Academic journal article Texas Law Review

The "Constitution of Opportunity" in Politics and in the Courts

Academic journal article Texas Law Review

The "Constitution of Opportunity" in Politics and in the Courts

Article excerpt

Here is a proposition that most American progressives today would endorse: Widely shared economic opportunity and a broad middle class flanked by neither an underclass nor an oligarchic overclass are essential to the health of our polity. Joseph Fishkin and William Forbath, in their book in progress,1 are brilliantly excavating a once-powerful, mostly forgotten vein of constitutional thought that so held. What has been mostly forgotten, and what Fishkin and Forbath hope to revive, is precisely the constitutional import of issues of political economy-of economic inequality, mobility, and opportunity. The forgetting is part of what they are up against in persuading readers that the constitutional register, in which such arguments were made for much of American history, really matters. But there are deeper challenges in store for Fishkin and Forbath's constitutional vision.

I confess to being largely in thrall to the Fishkin-Forbath view of things-moved by their retelling of American political and constitutional history, and largely in tune with both their regrets about the past and their hopes for a future resurgence of a progressive rival to the neo-libertarian constitution. In particular, I admire the authors' effort to braid together the two histories of struggle for equal opportunity-the struggle against discriminatory exclusion and the struggle for broadly shared economic opportunity. Those two struggles-here called the "constitution of inclusion" and the "constitution of opportunity"-often struggled with each other throughout American history, and Fishkin and Forbath are very frank about the extent to which various strains and bearers of the constitution of opportunity narrative were deeply compromised by exclusionary impulses and commitments. Jefferson the slave owner and Jackson the slayer of Native-Americans are problematic heroes, and Fishkin and Forbath do not run away from that.

Unfortunately, the two strains of egalitarianism-the struggle for greater economic equality and the struggle for inclusion-still clash. Racially inflected fears and resentments and illiberal cultural commitments are among the forces that divide the political coalition that would be necessary to enact the redistributive reforms called for by the constitution of opportunity. Indeed, even among the progressives who would lead the charge for inclusive egalitarianism, there is tension between those two strains of political-economic thought. But I am getting ahead of myself.

I begin by probing one central issue in the book: Why did those two strains of political-economic thought diverge so dramatically after the New Deal on just the dimension the authors stress-the extent to which their proponents recognized and emphasized the constitutional stakes of these struggles? second, I examine some of the related challenges to the project of reviving the constitution of opportunity in the political domain, where it will necessarily rise or remain largely dormant. Finally, in a more optimistic vein, I explore what the constitution of opportunity could amount to as a legal matter, particularly in the labor arena.

I. The "Great Forgetting": Why and When?

The high water mark of the constitution of opportunity in the supreme Court might be its blockbuster Jones & Laughlin Steel2 decision upholding the National Labor Relations Act (NLRA) against both Commerce Clause and liberty of contract objections.3 The biggest surprise was the decision's broad reading of Congress's commerce power, for the constitutional liberty of contract had been cut down to size two weeks earlier in West Coast Hotel Co. v. Parrish,4 which upheld a state minimum wage law against the claim that it infringed the constitutional liberty of both parties to the employment contract to set whatever terms they chose.5 But Jones & Laughlin decimated what remained of the liberty of contract in upholding an order to reinstate employees fired for union activity.6 Not so many years earlier, in Adair v. …

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