How the Left Lost the Constitution

Since the Progressive Era, liberals have been convinced that the courts and the Constitution are somehow autonomous from politics, setting its boundaries. The Right, in the meantime, has engaged in a concerted effort to refashion the federal bench in its image.

A new book argues that the US Constitution is an underutilized asset in the Left's fight against social and economic injustice. (Getty Images)

When nineteenth-century Radical Republicans advocated for the abolition of slavery, they coupled their demands for racial equality with pleas for distributive equality. The political economy of the South, reformers at the time argued, was undergirded by an undying “spirit of oligarchy.” In order to live up to the ideals of the newly instituted Reconstruction Amendments, concentrations of wealth and power, as one black Union soldier declared, needed to be moved to the “bottom rail” from the “top.”

As law professors Joseph Fishkin and William E. Forbath write in their timely new book, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy, this period in American history “brought together for the first time in the mainstream of American political life three core principles” — anti-oligarchy, a broad and accessible middle class, and inclusion — central to what the authors refer to as the “democracy-of-opportunity tradition.” This tradition places “affirmative distributional duties on government” and considers the needs of “all Americans in the economic and the political spheres.”

Over 150 years after the abolition of slavery, as the nation deals with the repercussions of a second Gilded Age and wrestles with similar questions of wealth, redistribution, equality, and democracy (all in the face of a conservative supermajority on the high court), Fishkin and Forbath’s accessible work serves as both history lesson and political playbook, offering the Left an underutilized — and perhaps counterintuitive — tool in the present-day fight against social and economic injustice: the Constitution.

Of course, the use of the founding document to justify certain goals is nothing new. Both the Left and the Right have drawn on the Constitution as a means to their respective ends for centuries, and Fishkin and Forbath’s nearly five-hundred-page work offers a richly detailed account of that history. (And before anyone charges them with “originalism,” the authors make clear that they revisit history not because they think it is “binding” but rather because they believe certain principles from the nation’s past have “independent merit and stand in need of reinvention today.”)

“Affirmative Constitutional Duties”

Since the founding era there has been a broad tradition of framing the Constitution as a document that calls on the government to fend off oligarchy and ensure broadly shared wealth. One need only look to the earliest debates surrounding the nascent republic and how it should be governed for proof. This is where Fishkin and Forbath find some of their richest material.

“The basis of a democratic and a republican form of government,” Noah Webster, of dictionary fame, proclaimed during America’s revolutionary period, is “a fundamental law favoring an equal or rather a general distribution of property.” Webster is just one of many in the line of early American thinkers whose pleas for resistance to “aristocratic forms of privilege” Fishkin and Forbath revisit, tracking their attempts to build and sustain a system of democratic governance. It is a moving and effective message in today’s age not of kings and queens but Bezos and Musk.

The question at hand for the founders: how was the preindustrial nation to achieve a system of broadly shared resources? Was it through a Hamiltonian central government or a Jeffersonian small-scale order? The ideological split ended in a compromise known as the Bill of Rights. The first ten amendments acted as a check on Hamilton’s plea for a strong central government, and, as the authors write, from then on “no mainstream party ever again openly proclaimed itself the party of elite rule.” In the century after the founding, lawmakers tied their distributional rhetoric with legislative action, and it is here that today’s left can learn a valuable lesson.

For legislators in the early American period, “‘the Constitution’ was at once a text and a tradition and, at the same time, a system of government whose powers, purposes and precepts one implemented over time, through political and legislative action.” Take, for example, the Whigs’ response to Southern Democrats who argued that the protective tariff violated Congress’s power under the Constitution (one of the many primary-sourced debates the authors draw on). Instead of capitulating to a restrictive view of the founding document, the Whigs used it to their advantage. As Fishkin and Forbath write, quoting legislators of the period:

Article I’s enumerated powers were “not only grants of power but trusts to be executed” and “duties to be discharged for the common defense and general welfare.” The “non-use[] of the power” was “a violation of the trust.” ‘[T]he words common defence and general welfare” were the “expositors of the purpose for which Congress are expressly enjoined TO PROVIDE.” And where the “general welfare” was clearly better served by the exercise of enumerated power than by its “non-use,” Congress had not only the power but the constitutional duty to act.

This focus on Congress’s “affirmative constitutional duties” has all but been supplanted today by our “highly judicialized constitutional culture,” to our collective detriment. It was this sense of affirmative duty, as Fishkin and Forbath effectively demonstrate, coupled with elements of racial inclusion, that ultimately ushered in Reconstruction-era reforms (the Freedmen’s Bureau granting land and other practical aid to formerly enslaved persons, for example), and it was these reforms that underscored the connection between a democratic economic structure and a democratic political structure.

Gilded Age, New Deal, and a Mistaken Settlement

It is in the discussion of the first Gilded Age and the New Deal that followed — along with the cast of players involved in this generation-defining battle between capital, labor, and the role of the state — where Fishkin and Forbath are at their sharpest and their arguments the most relevant. For it is in this period in which the Left severed the link between politics and the Constitution — the effects of which are in play to this very day.

At the end of the nineteenth century, as the nation moved from a patchwork of colonies to an unfurled quilt of cities and vast frontiers, a system of “corporate capitalism” emerged, and with it a class of “propertyless wage earners.” As Fishkin and Forbath write, fundamental questions were at stake: “Was ‘the wage system of labor’ compatible with ‘the republican system of government? Were the new giant corporations consistent with the pledge of equal rights? Or did these unprecedented concentrations of wealth and power mean a slide into oligarchy?”

One answer came in the form of “Lochnerism,” a classic economic liberalism defined by its aversion to special privileges and disruptions to the common-law doctrine of “freedom of contract.” It was a hands-off, laissez-faire response to industrialization that prioritized “judicial supremacy in constitutional interpretation.” Fishkin and Forbath’s revisitation is especially helpful given the Roberts Court resurrection of Lochnerian ideals. The other answer prioritized just the opposite: state interference in the ever more unequal American marketplace, casting “legislation and the administrative state, rather than the federal courts, as engines of constitutional political economy.”

The latter worldview found a champion in Franklin D. Roosevelt and the New Deal. “New Dealers,” as Fishkin and Forbath write, “championed their legislative agenda in terms of implementing their new social-democratic ‘economic constitutional order’. . . . There would be new statutes . . . new protections for Americans’ material security . . . all of it in the name of vindicating the promises of the Constitution and Reconstruction Amendments.”

After the Supreme Court struck down a slate of FDR’s measures, he introduced a court-packing bill that would eventually spur the famous “switch in time” to save nine. While the move secured a temporary victory for the president and his party, it also ushered in a one-sided “settlement,” one in which federal courts deferred to Congress on social and economic measures, shifting their focus instead to the enforcement of individual rights and civil liberties. Liberals “became enamored of the idea that the Constitution is autonomous from politics, separate from politics, setting the boundaries of politics.” This is a one-sided view, for, as Fishkin and Forbath point out, “Opponents of New Deal economic policy never gave up on the courts.”

Crafting a Rival Vision

The last two chapters of Fishkin and Forbath’s book offer a clear narrative of where the Left went wrong, how the Right filled the void, and what progressives should do to reclaim the “lost democracy-of-opportunity tradition.”

By the 1960s, as Fishkin and Forbath explain, “it became unimaginable to mount a progressive constitutional challenge to the courts,” because the liberal Earl Warren was chief justice and “the Supreme Court became the . . . first mover on civil rights, the politics of racial inclusion became bound up with a politics of judicial supremacy.” Other issues once central to the progressive political project — labor, redistribution, etc. — “lost their constitutional character.”

Other factors led to the shift toward a “more court-centered constitutionalism.” One in particular is worth highlighting, for it often gets too little play in popular discussion surrounding the court: the separation of economics from politics. In the postwar years, “economic matters, like constitutional ones, came increasingly to be seen as a domain best governed by those with special expertise.” Scientific expertise reigned. Political economy as a discipline was on the outs.

The story of how this occurred, the authors admit, is complex. But Fishkin and Forbath do not shy away from exploring certain causes. The Progressive Era’s focus on “competent management” by “apolitical professionals” played a role. So did the Cold War. The era’s “brutal purges of communists, socialists and other radical economic thinkers” altered the shape of pressing conversations surrounding public policy “where they had long been important participants — indispensable ones, as far as the democracy of opportunity is concerned.”

Ultimately, this shortsighted view of the courts and the Constitution on the part of the Left jeopardized one pillar in the democracy-of-opportunity tradition — the focus on concentrations of economic power — and undermined the entire trifecta. And while the Left settled into its postwar judicial lull, the Right was engaged in a concerted effort to refashion the federal bench in its image.

And today, Fishkin and Forbath argue, we face the consequence of a Supreme Court “lurching right.” The authors discourage moderate court reform measures draped in nonpartisanship (i.e., Joe Biden’s executive panel on the judiciary) and instead promote a sort of movement politics bent on making a “case against the Court’s constitutional politics” and the “visions that animate” the conservative supermajority and their ideological allies. They call on activists to construct a rival constitutional, political, and economic landscape in the vein of Republicans during Reconstruction and Democrats during the New Deal.

And as a testament to the strength of their work as a guide for those engaged in the modern judicial reform movement, the authors offer specific instructions to revive the democracy-of-opportunity tradition, all while curbing the power of the Roberts Court. One call feels particularly relevant: a more direct repudiation of the new First Amendment Lochnerism in cases dealing with campaign finance and labor law. To challenge the court’s current jurisprudence, they suggest using the lens of “constitutional political economy” to strengthen labor’s bargaining power and disrupt the current status quo connection between financial worth and political clout.

Taken as a whole, Fishkin and Forbath’s work amounts to an epic repudiation and refashioning of the core tenets that have guided liberal judicial politics for a generation. It should act as a sort of manifesto for those in the fight to craft new tenets, to create a more just and equitable society where the people realize the full promise of their Constitution.