Academic journal article Texas Law Review

Republicanism and the Constitution of Opportunity

Academic journal article Texas Law Review

Republicanism and the Constitution of Opportunity

Article excerpt


In arguing for an "Anti-Oligarchy Constitution"1 and a "Constitution of Opportunity,"2 Joseph Fishkin and William Forbath face a recurring problem: What does the Constitution have to do with their argument? They emphasize that public officials have a duty to promote an inclusive and broad-based middle class because this will help preserve democratic self-government.3 But why is this a constitutional obligation?

The theory of living originalism4 can help articulate the constitutional basis of their project. The purpose of this essay is to show how a commitment to a republican political economy follows from the constitutional text and from basic constitutional commitments to republican government.

I. The Anti-Oligarchy Constitution as a Constitutional Construction

Arguments for constitutional political economy are examples of constitutional construction. Constitutional constructions build out the Constitution's basic framework where the text is silent, ambiguous, or vague.5 Judicial constructions are the most familiar forms of construction, but equally important are state-building constructions 6 Indeed, as I explain in Living Originalism, most judicial constructions respond to state-building constructions by the political branches.7 State-building constructions are therefore the primary case, not the exceptional case, of constitutional construction. Until well after the Civil War, the judiciary played a far smaller role in constitutional construction than it does today.8 And even today, judicial constructions often respond to important state-building constructions, as we can see in the debates over Obamacare.9

In state-building constructions, the political branches assert claims about the Constitution's meaning; they flesh out the Constitution's obligations and exercise the Constitution's powers of government through the building of institutions that perform constitutional functions.10

The Anti-oligarchy Constitution is a constitutional construction. it is an account of how best to make the Constitution work in practice. Fishkin and Forbath argue that implementing the Anti-Oligarchy Constitution is primarily a task of the political branches and only secondarily a task of the judiciary.11 Along with a general statement of the Anti-Oligarchy Constitution, they offer an interlocking set of principles and assumptions about constitutional structure as a whole.12

What is the ground of this construction? Constitutional constructions must always be consistent with the basic framework.13 The basic framework includes the Constitution's text and its choice of legal norms- rules, standards, principles, and silences.14 But the constitutional framework also contains a small number of underlying principles that are not directly stated but that we infer from constitutional text and structure.15

What are those underlying principles? There are at least five: (1) separation of powers; (2) checks and balances; (3) federalism; (4) the rule of law; and (5) republicanism, or representative democracy.16 No construction of the Constitution can be faithful if it rejects these principles as part of the basic framework. Of course, because these are principles and not rules, they may be articulated in many different ways and take many different forms. They do not determine the scope of their own extension, and they must be balanced against other considerations. Nevertheless, it would be unfaithful to the Constitution to argue that it does not contain a principle of federalism, for example, or a principle of representative democracy.

In fact, the principle of representative democracy is more than just an unstated underlying principle. it is mentioned in the Constitution in Article IV, Section Four, as a requirement that "The United States shall guarantee to every state in this Union a Republican Form of Government . . . ."17

The Guarantee Clause seems only to assert that states must be republican. …

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