[A new book argues that the Constitution is best understood as a
document calling for the unashamed struggle for equality.]
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THE LEFT NEEDS TO TAKE BACK THE CONSTITUTION  
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Jay Swanson
September 29, 2022
The Nation
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_ A new book argues that the Constitution is best understood as a
document calling for the unashamed struggle for equality. _

Joseph Biden holding a copy of the Constitution during the second day
of hearings on Justice William Rehnquist’s nomination to be chief
justice, 1986. , Photo by Bettmann Archive / Getty Images

 

With the catastrophic
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term of the Supreme Court finally concluded, it can no longer be
denied that the judiciary is firmly under the thumb of the
conservative movement. In discussions of how the conservatives
accomplished this feat, we often hear about the organizing acumen of
the Federalist Society, or the vast financial resources of the Kochs,
the Olins, and the Scaifes. But one critical ingredient has been
largely overlooked, something the conservative movement has but its
progressive counterpart does not: a compelling constitutional
ideology.

THE ANTI-OLIGARCHY CONSTITUTION: RECONSTRUCTING THE ECONOMIC
FOUNDATIONS OF AMERICAN DEMOCRACY  By Joseph Fishkin and William E.
Forbath  Buy this book [[link removed]]

This constitutional ideology—of which “originalism” is the most
well-known offshoot—is an intellectual tool used by conservative
judges to translate the political goals of the Republican Party into
the language of judicial opinion. Law and politics are supposed to be
different, so a judicial opinion cannot sound like a stump speech.
Conservative constitutional ideology bridges the gap, translating
Republican stump speeches into the supposedly apolitical language of
jurisprudence, and supplying conservative judges with the rhetorical
tropes and legal concepts they need to issue political decisions while
maintaining a facade of legal reasoning.

For example, in _Dobbs v. Jackson Women’s Health Organization_,
Justice Alito did not say, “I am overturning _Roe _because I am
pro-life.” He did not say, “I am overturning _Roe _because I am
a Republican.” Instead, he said he was overturning _Roe _because
the right to obtain an abortion does not “have a sound basis in
precedent,” and because “regulation of abortion is not a sex-based
classification and is thus not subject to the heightened scrutiny,”
and because the _Roe _decision is not “rooted in our Nation’s
history and tradition.” These snippets of impenetrable prose are
simply the translation of the Republican Party’s platform into
legalese. In making this translation, Alito and his fellow justices
relied on legal concepts created by a decades-long project to invent
and promulgate a new conservative legal ideology.

In addition to helping judges launder the Republican Party’s
platform into judicial opinions, the conservative constitutional
ideology serves a more subtle role as well. True believers in
originalism see themselves as the sole inheritors of the “true”
Constitution of the founding fathers. This messianic belief
strengthens their will to power and motivates the conservative legal
movement to adopt the hard-edged tactics that won it the judiciary. It
gives the movement the self-confidence required to use the judiciary
to impose its political vision on the rest of the country.

Compare this constitutional ideology with the current version of its
liberal counterpart. Liberals, disciplined by decades of humiliating
defeats in the courts, have entered into what Harvard Law professor
Mark Tushnet has called a “defensive crouch
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narrowing their vision of what the Constitution stands for. Liberals
drain their constitutional arguments of all moral or political
substance, instead relying on technicalities and Latin phrases, hoping
that by being scrupulously “neutral” they can shame conservatives
into following suit. It should be no surprise that this strategy has
failed.

Joseph Fishkin and William Forbath argue in their new book, _The
Anti-Oligarchy Constitution_, that the Constitution is not
“neutral.” To the contrary, they assert that the Constitution is
best understood as embracing the unashamed struggle for equality—a
legal concept, but one with political and economic significance. “We
the People” can only be sovereign so long as economic as well as
political power is broadly distributed. An oligarchic system in which
economic—and therefore political—power is concentrated at the top
is unconstitutional, Fishkin and Forbath contend, and they make their
case with a wealth of historical evidence, from John Adams to Franklin
Roosevelt. An egalitarian political program will only be possible,
they insist, when liberals recover this egalitarian constitutional
tradition and learn to make use of it.

Conservatives learned the importance of a compelling constitutional
ideology the hard way. In 1968, Richard Nixon won the presidential
election in part by promising to bring the liberal Supreme Court
headed by Justice Earl Warren under conservative control. Even before
winning office, he’d convinced Republican senators to launch the
first-ever filibuster of a Supreme Court nominee, preventing President
Lyndon Johnson from appointing a successor to Warren, who was looking
to retire. And so, upon assuming office, Nixon already had an open
seat on the court, to which he would appoint the conservative Warren
Burger. To create a conservative majority, he then forced Justice Abe
Fortas to resign through a series of characteristically dirty tricks.
As his former White House counsel, John Dean, later noted
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Nixon, the Department of Justice, and J. Edgar Hoover’s FBI
orchestrated a string of politically motivated criminal investigations
into Fortas, his wife, and his former law partner, eventually
prompting the justice to resign. But even after conservatives
controlled the court, Nixon and his administration discovered that
this was not enough. Even with Burger in charge, there would be no
conservative counterrevolution in the judiciary, at least not yet. The
Burger court, after all, was the one that issued _Roe v. Wade_ and
enshrined constitutional rights for women, not the famously liberal
Warren court.

What Nixon and the conservative justices discovered was that they may
have controlled the court, but they were still, in many ways,
prisoners of that era’s prevailing liberal legal ideology. Judges
like to style their opinions as if they are simply explaining existing
law: as if the outcome of any particular case flows from
well-established legal principles without the need for the
intervention of anything as sordid as human agency or—perish the
thought!—_politics. _This self-presentation has been and remains
the key to the judiciary’s power, but it also places a limitation on
it. In order to maintain their pose as mere interpreters of the law,
judges have to rigorously justify every proposition in their opinions
with reference to the canon of legal authorities, a relatively small
universe of past judicial opinions, books, and scholarly articles.

Therein lay the Burger court’s problem. It could not simply overrule
the achievements of the Warren court, because it could not present
such a move as an interpretation of existing law. To do so would have
required a conservative constitutional ideology that was fully
articulated in the canon of authorities and validated by the legal
establishment. Without this, the Burger court had no choice but to
leave the greatest achievements of the Warren court, for the most
part, intact.

Conservatives soon learned the lesson of the Burger Court’s failure.
If mainstream legal ideology did not get them the results they wanted,
they would create a new one. As Steven Teles shows in his
comprehensive study _The Rise of the Conservative Legal Movement: The
Battle for Control of the Law_, conservative mega-donors were
particularly enthusiastic about making this happen. Their method was
simple: give money to law schools to hire conservative professors.
These conservatives then used their newly won positions to write books
and scholarly articles that translated the political goals of their
movement into legal language—i.e., the kind of thing a conservative
judge could cite in an opinion while still appearing legitimate. And
thus emerged a new conservative ideology.

By far the most famous version of it is originalism, the idea that
constitutional law should remain frozen and unchanging from the time
of the founding fathers. Never mind that the founding fathers
themselves were not originalists; they were all perfectly aware and
supportive of the way constitutional law can change over time through
the common law. But originalism offered modern conservatives the key
to reshape the law to suit their own ends by translating their
political goals into the supposedly apolitical language of
jurisprudence.

Powered by this new ideology and supported by a new
conservative-leaning legal establishment, the moderate Burger court
gave way to the far more conservative Rehnquist court. The tone was
set by Chief Justice William Rehnquist, the man who, as a lawyer in
Nixon’s Department of Justice, was instrumental in the smearing of
Abe Fortas. With Rehnquist at the helm, the Supreme Court began in
earnest to dismantle the cherished liberal achievements of an earlier
era—at first slowly and then faster and faster. The ascendance of
the Roberts court in 2005 sped up the process even further. Now this
ideology has become unquestionably and unapologetically dominant.

Which brings us to the other, more subtle role of originalism in the
conservative legal movement. In addition to supplying judges with the
intellectual tools required to issue conservative legal opinions,
originalism provides the movement with enormous ideological
self-confidence. In the movement’s imagination, it is the sole
inheritor of the “true” law of the founding fathers, which has
been corrupted by progressives like Woodrow Wilson and the liberals of
the Warren Court. This allows the movement’s members to think of
themselves as above mainstream lawyers and to sneeringly dismiss as
“politics” any attempt to nudge constitutional law in the
direction of greater equality.

Of course, there is nothing illegitimate about a constitutional
jurisprudence that puts at its center the struggle for real equality.
“Equality” is written into the Constitution and engraved on the
facade of the Supreme Court. As Fishkin and Forbath also demonstrate,
constitutional egalitarianism has a long history in the United States.
From the country’s founding, the Constitution was understood by many
to embody a principle of equality, based on the commonsense
understanding that “We the People” cannot be truly sovereign so
long as political and economic power remain concentrated in the hands
of a narrow elite. As Fishkin and Fortbath point out, figures like
John Adams and Noah Webster argued that popular sovereignty was
impossible without broadly distributed economic power. They also
demonstrate that even an “originalist” should understand the
Constitution to embody a principle of genuine, if qualified,
egalitarianism. Equality was part of the original intent of the law.

Fishkin and Forbath want liberals to recover this egalitarian
constitutional tradition. An anti-oligarchy Constitution, they note,
can be found throughout the 19th and 20th centuries. John Quincy Adams
argued that the Constitution _demanded _that Congress pass policies
designed to create a broad middle class. Abraham Lincoln understood
the “liberty” promised by the Constitution to require economic
independence and to be inconsistent with chattel slavery _and_ a
narrow concentration of capital.

Constitutional arguments of this sort were also advanced in the 1930s,
as Franklin Roosevelt and his New Dealers sought to portray the
expansive welfare state formed during the Depression and the Second
World War as an expression of fundamental constitutional values. But
for Fishkin and Forbath, liberals started to become complacent in the
postwar years, just as conservatives started to become active.
Liberals began to think of economics as a purely scientific and
objective discipline, walled off from the world of politics, and they
began to think of the Constitution in much the same way: as a
technical puzzle, suitable only for experts, and not the proper
subject of political debate.

To Fishkin and Forbath’s chagrin, this view of the law is still the
dominant today. Many liberals think of the Constitution as something
that can be expounded only in a courtroom. This way of thinking
surrenders the fundamental statement of our nation’s principles to
lawyers—a narrow, unrepresentative elite, protective of its social
prestige and operating according to its own obscure norms and ethics.
It should be no surprise, then, that today’s constitutional
jurisprudence is conservative, hyper-technical, and obscurantist.

For Fishkin and Forbath, however, the meaning of the Constitution is
too important to be left to the lawyers. Today’s liberals have to
realize, as FDR did, that the “political equality” promised by the
Constitution is “meaningless in the face of economic inequality.”
Therefore, “a new constitutional political economy” is needed, one
in which the Constitution is understood not just as a code of law for
the courts but as a mission statement for all of the elected branches,
guiding them in the enactment of policies designed to ensure that
political and economic power are broadly distributed. Fishkin and
Forbath suggest a broad slate of reforms—encompassing labor law,
antitrust, and many others—which are similar in substance to many of
the ideas percolating in the progressive circles of the Democratic
Party. But Fishkin and Forbath’s innovation here is to argue that
these policies should be justified in constitutional terms.

The authors spend most of the book exploring how the anti-oligarchy
Constitution can be advanced by the elected branches of government,
reasoning that the courts will eventually have no choice but to
follow. This emphasis on political activism is undoubtedly correct,
but we should not forget the importance of _legal _activism. Just as
conservative scholars and judges encoded originalism into the canon of
legal authorities, progressive scholars—such those associated with
the Law and Political Economy Project
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constitutional tradition described by Fishkin and Forbath, exploring
how these principles would apply to legal issues in the real world.
Liberal lawyers, in turn, should present arguments based on this
scholarship in favorable courts (vanishingly few though they may be at
present) and create a body of persuasive precedent. As the success of
the conservative legal movement has shown, this is how the law
changes.

These novel legal ideas face an uphill climb. And they can only make
that climb as part of a broader political and grassroots movement.
Fishkin and Forbath recognize this, insisting that the “membrane”
between constitutional litigation inside the court and political
advocacy outside the court is “permeable.” But it will be in the
streets as well as the courts that a new egalitarian politics will
emerge—because, at the end of the day, it is the people, not the
courts, who are the final arbiters of our country’s fundamental
values.

_Copyright c 2022 The Nation. Reprinted with permission. May not be
reprinted without__ __permission_
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Distributed by__ _PARS International Corp
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_Jay Swanson is a Democratic lawyer from Virginia. He serves on the
steering committee for the American Constitution Society’s Capitol
Hill chapter. _

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* U.S. Constitution
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* democracy
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* originalism
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* Republican Party
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* Equality
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* political struggle
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* campaign finance
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* lawyers
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