By EVAN BERNICK
Review of The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy, by Joseph Fishkin and William E. Forbath
Cambridge: Belknap Press of Harvard University Press, 2021
One of the most remarkable moments in recent Supreme Court history sees Justice Samuel Alito echoing Karl Marx.
It happens in Alito’s opinion for the Court in Janus v. AFSCME, holding unconstitutional the collection by public-sector unions of “agency fees” from non-union employees who benefit from union representation. Explaining why these fees—even if reserved for employment-related services like collective bargaining rather than political advocacy—constitute “compelled speech,” Alito notes that the “ascendance of public-sector unions has been marked by an increase in public spending” on “wages, benefits, and pensions.” Alito infers from this development that public-sector bargaining is an inherently political activity and thus that agency fees compel non-union employees to subsidize “private speech on matters of substantial public concern.”
Marx would have wholeheartedly agreed that unions are inherently political. Of course, for Marx, this was a reason to value them, not to gut them. But the liberal Justices who dissented from Janus chose instead to defend a distinction between the “economic” and “political” activities of unions that would have seemed illusory, not only to Marx but to architects of New Deal-era labor legislation and Progressive jurists like Justice Felix Frankfurter. Justice Elena Kagan’s principal dissent was primarily concerned with the majority’s low regard for precedents affirming the economic-political distinction—a distinction that Frankfurter once presciently disparaged as “pre-Victorian.” Unlike Frankfurter, Kagan did not understand, much less defend, agency fees as a means of promoting workers’ constitutional interests in resisting domination by their bosses.
Joseph Fishkin and William Forbath’s monumental The Anti-Oligarchy Constitution presents Janus as illustrative of a thoroughgoing and debilitating deficit in left (broadly construed) politics. The book’s ambitions are vast; its theoretical sophistication and attention to historical detail never fails to impress; and at 632 pages, its pace never flags. Fishkin and Forbath (“F&F”) seek to reorient the left towards the Constitution by framing the Constitution an instrument of political economy—a means of organizing an economic order through politics. The book is staggeringly successful, and it is engaging and illuminating even when it is not entirely persuasive.
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Among F&F’s most important achievements is welcoming readers into a body of thought and discourse that might otherwise seem disorienting and obscure. “Political economy” at first appears to smush together subjects that are conventionally kept separate. F&F detail why the strict separation of economics and politics is a relatively recent development, and argue for the analytical and political utility of rejecting it.
As F&F summarize, the study of political economy held sway from the eighteenth to the early twentieth centuries. It encompassed a range of inquiries that are now regarded as the province of distinct disciplines, including not only politics and economics but anthropology, psychology, and law. Adam Smith, David Ricardo, and Karl Marx were all political economists who concerned themselves with “currencies, prices, wages, and rents; taxation; the distribution of income and wealth; production and trade; relations between social classes and between capital and labor; industrialization and technological change; the organization of enterprise; the distribution of political power; monopoly and antitrust; and the policies governments ought to adopt in relation to all these matters” (365).
The authors contend that arguments about political economy in the United States have always been framed in constitutional terms; that those who refuse to play the game of constitutional argumentation can expect to lose; and that there are resources available to the left that can increase the odds of victory. These resources come from an anti-oligarchy tradition that F&F trace back to the founding of the United States. This tradition finds expression in (among other political formations) Jeffersonian agrarianism (39-44), Jacksonian democracy (71-77), Reconstruction republicanism (109-32), and New Deal liberalism (251-317).
Anti-oligarchy is characterized by three convictions (8-10). First, concentrated economic power (and corresponding wealth inequality) leads to concentrated political power and thus threatens democracy. Second, the existence of a robust middle class that can enjoy “material comfort and security, along with the wherewithal and opportunities to make a life with value in one’s own eyes” is important to democracy. Third—and, as F&F acknowledge, expressed only “fitfully” in the tradition—the middle class should be open and inclusive across race, gender, and other identities.
It is hard to think of a more opportune moment to revisit the anti-oligarchy tradition. F&F’s book arrives in the midst of interrelated political, economic, social, and ecological crises that have generated widespread dissatisfaction with a neoliberal status quo of inequality and precarity, as well as with its defenders. Leading U.S. politicians speak in anti-oligarchical terms; Lina Khan, a leading proponent of a revival of an approach to antitrust that is highly attuned to the political power wielded by large corporations, chairs the Federal Trade Commission; and an ascendant law-and-political economy (“LPE”) movement has focused attention on the ways in which constitutional law has enshrined structural inequality and economic power. Many LPE scholars are practitioners of what Amna Akbar, Sameer Ashar, and Jocelyn Simonson have termed “movement law”; their work is informed by and put forward in solidarity with grassroots movements for radical political, economic, and ecological change, including Occupy Wall Street, the Movement for Black Lives, the Red Nation, Mijente, and the Sunrise Movement.
To propose that drawing upon an anti-oligarchy tradition would be useful to the left under these circumstances isn’t likely to stir controversy. Where F&F do break controversial ground is by articulating a left agenda in which constitutional argumentation plays a central role. F&F lament what they call the “forgetting” of constitutional arguments grounded in political economy.
Why were these arguments forgotten? In F&F’s telling, the forgetting was in part a bitterly ironic consequence of the New Dealers’ success in litigating political-economic legislation before an initially hostile Supreme Court. After holding unconstitutional the National Industrial Recovery Act and important components of the Agricultural Adjustment Act, the Supreme Court changed course and upheld the Fair Labor Standards Act, the Social Security Act, and the National Labor Relations Act on the ground that (as F&F put it) this legislation addressed “business about which the Court’s Constitution was silent” (316). The New Dealers won the immediate battle over the constitutionality of legislation that was designed to transform the political-economic order. But F&F argue that they did so at the price of impoverishing left constitutional discourse.
Not that the New Dealers were entirely to blame for the forgetting. The forgetting was a function of (among other developments) the subsequent rise of Court-centered constitutionalism during the civil rights era that marginalized the constitutional duties of Congress to promote anti-oligarchy (353-62); the eclipsing of political economy itself by the discipline of economics, which prioritized “scientific” problems like economic growth, aggregate demand, and inflation while neglecting “political” questions like the distribution of wealth (363-72); and the silencing of political economy talk during anticommunist purges of “universities, government, the mainstream of American politics, and even the mainstream of organized labor” (372-74). Today, the left is boxed in by an expanding array of decisions through which a conservative Court, accepting arguments from conservative legal and political actors who have never accepted the New Deal “settlement,” has forged what Jedediah Purdy has termed “The Bosses’ Constitution.” And it lacks an effective constitutional response.
F&F would not have the left make use of the Constitution in the same way as has the right. They urge that the left follow the lead of earlier anti-oligarchical reformers and direct most of their constitutional attention not towards the courts but towards Congress and administrative agencies. Their anti-oligarchical proposals include the repeal of the NLRA’s ban on secondary boycotts, a wealth tax, the creation of new public banks that have access to the Federal Reserve, and antitrust enforcement that is more willing to block mergers and break up monopolies and oligopolies (419-84).
What makes the political-economic arguments that F&F uncover and advance constitutional? Public lawyers conventionally distinguish between “small-c” constitutional arguments about the broader political order and “big-C” arguments about the meaning of the document under glass at the National Archives. F&F resolutely resist this distinction, both because they find that participants in the anti-oligarchical tradition did not draw it and because they find it to be of limited practical utility.
Take, for example, radical Republican Senator Charles Sumner’s arguments in support of his proposed draft of what became the Civil Rights Act of 1866 (116-17). Besides guaranteeing the equal enjoyment of basic civil rights to make contracts, acquire property, and testify in court, among others, it prohibited race-based disenfranchisement. Sumner’s arguments for Congress’s constitutional power to prohibit racial qualifications for voting included discussion of Article IV’s Guarantee Clause, which provides that the “United States shall guarantee to every state in this union a republican form of government.” Of a government that would tolerate “permanent and insurmountable” qualifications for voting, Sumner declared, “Call it Oligarchy, call it Aristocracy, call it Caste, call it Monopoly; but do not call it a republic.”
Was Sumner’s a small-c or large-C constitutional argument? On the one hand, he demands fidelity to “the proper meaning of the text”—that is, the Guarantee Clause. On the other hand, it beggars belief that Sumner would have declined to make an argument of this kind had the Constitution lacked a Guarantee Clause. On F&F’s account, this is a question that needn’t be answered; the left shouldn’t be wedded to any sharp distinction between small-c and large-C argumentation. What is important is that the left engage in some identifiably constitutional argumentation when talking about oligarchy; forgetting to do so has been costly. F&F are here to help us remember.
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One of the risks of mining the past for useful history is falling into motivated reasoning. If you want to find something that aids your cause, you’ll find it—but you may neglect other things that don’t fit the story that you think people need to hear. Motivated reasoning isn’t just a problem for those who, in a pinch between truth and utility, will “print the legend.” It can undermine the causes that one is attempting to aid by moving the battle onto unfavorable terrain, where one is likely to lose; or, if one must fight on that terrain, squandering resources that would be better spent preparing for another battle elsewhere.
F&F are scrupulous in reckoning with the deeply troubling features of the tradition that they uncover. Consider their discussion of Jacksonian democracy. They identify the Jacksonians as the “first modern mass political party” (78) and describe how Jackson centered “the realities of class divisions and the incompatibility of political democracy and economic oligarchy” (73). But they also acknowledge that Jacksonian attacks on banking interests and demands for political equality, including the ballot, rested upon an exclusionary foundation. Jacksonians were interested in political and economic equality for white males (76-77). They regarded the subordination of women, Black Americans, and Native people as essential to the development of a middle class that looked like them.
The anti-oligarchy tradition is laden with such baggage. Populism’s initial egalitarianism and interracial solidarity devolved into the demonization of Black Americans for the sake of white working-class votes (182-88). The New Deal accommodated Jim Crow (300-02). Indeed, the only truly inclusive anti-oligarchy movement that (briefly) held the reigns of political power in F&F’s narrative is radical Republicanism, which for a time made real what W.E.B. Du Bois termed “abolition democracy.”
But abolition democracy was crushed, for reasons that had little to do with constitutional ideas. As Du Bois described—and F&F recount—Reconstruction collapsed under the weight of southern racial terrorism, northern elite alarm at mass strikes, and Republican exhaustion. Reconstruction formally ended in 1877, when Republican President Rutherford B. Hayes took office after a contested election in 1876 in return for a promise to withdraw federal troops from the former Confederate states and tolerate racial apartheid (179-32).
This does not mean that we should forget either the movement-building that made abolition democracy possible or its successes. The Thirteenth, Fourteenth, and Fifteenth Amendments are monuments to the success of abolitionism—a once-marginalized movement that became hegemonic in the form of the Republican Party. And they served as instruments of some of the greatest instances of mass liberation that the world has seen. Abolition democracy is continuing source of inspiration to left activists today who seek to realize its full promise by dismantling carceral institutions, collectively referred to as the “prison-industrial complex,” that continue to perpetuate racial subjugation.
What the limitations of Jacksonian democracy (and other anti-oligarchical formations) and the destruction of abolition democracy do mean is that constitutional ideas and argumentation, even if necessary, are insufficient for the realization of anti-oligarchical goals. Political economy itself can help us understand why. We need not regard ideas as epiphenomenal superstructure that is determined by a material base. But even in F&F’s own narrative, political positions and decisions—even when expressed in constitutional terms—appear to be closely associated with material interests that are as familiar to public-choice theorists as to Marxists. Abolition democracy ascended with the convergence of interests between formerly enslaved people, on the one hand, and northern industrialists who sought to break the political-economic power of the southern planter oligarchy, not to end oligarchy, on the other. It collapsed as those interests diverged. Put another way, it’s precisely because F&F are such scrupulous historians that one is left perhaps less optimistic than the authors about the utility of the constitutional ideas and arguments they uncover.
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If there is a weakness in F&F’s history, it lies in the book’s treatment of anti-capitalism. Anti-capitalist political-economic arguments played a pivotal role in the ascendancy of anti-oligarchy during the late nineteenth and early twentieth centuries. The Socialist Party of America and, later, the Communist Party, popularized these arguments, especially in connection with Eugene Debs’s campaigns for President.
These arguments defy categorization as either “constitutional” or “anti-constitutional”—Debs frequently invoked the Founders precisely to inveigh against the oligarchical features of their handiwork. They are, however, easily categorized as radical. Aziz Rana has pointed out that the 1912 Socialist platform demanded sweeping revisions to the constitutional system, including “the abolition of the Senate and of the veto power of the President,” “the election of the President and Vice-President by direct vote,” “the abolition of the power usurped by the Supreme Court of the United States to pass upon the constitutionality of…legislation enacted by Congress,” and “national laws to be repealed only by act of Congress or by a referendum vote of the whole people.”
These arguments and their proponents were then driven out of public discourse and life by Democratic presidents determined to resist Republican charges of communist subversion. In 1940, President Franklin Delano Roosevelt removed leftists from the NLRB; later, President Harry Truman instituted a federal loyalty apparatus that institutionalized anticommunism. Landon Storrs has documented how thousands of left-leaning employees were purged from the civil service, inducing a rightward shift in post-New Deal liberalism. This was not an environment hospitable to constitutional or any other arguments for democratizing control over the means of work and production. As Jeremy Kessler has put it, these arguments were “not forgotten but purged.”
F&F know this history. They recognize how Debs’s Socialist Party “call[ed] for radical revision of inherited constitutional structures and institutions” in the name of the Constitution and the Declaration of Independence (246). They describe how the purges effectively “banish[ed] the social-democratic thrust of New Deal political economy” (373). But radical, anti-capitalist, arguably-anti-constitutional reform and suppression play a comparatively minor role in their narrative. The problem is not omission but diminution and a bit of shoehorning.
F&F’s diminution of anti-capitalism’s influence on anti-oligarchy is unfortunate in two respects. First, at a moment of ascendant anti-capitalism on the left, F&F miss an opportunity to center anti-capitalist contributions to a predominantly capitalist tradition. Anti-capitalist readers might wonder whether a tradition that centers the development of a robust middle class—a concept that only makes sense within capitalism!—has much to offer. Anti-capitalist formations that enriched the anti-oligarchic tradition do appear in F&F’s narrative, but you need to squint a bit to see them.
Second, the shoehorning of suppression into a narrative of forgetting reinforces an impression conveyed elsewhere that the authors think that deep, enduring political-economic problems in the U.S. might be meaningfully redressed if only the left would make the right kind of arguments. Talking again of Janus, F&F suggest that, had union lawyers cast organized labor as a “countervailing institution against economic and political oligarchy” and union dues as a means of ensuring their continued vitality, they could have “sent a clearer signal to the political branches and the American people” about the stakes (447).
Maybe. But hard-wired features of the Constitution—a malapportioned Senate and an effective double super-majority requirement for legislation (counting not only passage by both Houses but also the overcoming of a Senate filibuster)—would make any anti-oligarchical response to any given Supreme Court decision extraordinarily unlikely. When Janus was decided, President Donald Trump was in the White House, tweeting enthusiastically in support of the Court’s 5-4 decision. The Senate was controlled by Republicans, led by Mitch McConnell. It was McConnell’s refusal to consider outgoing President Obama’s Supreme Court nominee Merrick Garland that made it possible for newly appointed Justice Neil Gorsuch to cast the deciding vote in Janus.
The hard fact of the matter is that hard-wired features of the U.S. Constitution make politics extraordinarily hard for the left. And that is no accident; there’s a political-economic explanation for the political economy of the Constitution. The Constitution was designed in part to raise the costs of redistributive legislation at the national level, outright prohibit certain forms of it at the state level, and filter popular will through a variety of elite-controlled institutions. Charles Beard may have overstated his case for the Constitution as an instrument of ruling-class rule. Still, more careful and nuanced accounts of the interests at play and the compromises made at the Philadelphia Convention tell a story in which the Constitution was forged by political and economic elites and in crucially important, enduring respects reflected their values, perceptions, and priorities. Fishkin and Forbath know this, and they say it (49-63). But the sheer depth of the structural difficulties confronting the left, once acknowledged, risks being forgotten amidst the stirring anti-oligarchical rhetoric that they uncover.
Once you get the constitutional political-economy train going, it might not stop short of constitutional revolution. So long as “that’s unconstitutional” is a conversation stopper, the left will be fighting uphill, regardless of how they choose their words. And they must price into their choice of words the risk that centering constitutional argumentation in one setting will redound to their disadvantage in another. Tactical toggling between constitutional and anti-constitutional argumentation might be the better strategy than choosing one or the other.
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Finally, I cannot resist expressing a worry about F&F’s largely negative treatment of the courts. F&F do not take the position that constitutional litigation is useless or counterproductive. But they do seek to direct the left’s attention elsewhere, in light of what they regard as a misplaced, post-Brown emphasis on the judiciary and their finding that “more often than not, over, the long arc of American history, courts have used their power to protect economic and political oligarchy” (486).
I worry that they’re overcorrecting. Litigation has served as an important part of resistance to some of the most odious forms of oligarchy in the nation’s history. The lens of political economy enables us to view legislation like the Fugitive Slave Act of 1850 as a means of consolidating a racist economic order that depended upon the racialized subjugation and exploitation of forced labor. Daniel Farbman has documented how abolitionists used litigation, with surprising success, as a means of resisting the operation of the Fugitive Slave Act and building a political movement that would eventually dismantle it. As Dorothy Roberts and Jocelyn Simonson have catalogued, modern forms of this kind of resistance can be found in prisoners’ rights litigation and the use of “courtwatching,” participatory defense, and community bail funds, through which community groups can grind the gears of a carceral punishment system with roots in slavery. This agonistic use of the courts to contest state power and build constituent power runs the risk of indirectly legitimating the system; but it is a risk that has in freedom struggles past and present often proved worth taking.
These criticisms notwithstanding, The Anti-Oligarchy Constitution provides counsel to the left that ought to be well-taken. Together with Aziz Rana’s forthcoming The Rise of the Constitution, Fishkin and Forbath’s work will contribute to an ongoing, important argument on the left about the costs and benefits of accepting the Constitution’s hegemonic influence on U.S. political discourse and possibilities. It may be that left politics can draw strength from both pro- and anti-constitutional argumentation; that rather than wholesale repudiation or acceptance the left should engage in retail evaluation of whether Constitution-talk will serve or undermine its projects. Certainly, readers across the political spectrum will benefit from engagement with The Anti-Oligarchy Constitution and the tradition that it recovers and enriches.
Posted on 12 May 2022
EVAN BERNICK is Assistant Professor of Law at Northern Illinois University College of Law. He is the author, with Randy E. Barnett, of The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (Belknap 2021).
