Academic journal article Texas Law Review

The Unbearable Lightness of Tea Leaves: Constitutional Political Economy in Court

Academic journal article Texas Law Review

The Unbearable Lightness of Tea Leaves: Constitutional Political Economy in Court

Article excerpt

I.A "Constitutional" Project

Anchoring this number of the Texas Law Review is the latest iteration by Professors Joseph Fishkin and William Forbath of their project on "The Anti-Oligarchy Constitution."1 Followers recently heard Professor Forbath describe the project as one more concerned with "growing tea" than "reading tea leaves."2 Rather than trimming and shaping their work to the anticipated pleasure of the Supreme Court, Professor Forbath thus conveyed, the "anti-oligarchy constitution" project aims to turn scholarly attention to the ways and means by which the Constitution figures-not mechanically, but inspirationally and normatively-in processes of publicwill formation that ultimately drive our politics and the resulting policies in one or another direction, the Supreme Court notwithstanding.

Progressive-minded scholars as they are, "growing tea" for Fishkin and Forbath means, in the first place, raising up once again from the old sod of American creedal talk the watchword of republicanism-by that term evoking, to be sure, ideas about forms of government but also, of coordinate importance, ideas about forms of social life. Fishkin and Forbath seek a return to a once-held place of high sway in our politics of the call for public policies aimed at an overall social condition of rough equalities-or at least controls on inequalities-of openings to the pursuit of happiness, public and private.3 But the project is not simply a reignition in American politics of an old-time passion for republican-compatible distributions of wealth, rank, opportunity, and power. It concerns, more specifically, a certain, special, "constitutional" channel for consolidations of public opinion and public will. The business at hand is nothing less than a restoration of the republican ideal to constitutional status and force, as a mandatory guiding norm for the conduct of American government.

We need not here specify in detail the prescriptive content of that norm, to which, in what follows, I will refer simply as "the R-norm." What we do have to be clear about is this: When our friends claim "constitutional" status for the R-norm, they are not just proclaiming it to be really, really important or really, really true-blue American.4 They are out for something more: a recognition of an inscription of the R-norm in that special body of normative material we know and love as the Constitution. They want recognition of the R-norm as a norm of American constitutional law.5

That ambition-or so I will suggest-more or less unavoidably puts tea leaf reading back on the table. It does so by force of a stubborn, social fact that our authors do not like but nevertheless feel compelled to face up to. By common name, it is the social fact of judicial supremacy in the United States.6 In social substance, it is the fact that these days in America it feels borderline impossible to speak of constitutional law without putting the Supreme Court in charge.

II. "Structural" Constitutional Norms and the New Deal Settlement

The norm our authors seek to put back into play in American constitutional law-the R-norm-is one of a type they classify as "structural" (as in "the structure of our economic life"7 and "a structural condition for fair equality of opportunity"8). We con law profs typically use "structure" to mean the part of our field that deals with the organization of government and allocations of authority among the components: federalism and separation of powers. Fishkin and Forbath mean the term differently. Primarily, the reference is to social structure-to basic facts about distributions, among segments of the population, of wealth, power, status, and opportunity.9 What American constitutional discourse long had but has now mainly lost, say Fishkin and Forbath, is responsiveness to perceptions of how a republican constitutional order depends on an underlying political-economic order-of how, for example, excessive concentration "at the top" of wealth and the powers it brings can lead to destruction of the "broad, open, and secure middle class [that] is itself a political and economic bulwark against oligarchy. …

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