The Constitution has Become Political
By now the retirement of Justice Stephen Breyer has become old news. But the political conflict over his successor has only just begun. Republicans have made the control of the Supreme Court a key part of their political agenda. Senator Lindsey Graham recently noted in resignation the Democrats have the power to fill the vacancy without a single Republican vote in support. Of course, the Republicans recently did just that with the confirmation of Amy Coney Barrett to the high court without a single vote in support from a Democrat.
Polarization extends into every facet of American politics, but it has become particularly vindictive when it involves questions about the courts. A large part of the problem is its oversized importance to resolve political questions without outlets for popular participation. The courts have become a convenient way for politicians to outsource important constitutional questions. Indeed, Americans largely accept the role of the Supreme Court as the final interpreter of the constitution. However, this gives the courts more than the final say over the law, but the ability to shape the foundations of American society and its economy.
Joseph Fishkin and William Forbath look to the past to discover a thicker and more democratic approach to constitutional politics. Their new book is called The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy. It weaves together ideas about democracy, economic inequality, and American history into a modern legal theory about the constitution and the legitimate forces able to shape it. They argue the people must have the final say over the meaning and purpose of a constitution for a republican government to thrive.
What is a Constitution?
Americans have an outsized reverence for their constitution. At the same time, few Americans think deeply about the purpose or role of a constitution for governance. The failure of Americans to think meaningfully about constitutions leads to some common misconceptions. For example, the American constitution is broader than the formal document. Its primary template was the English constitution. Indeed, it’s remarkable that the most well-known written constitution found its inspiration from the most well-known unwritten constitution. But the British constitution serves as a reminder that a constitution is more than just words on a page. It is the foundation for a political society.
The other common misconception about the American constitution is an emphasis on what it does not allow. Fishkin and Forbath draw on past traditions of constitutional politics to show many reformers found affirmative responsibilities in the constitution. The constitution did not simply detail what government could do, but also indicates what it must do. For instance, the constitution guarantees a republican form of government in every state. It’s an obligation that necessitates affirmative duties to bring the idea about.
Fishkin and Forbath detail an expansive history where reformers sought to ensure American government lived up to the duties and obligations outlined in the constitution. Early Americans believed it implied not simply a political foundation, but involved aspects of its economy and society. They write, “Economics and politics are inextricably linked, and that a republican constitution requires a republican political economy to sustain it.” Moreover, Americans throughout its history thought of debates about political economy as constitutional in nature. They thought of its economic structure as important for its political foundations.
The Constitutional Politics of Inequality
So much is written about inequality these days it is difficult to say anything new or novel. Thomas Piketty has explained the economics of inequality. Jacob Hacker and Paul Pierson have explained the politics of inequality. Angus Deaton and Anne Case have explained the health consequences of inequality. Nonetheless, nearly all scholarship focuses on inequality as a policy problem. Its solutions involve policy prescriptions. Joseph Fishkin and William Forbath chart a new path when they argue inequality involves constitutional questions.
Let me emphasize this is a subtle, but important distinction. Constitutional questions do involve policy prescriptions. The desegregation of schools after the landmark decision Brown v Board of Education centered on a constitutional question but led to a policy prescription. Nonetheless, they argue questions of inequality begin as questions involving the constitution. Of course, the constitutional questions surrounding the economy go beyond inequality to involve economic freedom and opportunity. Different values inevitably clash. Indeed, American politics largely involved disagreements over economic priorities and values. They write, “All sides in these nineteenth- and early twentieth-century debates agreed that the constitution spoke to the political economy. The question was what it said.”
Contemporary debates over economic inequality often touch on thicker conceptions of democracy, however Fishkin and Forbath show it plays an even more meaningful role in older republican traditions of government. Republicanism demanded civic virtue from its citizens for a well-governed society. Moreover, they saw greater overlap between the political, economic, and cultural aspects of society. Naturally, extreme inequalities in wealth perverted social relationships. It transformed a republican society into something more oligarchical. Obviously, republicanism is not akin to socialism, but it is not a laissez faire tradition either. It strikes a balance between the two to produce citizens who can self-govern.
So What About the Courts?
The rule of law is fundamental for democratic or republican government. However, the law is not the same as the courts. There is an important distinction between the two. Indeed, the courts can and sometimes have abused the law. Moreover, the failures of American Democracy have led to an overdependence on the courts to resolve fundamental political questions. Often these questions are constitutional in nature, but not always in a legal sense. Rather they involve duties and obligations of governance. These are not obligations imposed by a written document. No. They are duties we demand of ourselves. Constitutional politics involves the foundations for governance that extend beyond any single document, because they involve the principles for governance and require the people through their representatives to actually govern and deliver on those promises.
The courts must resolve disputes between parties over the law. But they cannot determine the foundations for a democratic republican society. Fishkin and Forbath warn, “Justices are not umpires. They are, as often as not, specialized players on the opposing team…. In American constitutional politics, the only real umpires are the American people. In the end, it is up to them to judge whether and when the Court is out of bounds.”
Joseph Fishkin joins the Democracy Paradox tomorrow for a conversation about constitutional politics, inequality, and American history. Subscribe to Democracy Paradox on your favorite podcast app so you never miss a single conversation.
Further Reading
Angus Deaton and Anne Case (2020) Deaths of Despair and the Future of Capitalism
Joseph Fishkin and William E. Forbath (2022) The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy
Tom Ginsburg and Aziz Huq (2014) “What Can Constitutions Do?: The Afghan Case,” Journal of Democracy
Jacob S. Hacker and Paul Pierson (2010) Winner-Take-All Politics: How Washington Made the Rich Richer–and Turned Its Back on the Middle Class
Donald L. Horowitz (2021) Constitutional Processes and Democratic Commitment
David Landau and Rosalind Dixon (2015) “Constraining Constitutional Change,” Wake Forest Law Review
Thomas Piketty (2014) Capital in the Twenty-First Century
Mark Tushnet (2014) “Authoritarian Constitutionalism,” Cornell Law Review
Sheryl Wudunn and Nicholas Kristoff (2020), Tightrope: Americans Reaching for Hope
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