[We must reject the legal liberalism that attempts to cordon off
constitutional questions from democratic politics.]
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MAKE PROGRESSIVE POLITICS CONSTITUTIONAL AGAIN  
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Joseph Fishkin William E. Forbath
May 23, 2022
Boston Review
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_ We must reject the legal liberalism that attempts to cordon off
constitutional questions from democratic politics. _

Supreme Court of the United States., Jarek Tuszyński / Wikimedia.

 

Two years of a devastating pandemic have exposed deep cracks in the
U.S. political and economic order. After decades of economic policies
that hollowed out the middle class, shocking numbers of Americans
lacked the economic means to withstand COVID-19’s disruptive force.
But the pandemic also demonstrated that those decades of economic
policy are not set in stone. For a brief moment, before collapsing
back into familiar patterns of polarization and obstruction, the
federal government stepped in with the money to rescue vast numbers of
Americans from economic ruin.

The Democrats are, for now, about two Senate votes shy of enacting a
series of major reforms, from addressing climate change to protecting
voting rights and making real progress in the fight to rein in the
outsized political and economic power of the rich. But even assuming
that the Democrats manage to enact such measures—overcoming our
system’s many antidemocratic veto points, such as the Senate
itself—the toughest challenge is still to come. The looming risk is
that all such reforms may be unraveled by our archconservative Supreme
Court. The Court has made the Constitution a weapon for selectively
striking down legislation the justices disfavor. They are highly
likely to wield it against laws that aim to repair economic or
political inequality.

The Court can do this with near-total impunity today because many
Americans accept the idea that the Supreme Court is the only
institution with any role in saying what the Constitution means.
Congress and other elected leaders, at best, can fill in the few
blanks that the courts have left open. Rather than contesting the
Court’s power to make highly questionable judgments about the
meaning of the Constitution, most liberals today defend the Court’s
authority. Their top complaint about the current Court is that it
doesn’t have sufficient respect for its own precedents, which
today’s majority is fast overturning as it lurches further right.

Rebuilding a powerful progressive movement with a central place for
organized labor requires forging a new understanding of the
constitutional necessity of countervailing power.

Mounting an effective challenge to our conservative juristocracy
requires understanding how we got here. It is not just that the right
out-organized the left. On the contrary, liberals have contributed to
conservatives’ success by imagining constitutional law as an
autonomous domain, separate from politics. Liberals have likewise
imagined that most questions about how to regulate the economy are
separate from politics, best left to technocrats. These two ideas have
different backstories, but both were at the center of a mainstream
liberal consensus that emerged after World War II. For postwar
liberals, constitutional law was best left to the lawyers, economic
questions to the economists. These two key moves sought to
depoliticize vast domains that had previously been central to
progressive politics. Together they tend to limit the role of the
people and the representatives they elect.

Conservatives never accepted either of these moves. They have a
substantive vision of a political and economic order they believe the
Constitution requires, and that vision translates easily into
arguments in court—arguments against redistribution, regulation, and
democratic power. Inspired by their forebears a century ago in the
Lochner era, when conservative courts routinely struck down
progressive reforms for violating protections for property and
contract, today’s conservatives have methodically installed movement
judges who reliably advance those goals. And they are succeeding.
Witness the litigation over the Affordable Care Act (ACA). Although
the law narrowly survived, conservatives outside and inside the courts
embraced novel arguments that Congress had transgressed constitutional
limits on its powers. Liberals disagreed, offering arguments that the
ACA was _permissible_. But they never made the argument their
progressive forbears might have made: that something like the ACA
is _required _to meet our constitutional obligations.

In response to the right’s decisive politicization of the courts,
some liberals and progressives have proposed judicial reforms aimed at
restoring an imagined past of judicial nonpartisanship. But that
golden age is a myth. Constitutional confrontations over rival visions
of our political and economic future are inevitable; courts
are _always_ engaged in such contests. The problem is not that the
judiciary has a vision of constitutional political economy. The
problem is that that vision has strayed much too far from the views of
the elected branches and the American people.

Bringing the Court back in line will be a challenge. Fortunately we
have precedents to draw from. For the first two-thirds of U.S.
history, generations of reformers—from Jacksonian Democrats to
Reconstruction Republicans to New Deal Democrats—made arguments in
what we call the _democracy-of-opportunity_ tradition. These
reformers argued that the Constitution not only permitted but
compelled legislatures to protect U.S. democracy in the face of
oligarchy and (later) racial exclusion. The Constitution, in this
tradition, not only permits, but compels, the elected branches to
ensure the broad distribution of power and opportunity that are
essential to a democratic society.

Reformers made these arguments in the teeth of hostile courts
determined to impose court-made doctrines to shield elites from
democratic encroachment. But the elected branches could and often did
challenge the Court’s interpretation of the Constitution, especially
about the trajectory of the nation’s political economy—the
political decisions that shape the distribution of wealth and power
through our laws and institutions.

This vision is worth retrieving today. Some progressives will think
this is a misguided, even dangerous, proposal. If constitutional law
is the domain of the courts, and courts are dominated by
conservatives, why should we risk “re-constitutionalizing” our
claims about political economy? Why, in short, should progressives
make our politics constitutional again? The fear is understandable:
that any talk of the Constitution cedes power to courts.

There is no future for the liberal idea of a sharp separation between
constitutional arguments in court and political arguments outside the
courts.

But the opposite is true. Not speaking about the Constitution in
politics cedes power to courts. By making claims on the Constitution,
we show that all branches of government, and the people themselves,
have the authority and duty to debate what our constitutional
principles require. 

There is no future for the liberal idea (never adopted by
conservatives) of a sharp separation between constitutional arguments
in court and political arguments outside the courts. The border
between the two is too thin and porous. Arguments move across it both
ways, with profound effects. Declarations by courts shape the terms of
public debate and move the horizons of political possibility;
arguments in politics shape arguments in court. We are all responsible
for participating in debates about the meaning of the Constitution,
and we ought to recognize the power of this shared commitment. In the
long run, it can help us build a more egalitarian and democratic
society than some of our elites, on and off the Court, would accept.

What might such efforts look like? Today’s conservatives wield their
anti-redistributive vision of constitutional politics primarily as a
sword for attacking and striking down legislation. In the progressive
constitutional politics we envision, rooted in the
democracy-of-opportunity tradition, the Constitution in court
functions largely as a shield: to demonstrate to judges, and the rest
of us, why egalitarian, democratic legislation should be upheld
against constitutional attack. We see at least three key battles.
First, it is time for progressives to reclaim the First Amendment,
contesting the way it has been weaponized as a tool to thwart
egalitarian legislation in campaign finance and labor law. Second, we
must reforge the link between racial justice and political economy,
widening the constitutional lens through which we see questions of
race beyond antidiscrimination law and voting rights, to include
substantive issues of mass incarceration, health care, public
investment, job creation, and wealth inequality. Third, we must bring
political economy back into view in areas where liberals retreated
from politics and ceded power to economists, such as in antitrust,
monetary policy, and corporate law.

To challenge the constitutional claims of hostile courts, progressives
must first persuade our fellow Americans that certain progressive
ideas are deeply rooted in American traditions of constitutional
argument. In pursuing these ideas, we are not transgressing
constitutional boundaries but rebuilding the economic and political
foundations of U.S. democracy.

_REPAIRING THE FIRST AMENDMENT _

The First Amendment was not always what right-wing courts today have
made it. When it rose to prominence in the first half of the twentieth
century, the First Amendment was invoked to protect not only
dissenting, unpopular speech, but also workers’ freedoms of
collective action, especially picketing and strikes. In the hands of
lawmakers and labor leaders—and briefly even in the courts—it
worked to diminish the inequalities of power between capital and
labor, helping to preserve sources of countervailing power against
oligarchy. But in the hands of today’s right-wing Supreme Court, the
First Amendment has been “weaponized” as a tool for dismantling
egalitarian forms of self-government. Our current court reads the
First Amendment in ways that undermine not only the labor unions that
workers democratically elect, but also the campaign finance regimes
that our elected leaders enact in an effort to preserve democratic
self-rule. It has become a pro-oligarchy Amendment.

There is not only constitutional power, but a constitutional duty, to
preserve a democratic political economy.

This is a neat trick. It works the same way every time. In place of
democracy, the modern court sees only a bureaucratic state. Instead of
people attempting to work together to govern ourselves, the modern
court sees, in every First Amendment case, simply a fight between two
actors: a lone individual plaintiff whose “speech claims” are
pitted against the regulatory goals of a hostile government. If we
look beyond the lone plaintiff and the state, we see something else:
the numerous ordinary people whose power, in politics and in economic
life, depends on collective self-government as a xxxxxx against
oligarchy.

Consider how First Amendment jurisprudence has recently played out in
campaign finance reform. In a run of cases beginning in 2008, a
narrow conservative majority eviscerated a series of campaign finance
laws because they aimed, as the majority of justices put it, to
“level the playing field” or “equalize” the power of different
actors in the political sphere. One law was a “millionaire’s
amendment” that allowed federal congressional candidates to raise
extra money when faced with a rich, self-funded opponent; a similar
Arizona law gave extra public matching funds to candidates who faced
especially well-financed opposition. As Elena Kagan noted (in
dissent), such a law “does not restrict any person’s ability to
speak,” but instead, by its express terms, “creates more
speech.” Still, such laws do indirectly disincentivize wealthy
candidates and independent groups from spending their money in
political ways. In other words, the laws intervene in our political
economy in a way that inhibits the conversion of economic power into
political power. The point was to inhibit oligarchy, and that is why
this conservative Court struck them down.

A similar pattern of argument prevailed in 2010, when the same narrow
majority held in _Citizens United v. FEC_ that Congress could not
bar corporations from spending their treasuries on political
advertising. U.S. law had long drawn a line between corporations
themselves, whose political activities were restricted, and political
action committees (PACs), which are often affiliated with a
corporation but are legally separate. (PACs are funded by
corporations’ executives and supporters—who are citizens, as
entitled as anyone else to participate in politics.) But in _Citizens
United_, the majority swept that distinction away. If corporations
themselves want to spend money to speak about politics, Anthony
Kennedy held, “the Government” must not “impose restrictions on
certain disfavored speakers.”

These arguments make clear that conservatives hold a vision of
constitutional political economy in which economic power is freely
convertible into political power—and in which what most people might
call “corruption” is reconceived as ordinary politics, subject to
constitutional protection. 

In his _Citizens United_ dissent, John Paul Stevens argued that
“our lawmakers have a compelling constitutional basis, if not also a
democratic duty, to take measures designed to guard against the
potentially deleterious effects of corporate spending.” His
reference to “democratic duty” is highly unusual today. It evokes
a lost world of democratic lawmaking, one that acknowledged that
legislators have a constitutional duty to build the countervailing
political power of the democratic majority against the wealthy few.

How should lawmakers wield this “compelling constitutional basis”
to respond to _Citizens United_? Both state legislatures and Congress
could give large unconditional sums of campaign money to any serious
candidate for office. They could create public small-donor matching
funds, as in New York City, where the city matches small contributions
(under about $250) from residents only at an 8:1 ratio. The higher the
ratio, the closer the system comes to democratizing campaign finance,
by giving ordinary voters the clout to shape who runs for office and
who wins. H.R. 1, the democracy reform bill that was passed by the
House of Representatives in 2021, but was filibustered in the Senate,
would create a nationwide small-donor match system for congressional
elections.

The Constitution not only permits, but compels, the elected branches
to ensure the broad distribution of power and opportunity that are
essential to a democratic society.

Lawmakers can also alter the political economy of running for
office—and improve the prospects of candidates and movements with
poor and working-class constituencies—by making it less expensive to
run a campaign. Existing Federal Communications Commission rules
require broadcasters to offer certain modestly favorable terms for
candidates’ political advertising. Congress could go much further,
adapting this rule to apply to Internet platform advertising and
requiring broadcasters and Internet platforms to provide a floor of
very inexpensive, or even free, advertising to political candidates.
These ideas are realistic legislative actions that are consistent with
even the current Court’s judge-made doctrinal Constitution. But, if
enacted, they will face constitutional challenges anyway, with novel
extensions of First Amendment doctrine offered as reasons to strike
them down. To explain to the people—and not just to courts—why
those challenges should fail, progressives should meet these arguments
head on. There is not only constitutional power, but a constitutional
duty, to preserve a democratic political economy.

The weaponized First Amendment has similarly upended labor law,
turning its constitutional stakes upside down. Before World War II,
Franklin Roosevelt and his congressional allies had argued that
constitutional democracy and political self-rule could not exist
alongside industrial “despotism.” Recalling the Jacksonians’
core anti-oligarchy insight, that the laboring “many” needed mass
organizations with the clout to counter the wealthy “few,” New
Dealers declared that their labor law reforms would come to the
republic’s rescue by finally “incorporat[ing] the industrial
workers in the polity of the United States” as a “check upon the
power of ‘Big Business.’”

When law students learn about the New Deal and its defense of the
industrial union today, they focus on the expansion of national power
through the Commerce Clause. That was part of the story. But at the
time, the era’s leading scholar of the Supreme Court, Edward Corwin,
saw things quite differently. He saw a constitutional “revolution”
taking place—not about the commerce power, but about the
constitutional meaning of freedom. Safeguarding workers’ collective
freedoms against private employers’ coercion—and guaranteeing
“the economic security of the common man” through social
insurance—were now “affirmative” governmental obligations.

Unsurprisingly, for decades the remnants of this vision have been
squarely in the crosshairs of conservative politicians and judges.
Starting with the counterrevolution of the late 1940s, the “right to
work” movement has waged an ongoing campaign of legislation and
litigation funded and supported by corporate executives and
employers’ associations, as well as by wealthy anti-union
ideological activists, to destroy the New Deal vision of labor as a
source of countervailing social and political power against
oligarchy. 

Conservatives hold a vision of constitutional political economy in
which economic power is freely convertible into political power. What
most people might call ‘corruption’ is reconceived as ordinary
politics.

The conservatives aimed to redefine unions as entirely private
collective bargainers, acting exclusively on behalf of current members
in their negotiations with a single employer. This campaign’s first
great success, the Taft-Hartley Act of 1947, prohibited so-called
secondary boycotts, in which workers act in solidarity to aid fellow
workers in a dispute with a different employer. Taft-Hartley also
prohibited “closed shops” (where an employer agrees to make union
membership a condition of employment). From then on, there would be
nonunion workers in unionized workplaces. But would the nonunion
workers have an unfettered right to free ride on everything that the
union had bargained for? Taft-Hartley allowed states to say yes,
through “right to work” laws, which some (mostly Southern) states
promptly enacted. Elsewhere unions often negotiated for “agency
fees,” in which those who didn’t join the union would nonetheless
pay a fee, reducing the free-riding problem. This raised a new issue:
workers who disagreed with a union’s politics, and refused to join
for that reason, might now be supporting some of its political speech.

In _Abood v. Detroit Board of Education_ (1977), the Court saw a
First Amendment problem with this arrangement and drew a careful line.
A union could charge agency fees for the costs of collective
bargaining, contract administration, and grievances (all of which it
was required by law to undertake on behalf of all the workers at the
workplace, whether union members or not). But it could not use agency
fees for political speech. Later, however, the Court retreated from
this position and came to view union activity as essentially private
and economic, not public and political. That was how the Court
justified upholding Taft-Hartley’s various limitations on activity
such as boycotts and picketing against First Amendment challenges.

This compromise could not survive the Court’s recent rightward
shift. In 2018, in _Janus v. AFSCME_, the Court brought the hammer
down, overturning _Abood_ and holding that, at least for public
employers (the private-employer case is still to come), the First
Amendment requires that every state become a “right to work”
state. Unions must fully allow nonmembers to free ride, charging them
no fees for the services the unions must provide them.

As today’s liberal justices stare down a far bolder and more
sweeping antilabor intervention, insights about labor as a
countervailing power are nowhere to be found. For lawyers focused on
the action inside the Court, making such arguments in the face of
conservative majorities might seem pointless. But this concern misses
the role constitutional arguments play in public debate. They not only
shape litigation but also send signals to the political branches and
the people about what cases like _Janus_ are really about—not
speech, but constitutional political economy. Rebuilding a powerful
progressive movement with a central place for organized labor requires
forging a new understanding of the constitutional necessity of
countervailing power—an understanding that will have to begin life
outside the courts, but ultimately will reverberate both inside and
out.

There is a path forward. Democrats committed to labor law reform have
gained power within the party. Not since Harry Truman vetoed
Taft-Hartley in 1947 (a veto later overridden by the conservative
Dixiecrat/Republican coalition) has the White House spoken about
workers’ right to organize the way President Biden speaks about it.
Although Democrats do not yet have the votes in the Senate, the House
recently passed a sweeping labor law reform bill, the Protecting the
Right to Organize Act (PRO Act), which aims to repeal crucial elements
of Taft–Hartley and boost efforts to organize unions. Among other
things, the PRO Act would expand the definition of work to ensure that
organized workers in today’s fragmented workplace—from fast food
franchise workers to “contracted” Uber and Lyft drivers, to home
health care workers—can bargain with the companies who benefit from
their work. The PRO Act would repeal some of the most crippling
restrictions on the rights to strike and boycott, such as the ban on
so-called secondary actions, which blocks workers who have some
organized economic clout from aiding workers who don’t. As the House
Education and Labor Committee puts it, the Act would enable “unions
to exercise these basic First Amendment rights.” It is very
encouraging that this view—that the Taft-Hartley prohibitions
violate basic constitutional rights—is once more gaining strength in
Congress.

Enacting transformative labor law reform will involve fierce and
protracted battles, not only in the Senate, but in courts (where
challenges are inevitable), in workplaces, and in the public sphere.
Getting there will require both Democratic majorities committed to
such change and considerable labor organizing and action on the
ground. As in the 1930s, workers will need to exercise their rights to
organize, strike, and act in solidarity in contexts where this is now
illegal, in the face of judicial injunctions, fines, and jail time.

Conservatives will attack any new legislative protections for workers
with novel legal arguments. They will find First Amendment arguments
against efforts to restrain employers’ anti-union activity. They
will make federalism arguments that Congress lacks the power to upend
states’ traditional common law and police-power authority to limit
forms of labor solidarity. Progressives will need more than the old
liberal response that Congress has broad power under the Commerce
Power to regulate the national economy, and that Congress has
exercised that power to promote labor peace. Both in court and outside
of it, and in legislative bodies from city councils up to Congress,
progressives should work to show their fellow citizens that rebuilding
labor is a constitutional necessity.

_RACE, CLASS, AND THE REACH OF PUBLIC LAW_

As long as Americans have fought over the meaning of the Constitution,
they have fought about race. But these days the scope of questions of
race and the Constitution has narrowed. We all can see the
constitutional dimension of affirmative action or race and policing.
But we have lost sight of an older idea: that racial justice is bound
up with political economy.

Reformers during Reconstruction understood that without major changes
to the South’s political economy—government provision of
education, federal power to enforce voting rights, the redistribution
of land from the deposed oligarchs to the freedmen who worked
it—generations of servitude and oligarchy would be followed by
generations of other forms of hierarchy and dependence, rather than
full citizenship and democracy.

We have lost sight of an older idea: that racial justice is bound up
with political economy.

They were right. It is not possible to unravel the layers of racial
hierarchy and oppression at the heart of U.S. political and economic
life without substantially renovating U.S. political economy.
Mainstream liberals lost sight of this idea in the mid-twentieth
century, but it has remained central to the radical tradition of Black
thought that stretches from W.E.B. Du Bois to Pauli Murray and Bayard
Rustin, to Martin Luther King, Jr. and Coretta Scott King, and today
to the Movement for Black Lives and Reverend William Barber’s Poor
People’s Campaign. 

Opponents of racial inclusion have also long understood the connection
between racial inclusion and political economy. They have not trained
their fire exclusively on race-conscious programs like affirmative
action. Instead they have consistently chosen lines of constitutional
attack that reduce the potential of public law to intervene in our
political economy in ways that might promote a broader distribution of
economic or political power. They have also pressed the interventions
of public law downward, away from the federal government and toward
the states. This gives Southern, white political elite more power to
block interventions that might benefit Black people. Finally, they
have worked to carve out constitutional domains where private law
norms of contract and property trump public policy interventions such
as antidiscrimination law.

Consider the Affordable Care Act (Obamacare). The most important piece
of the legislation was a large expansion of Medicaid to provide health
care—and with it, some basic measure of economic security and
independence—for Americans with income below 133 percent of the
poverty level. Yet in his 2012 majority opinion in _NFIB v.
Sebelius_ that kneecapped this part of the act, Chief Justice John
Roberts complained that Medicaid “is no longer a program to care for
the neediest among us, but rather an element of a comprehensive
national plan to provide universal health insurance coverage.” In
political-economy terms, the policy’s ambition to provide a kind of
universal social insurance was indeed as dramatic as Roberts
described. Roberts’s decision allowed states to opt out of the
Medicaid expansion—to keep the old program in place, creating a
large class of working poor people suddenly ineligible for any form of
subsidized health insurance—a wild outcome that Congress never
imagined.

To reach this surprising result, Roberts had to build new
constitutional doctrine. Forcing states to accept a broad and
universal program for the poor and the working class, or else lose the
narrower and stingier program they had before, was “coercion,”
Roberts held, a “gun to the head”—and therefore
unconstitutional, according to an account of the relationship between
the federal government and the states that elevates the constitutional
entitlements of states over those of citizens. Roberts’s opinion
caused well over 2 million Americans to become uninsured. But this was
no random set of Americans. About nine out of ten of the people
deprived of health insurance live within the boundaries of the former
Confederacy, and a vastly disproportionate number of them are Black.
This fight might seem very distant from the hot-button, constitutional
conflicts over race. And yet it is all about race—built on centuries
of laws and policies of racial exclusion, the political economy of
social insurance has a profound racial dimension. 

In a parallel move the following year, in _Shelby County v. Holder_,
Roberts destroyed Section 5 of the Voting Rights Act, which required
heightened federal oversight for places with a history of excluding
racial minorities from voting. The ruling predictably unleashed a new
politics of voter disenfranchisement in the formerly covered
jurisdictions. Roberts held that Section 5’s differentiation among
states was unconstitutional: it violated a kind of quasi-equal
protection principle that applied to states, not people. This “equal
sovereignty” principle, as Roberts called it, is not part of the
Constitution’s text, any more than the anti-coercion principle that
limits federal spending powers in _Sebelius_. They both sound as if
they rest on general ideas about the nature of our federalism. But in
fact, even as they loosely evoke antebellum Southern constitutional
ideas, these principles were recently custom-built for targeted
interventions in constitutional political economy.

It is not possible to unravel the layers of racial hierarchy and
oppression at the heart of U.S. political and economic life without
substantially renovating U.S. political economy.

In response to the Court’s cynical enabling of a state-level
politics of disenfranchisement, Congress must enact new, clear,
universal statutory schemes protecting voting rights—and must then
be prepared for a protracted fight with this Court. The Medicaid
expansion is also a statutory provision with constitutional weight.
Congress still can, and should, undo the Court’s constitutional
intervention by enacting statutory reforms that take the question of
basic health insurance coverage for working-class people of all races
out of the hands of state governments that are too wrapped up in the
racial politics of anti-redistribution to protect the core economic
interests of their own constituents.

Conservative justices are meanwhile carving out a growing statutory
and constitutional exception to civil rights laws. They are rapidly
building a jurisprudence that reads the Religious Freedom Restoration
Act (RFRA) and the First Amendment together to give religious
individuals, groups, organizations, and even corporations the power to
opt out of a widening range of generally applicable public laws,
including antidiscrimination laws. To the extent that these changes
are reversable by statute, Congress should reverse them. But a
constitutional battle is inevitable.

In a society marked by vast racial inequalities in wealth, education,
employment, and capital, there is much more to do. The Movement for
Black Lives, along with Reverend Barber’s Poor People’s Campaign,
have proposed programs of public investment, job creation, and
community economic development that resemble a twenty-first-century
Freedom Budget; the movement for reparations for Black Americans has
gathered steam, and policies for addressing wealth inequality—such
as baby bonds, wealth taxes, and homeownership-related
asset-building—are now being framed by prominent lawmakers in
expressly racial terms. As these proposals gain political support,
they too are certain to draw opposition framed in constitutional
terms, inside and outside the courts. 

For example, if Congress enacts a wealth tax, it should anticipate a
constitutional confrontation. Old ideas about constitutional political
economy that limited the reach of the federal taxing power will be
dusted off and revived. Congress should anticipate such a
confrontation by devising alternative taxes on accumulated
wealth—perhaps a more robust estate or inheritance tax—that would
kick in immediately if a wealth tax were struck down. Other strategies
for taxing concentrated wealth might include reshaping corporate taxes
to more effectively tax wealth or rents. The precise contours of the
new policy matter less than the politics of enacting it: whether
Congress chooses a wealth tax or a less direct route to the same goal,
its policy must be accompanied by a strategy for contesting hostile
judges’ visions of constitutional political economy. 

_ANTITRUST, OWNERSHIP, AND DEMOCRACY_

The liberals of the late twentieth century believed that many economic
questions were best left to technocratic experts. This was a mistake,
and one measure of its magnitude is the extent to which, since the
1970s, the U.S. economy has become increasingly monopolistic, with
most sectors dominated by a small number of firms. Entrepreneurial
activity is now at an all-time low. Central to this transformation of
the economy have been profound changes in antitrust policy, corporate
law, tax and monetary policy, lobbying regulations, and many other
areas of public law. When liberals learned to think of these important
spheres of constitutional political economy as technocratic policy
problems, they forgot hard-won lessons about their constitutional
stakes.

Those stakes were clear to Americans working in the
democracy-of-opportunity tradition throughout the nineteenth and early
twentieth centuries: the antimonopoly movement in the Gilded Age,
Reconstruction-era Republicans such as Senator John Sherman (namesake
of the foundational Sherman Act), and Louis Brandeis in the
Progressive Era. From their point of view, the purpose of antitrust
was to preserve a democratic republican constitutional order, one in
which no single economic actor would be sufficiently powerful to crush
competition or direct the power of the state to its own ends.

An antitrust law focused on oligarchy would be far less tolerant of
mergers, and far more likely to break up monopolies and oligopolies,
than the antitrust law of recent decades.

But in the 1980s, with the help of the Reagan Justice Department,
Robert Bork and his allies in what came to be called the Chicago
School convinced judges and regulators to discard this entire
tradition of antitrust thought. They read into the Sherman Act a
vision of economic wellbeing that prioritized the interests of
Americans as consumers, not as producers, and certainly not as
citizens. Regulators began to excuse monopolies’ predatory behavior
toward competitors as long as they kept consumer prices low. The
predictable rise of monopoly has been a significant factor in the
sharp decrease in the share of economic output that is paid out to
workers—and to the meteoric rise in inequality overall. 

Today a full-fledged movement is emerging to advocate a return to a
more Brandeisian conception of antitrust law. Antitrust is a
mechanism—not the only one, but a very important one—to prevent
the concentration of too much economic and political power in too few
hands. As Zephyr Teachout and Lina Khan have argued, “Excessive
corporate size tends to hurt democratic self-government because it
enables a handful of actors to purchase disproportionate political
power and to subject citizens to systems of private governance that
become less accountable the bigger and fewer the corporations.”
These neo-Brandeisians are making a claim that Brandeis would have
found obvious, but that today requires argument: antitrust law is
“constitutional” in nature. 

An antitrust law focused on oligarchy would be far less tolerant of
mergers, and far more likely to break up monopolies and oligopolies,
than the antitrust law of recent decades. It would be considerably
less confident in government’s long-run ability to impose behavioral
conditions on companies (a common substitute today for blocking
mergers or breaking up monopolies). It would curb oligopolistic
practices in industries where a few firms have outsized power, as well
as practices such as the noncompete agreements that many employers
demand from workers by contract. It would curb the power of
agribusiness giants to govern and control the actions of the small
producers. But this is not simply about making antitrust law more
aggressive. An antitrust law in the democracy-of-opportunity tradition
would be more permissive than the law is today when it comes to labor:
workers or small producers banding together look dramatically
different, from an anti-oligarchy perspective, than does a cartel of
large firms with great market power.

Any such effort will certainly be challenged in court. Business
interests will find ways to claim that antitrust regulators are taking
their property, invalidating bargained-for contracts with suppliers or
employees, or exceeding constitutional limits on federal power. The
constitutional arguments will, as ever, take place both inside and
outside the courts, and will cross the membrane separating the two.
But reformers today must not lose sight of the core idea:
constitutional democracy requires an underlying political economy that
is democratic rather than oligarchic. 

These ideas could also animate a series of changes to U.S. corporate
law. Over time, and especially since the 1980s, a relatively
pluralistic and contested stakeholder conception of whose interests
corporations must serve has given way to the view that corporations
exist exclusively to maximize the returns to their shareholders. 

In the early republic, the prevailing view was that corporations were
“artificial persons,” chartered to serve public purposes and in
need of being supervised and held to account by legislatures and
courts. The turn toward an exclusive focus on shareholders was not
inevitable. Corporate governance could transform it again. Senator
Elizabeth Warren, for example, has proposed legislation that would
require the largest corporations to obtain federal, rather than state,
charters. The terms of the charters would specify that these large
corporations must “consider the interests of all corporate
stakeholders—including employees, customers, shareholders, and the
communities in which the company operates.”

Reformers today must not lose sight of the core idea: constitutional
democracy requires an underlying political economy that is democratic
rather than oligarchic.

Regardless of the specifics, any effort to modify U.S. corporate law
in this direction will face inevitable constitutional challenge. Some
conservative commentators already argue that mandating codetermination
would violate the Takings Clause of the Fifth Amendment. Others may
argue, for example, that the law violates the First Amendment rights
of corporations by giving employees an effective veto over corporate
speech.

Both inside and outside the courts, the core argument for
codetermination is straightforward: we are choosing to build a regime
of corporate governance that is compatible over the long run with
democratic government. That was the constitutional argument that
Progressives like Brandeis and Herbert Croly put forward. There could
be no more “political democracy” in the United States, Brandeis
argued, without workers’ “participating in the decisions” of
their firms as to “how the business shall be run.” Today this idea
seems distant, but the core insight behind it remains as true as ever:
we have choices about how to set up the political economy of the
United States, and our choices have implications for our
constitutional democracy.                             
                                  

In the face of massive inequality and a dangerous trend toward
oligarchy, progressives today are beginning to reclaim some elements
of the democracy-of-opportunity tradition. This essay has only
scratched the surface of a few of the areas where that is happening.
This nascent revival of anti-oligarchy thinking is more than the sum
of its parts. It is not just policy, but constitutional argument. Past
generations of progressives understood this; their conservative
opponents did too. Indeed, those conservative opponents never stopped
understanding it. In preparation for a series of massive
confrontations with a far-right court, it is time for progressives to
once again mine this rich vein of U.S. constitutional history and
constitutional thought.

Our Constitution is the constitution of a republic, not an oligarchy.
It can continue to work that way only if we manage to prevent
excessive concentrations of political and economic power. We must
disperse political and economic power widely enough to ensure that
economic opportunity is broadly shared and racially inclusive. These
are not merely constitutionally permissible goals; they are
constitutional necessities. Legislators and citizens who hope to
reverse the present slide into oligarchy need to recover these
arguments and deploy them to help rebuild the democratic foundations
of our republic.

_EDITORS’ NOTE_: This essay is adapted from the authors’ new
book _The Anti-Oligarchy Constitution: Reconstructing the Economic
Foundations of American Democracy_, published by Harvard University
Press.

JOSEPH FISHKIN is Professor of Law at UCLA School of Law and co-author
of _The Anti-Oligarchy Constitution_.

WILLIAM E. FORBATH is Lloyd M. Bentsen Chair in Law at UT Austin
School of Law and co-author of _The Anti-Oligarchy Constitution_.

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