopes to take on that challenge today faces a range of obstacles. One in particular is pertinent here: the profound skepticism and disillusionment about the capacity of government to improve anyone’s lives that conservatives have successfully inculcated in Americans over the past several generations. They have done this in part by diminishing state capacity and deliberately making programs of economic regulation and social provision inaccessible or ineffective.29 They have also done it in part through legal and constitutional narrative. They have sold Americans a story in which American individualism and limited government is our constitutional heritage, constitutive of us as a nation. On this view, key elements of the progressive program are foreign imports that our constitutional heritage condemns: modern administrative state building, promoting broad class-based unionism, major new social insurance programs, public banking and credit in the service of social and economic democracy, and more. If the popular constitutional narrative condemning such policies is unanswered, it can only deepen skepticism and despair about the progressive program.The Anti-Oligarchy Constitution shows that every one of these ideas was born in the United States30—and that all of them were understood by broad swaths of Americans, often by large majorities of Americans and their leaders, to be exactly what the Constitution demanded of government. That claim was how generations of reform-minded politicians, movements, and opinion-makers met the constitutional claims of their foes. You can’t beat a constitutional narrative without a counternarrative. Here that requires recovering a fuller account of our constitutional experience, one that prevailing popular-constitutional memory, cultivated by the right, has erased.So, while we are not in the business of telling politicians what will win them elections tomorrow or next year, we are convinced that in the long run, this new (or newly recovered) constitutional narrative about the objects of government is essential. It is a narrative grounded in a form of constitutional patriotism that contrasts sharply with the ethno-nationalist appeals now resurgent in our polity. It is a narrative about what we can, and must, do collectively together under our Constitution to preserve the economic foundations of our republic.We think a move toward a self-conscious constitutional politics on the progressive left will not only counter but also complement the constitutional politics already central to the libertarian right (and some other parts of the right). Mostly that is for the reasons we have just sketched. But we also believe that making arguments about constitutional political economy as part of politics—as Americans have done for most of our history, and as conservative Americans continue to do today—is valuable “for its own sake.”Constitutional democracy is a social practice. We can try to outsource the constitutional part of the practice to courts and lawyers. Liberals tried to do that for over half a century. But in the end, we don’t think it can work. Judges and lawyers have important roles to play in any constitutional order. But if the people and their elected leaders abandon the practice of constitutional argument—and abandon their sense of constitutional duty and obligation, particularly with respect to political economy—the danger is too great that the constitutional system will be captured by some elite faction with its own views, unresponsive to the people.We think there is one big thing that the libertarian right gets right. Constitutional politics must address political economy. We first began to think along these lines long ago, engaging with the work of a constitutional thinker who is also an actor in the present book’s story line: Frank Michelman.31Among many things we have learned from Michelman is this. A respect-worthy constitutional order must address what it takes to make each person a consenting member—a charter member—of the political community. Like Michelman in his decades-long engagement with John Rawls, we conclude that this means our practices of constitutional argument and debate cannot be indifferent to the social and economic conditions of democratic lawmaking.32The libertarian right has its views about the constitutional essentials of a political economy that ensures such conditions. We have ours. We think that a political economy that measures up to the principles of the democracy-of-opportunity tradition is essential for renovating and preserving constitutional democracy in this country. We read Michelman as concurring: it would be better for constitutional democracy “for its own sake” if progressives attempt—with no guarantee of success—to persuade fellow Americans, on the plane of constitutional politics and lawmaking, that this is so.

We live in a time of profound and justified anxiety about economic opportunity. The number of Americans facing poverty is growing, opportunities for middle-class livelihoods are shrinking, and economic clout is becoming concentrated at the top to a degree that recalls the last Gilded Age. For reformers throughout the nineteenth and early twentieth centuries, economic circumstances like these posed not just an economic, social, or political problem but a constitutional one. A society with a “moneyed aristocracy” or a “ruling class,” these reformers understood, was an oligarchy, not a republic. This understanding was rooted in a constitutional discourse we have largely forgotten — one that this essay suggests we ought to reclaim. From the beginning of the Republic through roughly the New Deal, Americans vividly understood that the guarantees of the Constitution are intertwined with the structure of our economic life. This understanding was the foundation of a powerful constitutional discourse that today, with important but limited exceptions, lies dormant: a discourse of constitutional political economy. A powerful tradition of arguments, from the founding era through the nineteenth and early twentieth centuries, sounded in this tradition: arguments that we cannot keep our constitutional democracy — our “republican form of government” — without (a) constitutional restraints against oligarchy, and (b) a political economy that maintains a broad middle class, accessible to everyone. These are two of the central strands of what we call the democracy of opportunity tradition.Today, when we speak of “equal opportunity” and the Constitution, we usually think of a different idea, one more recognizable today as constitutional law: the idea of inclusion, which has its roots in Reconstruction and animates arguments that the Constitution requires us to include, on equal terms, those who have previously been excluded from important opportunities on grounds such as race and sex. This is the third strand of the democracy of opportunity tradition as we understand it.This essay, forthcoming in the journal NOMOS, tells the story of the democracy of opportunity tradition and the relations among its three principles--which have been fraught and often tragic. Generation after generation of white male champions of the first two principles of the democracy of opportunity tradition refused to include women and racial others. Later, the great triumphs of the principle of inclusion in the mid-twentieth century — the Civil Rights Revolution, the Great Society — were largely disconnected from the democracy of opportunity tradition. This was for a different reason: The Civil Rights Revolution and Great Society unfolded in an unprecedented moment of broadly shared prosperity; what remained to be done, it seemed, was to open the nation’s abundant middle-class opportunities to black America, women and other excluded “minorities.” Thus, the moment that marked the rebirth and greatest triumphs of the idea of inclusion also signaled the eclipse of the democracy of opportunity tradition of which it had been a part, and more generally of any constitutionalism not centered on the judiciary — an eclipse whose consequences have been far-reaching. In this essay and in a larger book project, we aim to recover the idea that inequality and unequal opportunity, oligarchy and aristocracy, have a constitutional dimension. In the end, we argue that the democracy of opportunity tradition can only succeed with its three strands intertwined. Here, we begin to sketch how a revived democracy of opportunity tradition, and a revived discourse of constitutional political economy, might matter both inside and outside the courts.

This paper is a rough draft of two chapters in a book-in-progress. It explores the advocacy, institution-building and constitutional imaginary of a handful of socialist lawyers, as they helped build the International Ladies Garment Workers Union in early twentieth century New York. These lawyer-leaders along with union chiefs, thousands of rank and file leaders and activists, and hundreds of thousands of new immigrant workers waged massive general strikes and forged industry-wide agreements and collective bargaining, while they also clashed over just how democratic and pluralist their socialist union would be. These struggles were a site of constant legal invention. They drew new immigrant workers into a deeply contentious experiment in reconstructing labor-capital relations on the basis of group rights with no footing in the official legal order: to organize, strike, and bargain on an industry-wide basis, to be dealt with by employers not as individual workers but as one big corporate body. The official order did more than refuse to recognize these rights; it condemned workers’ efforts to exercise them. Yet, despite the courts’ best efforts, this dramatic experiment largely succeeded; and the union membership ending up rallying behind the lawyer-leaders and activists committed to a deeply democratic, federated, socialist and multi-cultural vision of “group rights” and union organization. In the process, they forged a new rights consciousness – a consciousness of both peoplehood and class, mixing ethno-racial and class based conceptions of group rights. Not simply a brand of rights talk, it was a social and constitutional imaginary. Such an imaginary dwells at the intersection of ideas and social action. It is an assembly of analytic, normative and narrative pieces, along with what Raymond Williams calls “structures of feeling.” An imaginary gains traction in virtue of its capacity to express ideas, aspirations and normative principles about social structures and social relations, at the same time as it explains and helps reproduce – or, in the case of a counter-hegemonic imaginary like this one, helps efforts to remake – those structures and relations. The Jewish socialist constitutional imaginary whose adventures the paper follows did all three: expressed, explained and helped remake. In addition to testing out the notion of a constitutional imaginary, this paper about the past has a present political point. Today, corporate and group rights are found mostly in the normative and conceptual toolkits of various kinds of conservative thinkers. Liberals and progressives see them as fraught with dangers for individual freedom. If liberal democracy is imperiled, the response should be shoring up the individual civil rights and civil liberties of post-New Deal liberalism, enshrined by the Warren and Burger Courts. A century ago, things looked different. When left-leaning liberals, “advanced Progressives” and socialists imagined what might come next, after the overthrow of constitutional laissez-faire, it was not only Jews like the ones in this paper but many others who hoped that group rights would be part of the new constitutional firmament. Like left-leaning legal, political and social thinkers in many parts of the globe, they thought that modern liberalism could not make good on its promises of individual freedom and equality unless it took on board key precepts from its rivals and interlocutors: pluralism and socialism. They saw corporate and group rights as building blocks of a social-democratic and pluralist liberalism – or of a liberal and pluralist socialism. Individual rights alone could not secure a broad distribution of power on behalf of members of subordinate economic and ethno-racial groups. That kind of distributional work also required group rights. When the dust settled, of course, there were no such group rights in the post-New Deal firmament. There were some individual rights doing certain kinds of functionally similar work. But in the politico-constitutional milieu of the Cold War, even these were pressed into an older liberal legal mold. So, one of the ambitions of this work-in-progress is to acquaint liberal and progressive readers with an alternate brand of American constitutionalism in action, more pluralist and socialist than the one we got. During the Cold War, the socialist pluralist outlook of the lawyer-leaders in this story was repressed and forgotten. It had features worth remembering. It refused to choose between ethno-racial particularity and class universalism. It fashioned institutions, forms of advocacy and a legal and constitutional discourse that took up the competing claims of socialism, pluralism and liberalism, and individual and group rights, mediating the inescapable tensions among them and subjecting them all to stubbornly democratic principles. It rejected the notion of putting off the empowerment of ordinary workers for the indefinite socialist future, instead striving to implement it in the capitalist present, with the legal and institutional tools at hand. Its practitioners explained their ethics and style of advocacy in terms of the moral and political logic of a social movement that strives to prefigure the kind of world it hopes to create. It also rejected prevailing romantic, racialist conceptions of ethno-racial group identities, in favor of a pragmatic, open-ended view that emphasized democratic agency, change and self-invention. As we revisit the socialist tradition, this chapter in socialist history and legal history offers food for thought.

What, if anything, did Judaism or Jewishness have to do with the involvement of so many Jews in constitutional and human rights lawyering during the course of the twentieth century? How did defending the rights of racial others and other outsiders become a kind of Jewish calling? And how did Jewish human rights advocates manage the tensions that arose over the course of the century between what Samuel Moyn calls the “twin goals” of defending minority rights over against empires and nation states that flouted them, and defending Jewish claims to national self-determination via a Jewish state in Palestine? Written for a volume on The Law of Strangers: Jewish Lawyers and International Law in the Twentieth Century, this essay addresses these questions in the context of a commentary on what Moyn calls Louis Henkin’s “self-reinvention” in the 1970s as “the leading American legal advocate of human rights.” The essay situates Henkin in a long tradition of American Jewish legal liberals, going back to the late nineteenth century. The first Jewish civil rights lawyers were well-heeled Reform Jews in the 1890s-1900s. The standard account of their self-invention as rights advocates runs along instrumental lines: Fighting Jim Crow was a “displaced” way to address the threat that Jews, like African-Americans and Asians, might be legally cast as racial others. That’s true, but there is more to it. Nineteenth-century Reform Judaism involved reinventing Judaism itself, to outfit Jews for membership in the liberal state. On this new account, Judaism was no longer a system of laws, no longer a public, corporate separateness, and it no longer named a race or a nation. It was a “private faith,” just like Protestantism. The public-facing aspect of Jewishness was subsumed in being a citizen — 100% American. But what about the deep Jewish investment in remaining a people apart? And how was an assimilated turn-of-the-century Reform Jew to affirm his kinship with the despised racial others, the mass of supposedly “unassimilable,” new immigrant “poor Russian Jews” at the nation’s gates, without injuring the claim that Jewishness was no ethno-racial marker at all and Jews were 100% American? Rights lawyering, the essay shows, was one solution to these thorny problems, a basis for renewing Jewish particularity — affirming one’s identity as, or identification with, the outsider group, one’s solidarity with the despised others, the strangers and downtrodden — but doing so as a member of a respected bourgeois profession and in terms of Enlightened, universal values enshrined in the U.S. Constitution. Reform Jewish lawyers invented — and sacralized — the secular calling of the Jewish civil rights lawyer, whose most important, and sometimes sole, public enactment of Jewish particularity was the defense of constitutional liberalism and the rights of racial others. This liberal civic religion, or political theology, didn’t speak to the “masses” of new-immigrant “poor Russian Jews” in New York’s and other city’s Jewish “ghettoes.” Those looking for a modern, secular way of being Jewish found it in socialist Zionism and Jewish nationalism. They had their own lawyer-leaders, who insisted that Jewishness was everything the Reform Jews claimed it was not: a nation, a race, and a people with its own public political creed. They had a constitutional vision and vocabulary of their own that emigre Jewish lawyers and revolutionaries brought back and forth across the Atlantic. They demanded individual civil rights but also group rights of communal autonomy and national self-determination — in Palestine, but also in the Diaspora, in Russia, and even in the United States. The final part of the essay briefly previews a book-length study of the epic clash a century ago, between lawyer-leaders of the “race Jews” and the “faith Jews.” It reconstructs a moment, when it was the left-wing of American Jewry that defended Zionism, and it was establishment outfits like the Reform Jewish elite’s American Jewish Committee, that assailed these nationalist ideas — partly out of fear of raising the lethal specter of a Jewish “state within the state,” but also out of principled misgivings. Much like Louis Henkin, a generation later, these committed liberals were crystal clear about the poisonous, illiberal aspects of ethno-racial nationalism, and worried about whether Jewish nationalism, if and when it had a state and an army at its disposal, could manage to prove different.

IntroductionWhen you are writing a book, the best thing you can hope for is to find thoughtful readers and interlocutors. We are enormously grateful to have the to be in conversation with the other participants in this Symposium-especially the ones responding to our book, and even more especially at this stage in the process, when we are still writing it. in this brief response, we will focus first on one issue that is central to many of the other contributions to the Symposium. Then we will briefly address a series of objections or concerns about our project that different contributors to this Symposium helpfully raise.The contributions from Jed Purdy,1 Cynthia Estlund,2 and Jack Balkin3 responding to our manuscript, as well as contributions from Frank Michelman4 and Sabeel Rahman5 earlier in the Symposium, circle around a common question that is easily stated: in what sense, exactly, is our project about the Constitution?We are all asking versions of this question for a straightforward reason. Contemporary constitutional argument is overwhelmingly focused on a particular, conventional view of the Constitution and its relationship to politics: the Constitution enforced by courts as a constraint on political action, often in the name of specific clauses of constitutional text.In a number of the past constitutional struggles that we are writing about in The Anti-Oligarchy Constitution,6 one side saw things exactly that way. In the name of limited government, these forerunners of modernday libertarians aimed to slow down or halt major social and economic projects chosen through the political process, on the grounds that these projects violated various constitutional constraints. on the other side of these struggles was what we call the of opportunity tradition in American constitutional argument. In that tradition, the Constitution sometimes acts as a constraint, but more often the Constitution creates affirmative duties, which legislators and executives need to take the lead role in fulfilling, in order to build a more open and democratic political economy.So how, exactly, is this way of thinking constitutional? As Michelman notes, it is not primarily through rights claims enforced by courts.7 Some rights claims, such as labor-rights claims, do play an important role in the democracy of tradition, but even there, these claims have not usually been addressed to courts.8 This tradition is not, in other words, of a piece with calls for the expanded judicial enforcement of social and economic rights. There is a reason for that. Rights are especially useful in formulating many types of claims: libertarian claims, for example, and also the claims of left liberals fighting for social minima to protect those at societyu0027s margins. The democracy of tradition and its vision of constitutional political economy is not as easily framed in terms of rights. This vision is concerned with inequality-not only at the bottom but also at the middle and the top-and with the connections between economic power and political power.One answer, captured well by Rahmanu0027s argument,9 is that the democracy of tradition is concerned with the fundamental political and economic structures that literally constitute us as a society; that is the sense in which it is constitutional. This approach has much in common with talk of small-c constitutionalism-the constitutive commitments, as Cass Sunstein puts it, that are deep in American political culture, even if not in the large-C Constitution of lawyers and courts.10 However, we are skeptical of this distinction as a way of understanding the democracy of tradition-in part because the actors within this tradition did not look at things this way.Balkin offers a somewhat different answer in his contribution to this symposium, and it is one that deserves attention. He argues that republicanism-a set of ideas about constitutional political economy-plays the same role in the Constitution as separation of powers, checks and balances, and federalism. …

America has awakened to the threat of oligarchy. While inequality has been growing for decades, the Great Recession has made clear its social and political consequences: a narrowing of economic opportunity, a shrinking middle class, and an increasingly entrenched wealthy elite. There remains broad agreement that it is important to avoid oligarchy and build a robust middle class. But we have lost sight of the idea that these are constitutional principles.These principles are rooted in a tradition we have forgotten one that this Article argues we ought to reclaim. Throughout the nineteenth and early twentieth centuries, generations of reformers responded to moments of mounting class inequality and crises in the nation's opportunity structure with constitutional claims about equal opportunity. The gist of these arguments was that we cannot keep our constitutional democracy our republican form of government without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone. Extreme class inequality and oligarchic concentrations of power pose distinct constitutional problems, both in the economic sphere itself and because economic and political power are intertwined; a "moneyed aristocracy" or "economic royalists" may threaten the Constitution's democratic foundations.This Article introduces the characteristic forms of these arguments about constitutional political economy and begins to tell the story of anti-oligarchy as a constitutional principle. It offers a series of snapshots in time, beginning with the distinctive political economy of the Jacksonian Democrats and their vision of equal protection. We then move forward to Populist constitutionalism, the Progressives, and the New Deal. The Constitution meant different things to these movements in their respective moments, but all understood the Constitution as including some form of commitment to a political economy in which power and opportunity were dispersed among the people rather than concentrated in the hands of a few. We conclude with a brief discussion of how this form of constitutional argument was lost, and what might be at stake in recovering it.

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Progressives have forgotten how to think about the constitutional dimensions of economic life. Work, livelihood, and opportunity; material security and insecurity; poverty and dependency; union organizing, collective bargaining, and workplace democracy: for generations of American reformers, the constitutional importance of these subjects was self-evident. Laissez-faire, unchecked corporate power, and the deprivations and inequalities they bred were not just bad public policy—they were constitutional infirmities. Today, with the exception of employment discrimination, such concerns have vanished from progressives' constitutional landscape.

Barely more than a decade old, the jurisprudence of social rights across Latin America has inspired a rich debate among judges, scholars, and advocates about the impact of judicial enforcement of social and economic rights (SER) upon the distribution of social goods like health care and education, about what effects the involvement of courts has upon the politics and practices of social provision, and about how to assess them. These articles are important contributions to those debates. Martin Luther King described the rights-bearing provisions of the Civil War Amendments of the U.S. Constitution as “promissory notes”; that is not a bad way to consider the SER provisions of the many new (as well as the several older but profoundly modified) constitutions of Latin America that were crafted from the late 1980s through the 1990s. Forged after long struggles against violent and authoritarian regimes, these constitutions aimed to consolidate democracy. But the constitutions arose in the context of economic as well as political transformations. Alongside democratization, Latin America in the late twentieth century was also witness to the demise of midcentury models of economic development and social provision. The “developmental state,” the “planning state” as well as the traditional “welfare state” were assailed in the name of free markets and neoliberal reform. Privatization of industry, cut backs in social services, an easing of import restrictions, and scores of other political–economic changes threatened the already precarious lot of the poor and working classes, even as they were being newly outfitted as democratic citizens. The impulse behind the SER provisions of the new constitutions was somehow to match the democratic promise of participation in public life with a promise of participation in the material opportunities, public goods and social wealth that neoliberal reforms were thought to promote. Against the neoliberal grain of the times, the SER provisions echoed older socialist,

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Aziz Rana has produced a surpassingly good book. He has tied the history of ideas about liberty and citizenship to the history of empire and settlement, coined the notion of “settler freedom,” and used it to interpret the whole span of United States history. Rana has great synthetic powers and a rare gift for teasing out the core normative elements of complicated outlooks and ideologies. He is especially sure-footed in setting out the political and constitutional ideas of the American Revolution and founding period in the transnational context of overturning British imperial rule and projecting an American “empire of liberty.”1 His discussion of the royal prerogative and the governance of colonial subjects becomes a brilliant organizing trope that he carries through to the book’s final pages on undocumented workers in the twenty-first century.2 As Rana knows, he has few more enthusiastic fans outside his immediate family than I. However, the task at hand is critique, and so I turn to the point where I think the book’s surefootedness ends—with the twentieth century. Re-reckoning with the twentieth century and the modern administrative state is a task ahead for Rana. The account he offers in Two Faces of American Freedom falls into a trap that besets many historians and theorists of republican liberty. Call it the “Golden Age” trap—the trap of a lost past and an irredeemably fallen present. This elegiac kind of historical narrative comes naturally for conservative thinkers, but Rana is no conservative. He is unabashedly in search of a past that offers normative resources, reform visions, and critical insights for social and political transformation in the present. Rana’s take on twentieth-century developments, however, ill-serves that critical and normative aim. What is more, his account is somewhat wrong-headed as historical analysis. The Progressive Era and the New Deal were the decades that witnessed the creation of the modern administrative state in the United States.3 The gist of Rana’s account of these decades from the 1900s

Welfare is dead; but social rights are coming back. The 2008 election has brought the right to health care, to decent education, even to decently paid work back into circulation. What forms might a rekindled social citizenship take under a Democratic administration? What are its promises and perils? And for those concerned about the perils of exclusion for poor people of color, what might be done to push an Obama administration toward more pro-poor policies? What might a poor people's movement look like in the 2010s; and what can we learn from the strategies, insights and blind spots, the achievements and shortcomings of the Welfare Rights Movement of the 1960s? This review essay offers a few reflections.

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