Academic journal article Texas Law Review

Overcoming the Great Forgetting: A Comment on Fishkin and Forbath

Academic journal article Texas Law Review

Overcoming the Great Forgetting: A Comment on Fishkin and Forbath

Article excerpt

Fishkin and Forbath's (F&F's) manuscript1 is a project of recovery. It portrays the present as a time marked by a "Great Forgetting" of a tradition of constitutional political economy. F&F name what has been forgotten the "democracy of opportunity" tradition. Recovering it would mean again treating the following three principles as linked elements at the core of our Constitution: (1) an anti-oligarchy principle that works to prevent wealth from producing grossly unequal political power; (2) a commitment to a broad middle class with secure, respected work; and (3) a principle of inclusion that opens participation in both citizenship and the economic middle class to all, particularly members of historically excluded groups.

This kind of recovery project is also a certain form of imaginative literature. In the spirit of Langston Hughes's poetic call to "let America be America again"-meaning, let America become the country it has never been but always should have been2-it invites us to envision and identify with a counterfactual country, also called the United States, with the same constitutional text as ours and much of the same history. What kind of laws, what kind of public culture, and what kind of judges would that country have? This kind of counterfactual narration, like various genres of intentional fiction (sci-fi, utopian literature, and counterfactual history), helps readers get our own world, the actual world, into better focus by deliberately changing a few key aspects of it and asking what else might follow. In F&F's hands, it is also a hortatory and reforming project, urging us readers, much as Hughes did, to put our shoulders to the wheel of constitutional change.

I emphasize this resemblance to counterfactual history and other imaginative genres in part because it should focus us on a question that is not central to F&F's project but nonetheless invites attention. At what juncture did our history diverge from that of a constitutional culture defined by the democracy of opportunity tradition? How did we lose sight of that tradition? What forces and events drove it into retreat? This matters because what we take the answer to be will bear on the viability and the manner of a project of recovery like this one, oriented to the tropes of constitutional speech and reasoning.

But before turning to that tradition, let's take up the standpoint of the democracy of opportunity tradition and examine the present constitutional landscape from that vantage. From the standpoint of this tradition, many recent developments in constitutional law look seriously out of whack. Allowing the First Amendment to lay waste to campaign-spending limits flies in the face of the anti-oligarchy principle.3 Blocking Medicaid expansion (and nearly invalidating the obamacare individual mandate) on federalism grounds hobbles Washington's role in protecting basic security for a broad middle class.4 Imposing constitutional opt-outs on public-sector union-dues schemes would have torn another hole in the tattered institutional architecture of a middle-class economy (and of politically empowered worker-citizens).5 Interpreting Equal Protection doctrine in a narrow, anticlassification key (a.k.a. colorblindness) implies constitutional indifference to the structures of wealth and opportunity that stand in the way of robust inclusion, and even impedes race-conscious efforts to achieve inclusion (i.e., affirmative action).6

But, F&F observe, progressives-especially when working with constitutional doctrine, that is, when self-consciously being constitutional lawyers-tend not to think of these as constitutional issues, except in a negative sense: we say, echoing the New Deal Justices, that these are questions where the courts do not belong, where legislatures are constitutionally authorized to act. Armed with the democracy of opportunity tradition, we could say more: that legislatures are implementing a constitutional duty to build a democratic political economy. …

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