Joseph Fishkin is a Professor of Law at UCLA School of Law. He is the coauthor (along with William E. Forbath) of The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy.
For many Americans, for the first many generations really up through the mid 20th century, the constitutional order seemed to rest on and depend on an economic order in which people had enough economic clout to be independent citizens and voters. Not serfs dependent on some kind of master.
- How did Montana reform its laws to limit the influence of Amalgamated Copper?
- When do questions of inequality become constitutional questions?
- How did the courts undermine labor laws in the early 20th century?
- What are the affirmative obligations and duties in the constitution?
- What is the proper role of the courts in American politics?
Last week Justice Stephen Breyer announced his intention to step down from the Supreme Court. Over the past few years, the nomination process has become highly polarized in part because it’s the only channel left for debates over constitutional politics. It’s during these short windows when the public debates over the direction of the court and the constitution. But it doesn’t have to be just these brief moments. A new book from Joseph Fishkin and William Forbath called The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy challenges how we think about the constitution and its politics.
It’s an ambitious book that ties together ideas about economic inequality, American history, and constitutional legal theory. I actually spoke to one of the authors, Joey Fishkin, a few weeks ago. We talked about the ways past generations thought about the constitution differently and how it offers genuine lessons for us today. For those who don’t know him, Joey is a professor of law at the University of California, Los Angeles.
Our conversation touches on the Supreme Court, but also emphasizes the need for the public to engage in debates over the constitution. Because the constitution is more than a document. It is the political foundation for the society we are today and hope to become tomorrow.
So, I hope you enjoy my conversation with Joseph Fishkin…
Joseph Fishkin, welcome to the Democracy Paradox.
Thanks for having me.
Well, Joey, your book is really a must read. I know it’s early into 2022. It seems silly to say it’s one of the best books of the year. I thought it was one of the most insightful books on democracy that I’ve read for a long time. It was part history, part legal theory, part political theory, but I personally really appreciate a great story. So, I’d like to start with the history. Tell me a little bit about Amalgamated Copper and the reforms that Montana put in place in the early 20th century to reduce their influence, because I think it’s a great example that helps open up some of the topics and some of the ideas within the book.
That’s great. Yeah. No, I agree with you. This is a ball of twine. You could pull on a lot of different threads, but this is a good one. So, for those who aren’t Montana history aficionados, which I wasn’t before starting this project, but got deeper into than I could possibly have imagined at the beginning. Amalgamated Copper Mining company, which sometimes is just called The Company in Montana around the turn of the 20th century, was a giant corporation that controlled a lot of the politics of a kind of very early nascent state. Not a lot of people. Not a lot of robust institutions. Courts and legislators were really just, you know, getting started in the state and through rampant bribery and controlling the newspapers, which were the main means of communication, this company largely could get what it wanted from the legislature.
And when the usual tactics ran out in one really dramatic event that I think helped precipitate some of the reform efforts to stop the power of this company over the state’s politics, the company at one point just shut down operations shortly before the winter, throwing an appreciable percentage of the entire state out of work. Not just because people work for the company, but people make food for the people who work in mines, et cetera. So, this company had unbelievable power. And what the populist reformers in Montana saw was that even though they could vote in free elections, they didn’t really have a democracy in Montana. They had something that looked more like an oligarchy where the leaders and the out of state investors of this big corporation could more or less control their politics.
And so, the reforms to do something about this were various, but one of the big ones was actually to import from Oregon a system of direct democracy that we have today across a lot of the West which is popular initiatives, popular referenda, even recalls. And Montanans used this early initiative to put in place a few different limits on corporate power in the state. One of which was a ban on money from corporations, directly funding politicians and political campaigns and also, spending money to influence political campaigns. And that last part where politicians were prevented from going out and spending money to influence political campaigns, that part might sound familiar to you if you were paying attention to national politics a hundred years later.
Because in Citizens United, the most famous of the wave of Supreme Court cases in recent years deregulating campaign finance, the Supreme Court of the United States held that the First Amendment prohibited laws from blocking corporations from spending money to influence elections, because we should think of that money as speech and corporations have that speech right. And in a lesser-known case following on Citizens United exactly a hundred years after it was enacted in Montana, the Montana Corrupt Practices Act was struck down by the US Supreme Court. The Montana Supreme Court had said, ‘No. We think despite Citizens United. This law should be upheld because history has shown that we need it to stop oligarchy in Montana.
And the Supreme Court said, ‘Which part of Citizens United didn’t you guys read? We made it clear. You can’t do this.’ Unanimous actually, this law was struck down because it really was kind of the same thing as the law in Citizens United. And so, to me this whole story encapsulates a lot about how a hundred years ago there was a progressive, constitutional reform effort where in the name of the constitution and the name of preserving republican government, the people of states like Montana put in reforms that were aimed at making sure that the people would be in charge in the end and not a bunch of wealthy, powerful corporations.
A hundred years later, the Supreme Court is interpreting the constitution in kind of exactly the mirror image way to block exactly those reform laws and the constitutional rights. Now we’re supposed to focus on the First Amendment rights of the wealthy, giant corporations. So, I think that shows a lot where we’ve come in a hundred years. And a lot of what the book is about is about how maybe we should recover some of that older way of thinking from a hundred years ago about the constitution and how to think about constitutional arguments that might actually disperse power among the people instead of concentrating it in the hands of a few.
So, like you kind of mentioned at the beginning, there’s a lot of different threads within this book that are weaved together. The idea of inequality, the idea of constitutional politics, there’s a lot of history that’s involved. I want to draw back to this idea about the constitution, because typically when we think about the constitution, when we talk about the constitution, we’re talking about a single document that is the American constitution. At least in the United States we’re talking about a single piece of paper or rather a few pieces of paper that are tied together along with the amendments. I get the impression that for you, the constitution is a bit broader than that. When we think about it, it’s a little bit thicker. Can you tell me what it is that you mean when you talk about a constitution or constitutional politics? Is it limited just to the single document or is it a thicker conception when we think of constitutions?
Yeah, this is a good question, which I appreciate. I mean, the current way of thinking about the constitution is very much as a kind of legal document for courts to interpret. You know, textualism is in vogue these days. Justice Kagan says, ‘We’re all textualists now. We’re just looking at the text of the document.’ This is not true. We look at a lot of things that are not the text. We look at structural questions, what do we think the legislature versus the executive. You know, the constitutional text says that the federal government will preserve a republican form of government in the states. You know, it’s not exactly self-interpreting those words.
But I do think you’re right that since this book is a lot about how Americans thought and argued about the constitution in the first hundred plus years, 150 years maybe of the existence of our constitutional order, a lot of times Americans made arguments that were not as grounded in text as the current norm. Now they used the text. They invoked lots of parts of the text. They invoked the Declaration of Independence. They invoked the Republican form of government. They invoked the Equal Protection Clause and due process and a lot of other pieces that today we still talk about a lot.
But they also made structural arguments, which like we do today when it comes to executive power or something like that, they made structural arguments that had to do with the constitution as built on an idea that this is going to be a Republic. And what does that mean? For many Americans for the first many generations, really up through the mid 20th century, the constitutional order seemed to rest on and depend on an economic order in which people had enough economic clout to be independent citizens and voters, not serfs dependent on some kind of master, not like slaves. And so, for people to be kind of independent republican citizens at the founding and all the way through Reconstruction, the idea was that we could make some arguments about what the constitution demanded as a structural matter of our economic system and of economic policy.
So, today my coauthor Willie Forbath and I are trying to resurrect that way of thinking about the constitution. It certainly uses constitutional text, but it’s less clause bound. It’s more structural. It’s more thinking about political economy in a constitutional way and thinking about questions like economic inequality in constitutional terms. And so, to me the constitution isn’t limited to just the words in the document. It’s also the precedence. It’s also the traditions of arguments that Americans have made about it. And it’s the fundamental economic substrate on which the republican order sits. So, if we managed to get to a point where a handful of people in this country owned all the wealth and everybody else was dependent on them and had to work for them, we wouldn’t really have that much of a republican democracy of the kind the constitution has in mind.
That’s the kind of argument that a lot of Americans made in the tradition that this book is trying to kind of excavate for really the majority of American history until about the mid-20th century. And that kind of argument does sound a little strange today. You know, that’s why we wrote this book. It is not obvious to everybody today that a lot of the things that people used to think were constitutional are. But you look at it and for most of American history, in fact, most of the fights about issues like labor law, monetary policy, antitrust, all kinds of things that today do not seem constitutional, these were part of what everyone agreed were constitutional arguments. And so, realizing that that’s how people used to think about it. And then how unfamiliar that sounds now is part of what made us write this book.
I felt what was very remarkable about your book is that when I read the introduction and read the big picture Idea it seemed very radical and implausible. But it made so much more sense when you walk through the history and the examples and I was able to really understand what you’re talking about and really understand these ideas. So, I’d like to bring us back to a couple concrete examples before we get back to some more big picture ideas behind this. And I think one of the most fascinating for me was regarding labor. And you mentioned the way that the courts now interpret corporations as people. And it’s interesting because they do the exact opposite when it comes to unions and labor organizations, especially at the turn of the century, but even today as you write about.
But in the book, you write, “The American state of courts and parties was enemy territory. Even when labor won it lost. Not only were labor and populist inspired reforms struck down or nullified by interpretation, they were turned violently against labor.” It’s even more fascinating when you get into the weeds and you get into examples about that. So that’s exactly what I’m going to ask you to do. In the early years of the labor movement, how did the courts turn populist reforms against labor?
Yeah, so the unrelenting hostility a hundred years ago of courts in particular toward labor is a story that not only did courts spend the late 19th, early 20th century inventing lots of doctrines to stop organizing that really ought to strike anyone looking at them today as sort of, ’Wow. You really were reaching out there.’
It felt like a very, what we would call an activist court today. I mean, they were really stretching the bounds of the constitution when they went through that.
Absolutely. Absolutely. You know, you have doctrines that really like importing into the constitution. And this is certainly not the words of the constitution, but importing into the constitution ideas like that because of ancient common law that the master has property in the servant’s labor, it’s taking something away from the employer. If you in any way cause their workers to not show up to work by, for example, organizing a strike that you’re taking the property of the employer if you strike. For a country that had abolished slavery already that’s a pretty striking doctrine. And throughout these years, labor made a lot of constitutional arguments actually about how some of what workers were being subjected to was akin to slavery and should be seen as violating the 13th amendment that abolished slavery.
But courts were really not interested in those arguments. Instead, courts were busy throwing labor organizers and strikers in jail even when there didn’t appear to be any obvious statutory crime, and to get back to your question, one of the signature important early populist landmark pieces of legislation that we’re interested in the book is the Sherman Antitrust Act. And this act had an enormous populist movement behind it to try to break up the large trusts, which were like Amalgamated Copper, that we talked about at the beginning, which was itself a pretty seriously large trust. These were corporations that were nation spanning and that were big enough and powerful enough that the populists thought, ‘Wait a minute. They are going to be and they already are having way too much influence on our politics.’
So, the Antitrust Act was in part about politics and it was in part about sort of breaking up and stopping these giant corporations from gobbling up all their competitors and preventing their competitors from flourishing. What happened with the Sherman Act in the hands of the conservative courts of a hundred years ago is they turned it against labor. So, courts held that when workers are, in the court’s view, colluding together to obstruct the business of the employer, that’s a violation of antitrust and you can see some echoes of this idea today. So, labor laws of the 20th century made clear that this antitrust statute does not apply to labor organizing. But still today you see this issue come up when it comes to gig workers and other people who are not employees.
So, if you have a bunch of Uber drivers and they get together to form some kind of association in order to press for better working conditions or something like that, even today, you see companies like Uber try to invoke antitrust law against them and say, ‘Well, all these, you know, individual drivers, they are like companies colluding together in a way that violates antitrust.’ So, you see that sort of echo today, but I think it’s a great example of how the reforms that were really hard won by populists to try to do something about the very powerful corporations that they were confronting end up getting turned against labor organizing.
And the result of all this is that labor organizers largely ended up with the view that they just did not want to have anything to do with courts. It wasn’t that they wanted to get the courts to agree with them. They just wanted the courts to stop. To stop doing anything for them. And so, it’s interesting. When labor finally won real rights and we built a national labor relations law in the 30s, it often… I mean, courts have a role, but the court’s role is pretty limited. And part of what the law aimed originally to do was to create bodies that would adjudicate labor disputes without involving courts too much. And that’s why even today you go to the National Labor Relations Board more than you go to court.
So, you mentioned Citizens United and the way that corporations are deemed to have free speech rights. It floored me to discover that the courts enforced anti-boycott laws or even interpreted that boycotts were just illegal ipso facto or according to the constitution. Can you talk a little bit about the way that the courts stopped labor boycotts and oftentimes even imprisoned members of the labor movement for trying to organize boycotts?
Yeah, you’ve said it well. And, you know, I think the story of how we got to the sort of compromise that we’re all used to today is a convoluted one. Because basically a hundred years ago, the view of most courts and most sort of elite lawyers, the view was that a boycott was essentially some kind of collusion in restraint of trade. It was definitely illegal. They couldn’t always decide exactly under what statute was it illegal, but there were a few different options and courts would find ways to enjoy them and to throw people in jail for things that today sound very radical. But that did back then when the whole idea of labor organizing and picketing and boycotts and all that stuff seemed radical.
The corporate bar and conservatives in general never really made their peace with the way that the National Labor Relations Act, the Wagner Act, in the thirties protected the right to strike and some rights to boycott. And so, one of the things they did was when they took power and were able after World War II to pass the Taft Hartley Act which kind of limited and pared back labor rights, part of what they did was they said, ‘No, we’re actually going to go back to prohibiting certain kinds of boycotts, secondary boycotts.’ And what that means is it’s going to be okay if you want to strike and picket and whatever you’re going to do at your own employer under the conditions provided by law.
But you can’t go help someone else. You can’t go strike and picket. This is what’s called a secondary boycott, for example, you can’t refuse to use parts that are coming from a supplier where they are having a labor dispute over there in support of the workers over there. You have to kind of limit things to your own employer and that helped push labor in the direction that it gradually went in the fifties, sixties, and eventually toward a more just kind of one workplace at a time way of thinking about labor organizing, as opposed to some of the broader ways of organizing, which included secondary boycotts that, you know, more radical and far reaching labor organizing was aimed at in the years before that.
It’s interesting to me though, because it implies that corporations have a right to free speech but labor unions do not.
One of the things about writing this book that is very tricky to wrap your head around is that for most of American history, you know, the First Amendment wasn’t really doing much work in constitutional interpretation. So, all the fights about strikes and boycotts and people picketing their employers and stuff that happened in the late 19th century. They’re not really about free speech at all. The rise of the First Amendment doesn’t even happen until the 20th Century. But now we are really living in the era of the First Amendment is a very, you know, major important part of the constitution. We’ve been there, you know, that way for most of the century now.
And so, it starts to really matter exactly who you give what degree of free speech rights. I’m sure that, you know, right-wing judges even today would say, ‘Well, of course, unions have free speech rights,’ you know. But the question is exactly what do we mean exactly? How far does it extend? Does it count as speech if it disrupts your employer’s operations or, you know, causes their customers to stay away? And what If it is a secondary boycott that affects even someone who’s not your exact employer or what if you’re a gig worker and nobody’s considered your employer?
There’s a lot of areas where there’s room today for courts to side in these cases in ways that either promote or completely undermine labor rights. And, you know, we’re only beginning to see the effects of the current conservative turn in the courts on the shape of labor rights in general and speech specifically.
I feel like I’ve been hung up on the First Amendment idea of it. I think one of the things I want to come back to is that I definitely got the sense that legislation, not just the Constitution, not just the amendments in the Constitution, the text of the Constitution, but key fundamental legislation like the Wagner Act like the Sherman Act are not just pieces of legislation, not just public policy for you. But actual parts of the American Constitution from a thicker sense. Am I understanding that right?
Yeah, and I think that’s an area where my coauthor and I are not alone. There’s been a move that a number of legal scholars have made before us to view some statutes, some even today on the Supreme Court. Justices are openly using the term super statutes, which is a term coined by a couple of important legal scholars who have a book called A Republic of Statutes: The New American Constitution, whose purpose is to show there are some statutes whose nature and scope and intended sweep is to do constitutional work, to kind of build out the constitutional order. The Constitution may have some general guarantees in the text, but maybe we need to build some statutes to actually specify what those mean.
I think a really clear example might be in the reconstruction amendments. We say that there will be equal protection of the laws. Okay. You know, that’s a little broad. And one of the ways that we have built out what that means is by Congress enacting a hundred years later The Civil Rights Act of 1964, The Voting Rights Act of 1965, The Fair Housing Act. And these statutes give shape to the general ideas in the constitution and also imbue them with more specific meanings in different fields. And I think a lot of people today in the kind of legal academic world understand this and a lot of judges understand this.
In fact, at the Supreme Court just this past year you had an interesting back and forth between some of the conservatives and some of the liberal justices about, you know, it’s not about are there super statutes, but which statutes are super statutes. Like everybody basically agrees that there are sometimes these statutes that have a heightened constitutional kind of force to them. And that maybe we should, when we’re looking at when two statutes conflict, you know, we should give more weight to the constitutional work done by the super statutes. The framework statutes they’re sometimes called.
But I think the question that is the trickiest and sometimes the most politically heated is which statutes should we view as doing that kind of work. And, you know, should we elevate something like the Civil Rights Act or should we elevate things like the Religious Freedom Restoration Act or other acts promoting arbitration and things like that? There are different ways you can end up coming out in cases that judges are going to end up coming out depending on which statutes they view as doing this kind of work.
At the same time though it’s not just judges who feel that way. I do think that there’s a sense in the American public that there are certain rights that are not part of the constitution, but are part of formal legislation. Things that we’ve taken to be more than just a policy that America has adopted, but something that’s become a right.
One great example of this would be at a Tea Party rally. So, these are right-wing conservatives. A person was seen holding up a sign that said, ‘Keep your government hands off of my Medicare.’ And it’s a great example because he didn’t see Medicare as something that was part of a government policy. He saw it as a right. One of his constitutional rights. A part of what The American Constitution has become and this is not somebody who’s on the far left. He’s on the far right.
So, I kind of think that there’s a deeper sense even within the American public, even beyond legal scholars. And so, I’d like to come to this question because I think this is key within your work, the idea of how we fight inequality through constitutional politics. Can you help explain how social issues like poverty or wealth inequality also become constitutional questions?
Yes. So, that’s a big question and a great one. I mean the story that we’re telling in the book is really about how were questions about inequality constitutional questions for the long era in which they were and then how did they stop being that? So, poverty is a relatively new lens in American constitutional thinking. In the 1960s, you know, we really started focusing on poverty. But, you know, in the early years of the American Republic and for the first century or more there wasn’t as much focus on poverty, but there was a real focus on questions of distribution and inequality. And I think it’s worth kind of understanding what that focus was because you can see how those constitutional arguments sounded different.
I mean, in the 1960s the argument was poor people deserve special constitutional protection. Kind of like racial minorities or other groups that are oppressed by law need the constitution to protect them. But that’s the kind of new 1960s way of thinking. The old way is more like some of the ideas that we were talking about a few minutes ago, like the constitution has in mind that this is going to be a Republic. What does that require really? And if you look at what the Reconstruction Republicans, for example, thought that the Constitution had to say about the distribution of wealth and inequality, they were in the process of trying to turn the south from an oligarchy of rich white planter aristocrats who owned slaves into a Republic of free citizens.
And, you know, one might imagine, ‘Oh, well, all we have to do is say, the slaves are free now and now they’re free citizens.’ You know, but the reconstruction Republicans understood that that wasn’t going to work. It wasn’t going to be enough. There needed to be a material basis for freedom. You needed land. The radical Republicans thought we should redistribute the land of the plantations to the formerly enslaved black people of the South. And, you know, they were right.
Something like that was needed. You needed schools. You needed money, a way to earn money. You needed a way to earn money independent of your former masters and also the poor white people of the South who had been living under effectively political and economic oligarchy. They needed freedom too. That would come from schools and their own way to get land and earn a living and all that stuff. And so, for the Reconstruction Republicans it was just as clear as day that the economic questions of how is the land and the money and the opportunity to earn going to be distributed. That that stuff was constitutional in nature. And they were busily amending the constitution itself to make sure that the statutes that they were enacting would definitely not be blocked by courts for being unconstitutional.
But, you know, many of the Reconstruction Republicans if you really asked them, they would say, ‘We already have the power. We have the power under the Republican form of government clause in the original Constitution to distribute the land from the plantations to the former slaves.’ And why is that? Well, that’s because if we’re going to have a Republic, we can’t have these oligarchic levels of inequality and destitution and serfdom. As the famous quote that we use a few times in the book, you know, ‘How can a Republic exist in a land of nabobs and serfs? You know, it’s just impossible. And the Reconstruction Republicans understood it.
And so, that idea, that inequality matters because it’s incompatible with a democratic republic. That’s kind of an old idea that falls away in the mid-20th century. That for much of American history, many of our leaders on different sides of big, key debates, different sides of debates about tariffs and monetary policy and all kinds of things like that, they all agreed that the constitution, if it’s going to work, it needs us to have a wide distribution of economic and political power. The question is just how to achieve it.
You mentioned that the Radical Republicans believed they already had the power to do a lot of the projects that they wanted to do such as create schools in the South, even redistribute land, if they were able to get the political power to do it. But I think that almost sells it a little bit short, because the way you describe it in the book, it’s not that they had the constitutional right to do it. Not that they had the power to do it. But they had the obligation and duty to be able to do certain things. That there were affirmative obligations on Congress and on other parts of the government to actually carry out certain policies and to solve certain problems.
And it’s such a different way to think about it because we always think about the constitution in terms of what we can’t do. But the key theme throughout the book is that the constitution doesn’t just say what you can’t do, but also implies obligations for the government to actually accomplish and to try to tackle certain problems.
You’re exactly right. In some ways, this is the most unfamiliar of all of the aspects of kind of the old way of thinking about the constitution that we think should be revived. And part of the story here has to do with, if you think of the constitution as a legal document, whose enforcer is courts and that’s the only enforcer, then really it does seem like it would make sense to think of it, I guess, as a set of constraints, because courts can’t legislate. You can’t go to the courts and create antitrust law or create Medicare or anything like that.
You know, you have to do that through legislation and for most of American history in exactly the way that you just described. A lot of actors on different sides of our politics were making their own versions of arguments that there were affirmative constitutional duties on especially legislators, also sometimes executives and last, the courts, you know, of courts, last of the list to build the institutions that the constitution required. And to legislate, to revise, the economic rules of the game as necessary to implement the objectives that the constitution demanded. And so, when you saw the rise of the Industrial Revolution and all of a sudden you had millions of industrial workers who didn’t own property and who didn’t look like the old Jeffersonian, small farmers who are each going to be Republican citizens by virtue of owning their little patch of land and all that stuff.
For the reformers of the late 19th, early 20th century industrial era, the constitution didn’t just allow, it required that we build a new way for people who are industrial workers to have the kind of economic solid footing and not being dependent on someone else that would let them be Republican citizens. That was the idea. And, you know, throughout the book, the story that we tell about the way that enacting anti-discrimination laws on the basis of race was intertwined with the sort of redistributive part of what reconstruction was about. All of that was a matter of constitutional obligation. And, you know, today sometimes you hear legislators say things like, ‘Well, I’m going vote for this and we’ll let the courts sort out whether it’s constitutional or not.’ And that would have struck most 19th century Americans as a crazy way to legislate.
You know, it’s just not even making sense, because it was on the legislators themselves to judge whether things were constitutional or not. And when you look at, you know, why did Andrew Jackson veto the bank of the United States, he vetoed it, because he said it’s unconstitutional and the constitutional fight is happening in politics, very overtly in politics on all sides. It’s a very kind of mid-20th century idea that instead of having a political fight about these constitutional matters, we’re just going to say, ‘Oh, we’re going to have some experts in robes and leave it to them.’ That idea, it never really worked. It never really made sense. And today with our kind of highly polarized court, it’s kind of more obviously than before not making sense.
But I think it’s helpful for readers to understand that it’s not like it’s always been like that. In fact, for most of our history, the constitution was part of politics, fought about in politics. And that was actually a lot of what politics was about was fighting about how we understand the constitution and the clashing visions of it. And that’s arguably how it should be. If the people through politics are going to have control over the direction our country goes, we should be able to have arguments about it. And, you know, courts certainly have a role, but they’re not the only part of the government that has a role in interpreting what the constitution requires.
In the book, there’s a real skepticism about the courts in terms of their role in interpreting the constitution. And it’s not just because the court has historically been conservative, nor is it because the court has turned conservative. Once again, it’s not the idea that they might give the wrong decision, but the idea that the American people really should be the final arbiters of the constitution. But we’ve been trained to believe that the courts are that final arbiter between these constitutional questions. And so, I wanted to ask you point blank, ‘Can Americans trust the courts to interpret the constitution?’
Well, this is an area where I think my answer today is going to sound a little different than what a lot of Progressives from a hundred years ago, who I like a lot, would say. And that’s for this reason. So, a hundred years ago Progressives faced a court that was as right-wing as the court today. And that was thwarting a lot of measures that they thought constitutionally not only allowed, but required. They thought that labor law and antitrust were not only constitutionally permitted, but were necessary. And that we really were going to have a lot of trouble in constitutional terms, if the court kept forwarding these measures. And so progressives began to argue for straight up taking power away from the courts in a way that goes further than I think would be wise today.
Part of the difference is that in the 20th century after the court retreated from striking down the New Deal and the Warren Court era began to build the modern edifice of rights, the Court began to say, ‘You have to have desegregated schools. You have to have some rights for prisoners.’ You know, everybody knows the Miranda warnings. There’s a whole sort of body of law that protects a lot of people who are not very popular, prisoners being the most obviously unpopular of anybody. But also there’s plenty of protections for religious minorities that don’t act like the majority or protections for political speech by dissenters and people who are not having a lot of power. And who as a kind of liberal, I still feel the pull. Courts are needed to protect those kinds of rights of dissenters.
And I do think criminal procedure is the most obvious area where, if you just left it up to the American people, there would not be a lot of procedural rights for people accused of crimes. Most likely, however, and it’s a big, however, the Progressives were mostly right in their critique of courts who were coming in and destroying federal laws that were aimed at promoting equality of opportunity. And they were aimed at, you know, rebalancing the political economy away from the most wealthy and powerful interests and toward the people. And I do think that you need to have a kind of constitutional politics where the court is not the only word. Where Congress has ways to come back and provide some checks against the court.
Because I don’t think we can trust, to get back to your original question, I don’t think we can trust the courts today to faithfully interpret the constitution in all or even most of the most highly contentious areas where the court seems to be implementing the agenda of a minority of Americans, a big minority of Americans. But still definitely a minority who through the Federalist Society has sort of implemented a set of legal and jurisprudential views in the courts nobody legitimately elected and chose that those would be the views that would govern our whole country. It was much more of a chaotic process of Senate hardball that led to where we are now.
And I think what we need to imagine is a kind of constitutional politics in the future where it’s not like we say, ‘Courts get out. You don’t have a role in interpreting the constitution.’ But rather we have courts doing their job and Congress and the President doing their job which includes operating as a check on the courts when necessary. Now there are a lot of different forms that could take. A lot of different ways that could look from threatening to add more justices, to threatening to take away certain powers that the court might have, or changing the role of the court in reviewing some kinds of pieces of legislation.
There’s a lot of kind of nitty gritty questions here about exactly what do you want the Congress to do if it’s going to check the court? But the main thing is just for us to get to the point where we do view it as legitimate for actors besides the court to have a view about constitutional question. And if the court goes too far from what the American people want, the people and their representatives have some recourse, because the hope is that like in the 1930s, when FDR threatened to pack the court and he did not ultimately pack the court, but the credible threat was very important because then as now you had a court that was far out of step with what the American people actually want and expect and think would be a fair interpretation of our constitution.
And the fact that you had this threat hanging over the court, caused the court to change course. And I think that’s similar to what we ultimately need today. I don’t think we can trust the court if the court is completely unchecked and unfettered to do the right thing. But I do think that the justices on the court could be persuaded to change course without carrying out a threat of adding personnel. I just think you need the judges to feel that constitutional politics is bigger than the nine of them and that Americans and their representatives legitimately have views about the constitution. And that if courts go too far in one direction or another, there is a check.
Well, it’s really a great book. It’s The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy. It’s a little bit longer than most, but it’s actually a quick read. Mainly because I think people are going to find that it’s really fascinating and it’s engaging and it draws you in. It doesn’t read like an academic book, even though it’s obviously very professional and scholarly and academic at the same time. So, thank you so much for writing it.
Well, thank you. I so appreciate your saying that because that kind of reading experience is like exactly what I was hoping kind of going for there. And yes, hopefully everyone has that reaction to it. Thank you.
The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy by Joseph Fishkin and William E. Forbath
Follow Joseph Fishkin on Twitter @joeyfishkin
Learn more about Joseph Fishkin at UCLA Law
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