How the Left Lost the ConstitutionBreaking News
tags: Gilded Age, conservatism, legal history, inequality, Oligarchy, judiciary, Lochner
Benjamin Morse is a graduate student in political science at the City University of New York Graduate Center.
The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy by Joseph Fishkin and William E. Forbath (Harvard University Press, 2022)
When nineteenth-century Radical Republicans advocated for the abolition of slavery, they coupled their demands for racial equality with pleas for distributive equality. The political economy of the South, reformers at the time argued, was undergirded by an undying “spirit of oligarchy.” In order to live up to the ideals of the newly instituted Reconstruction Amendments, concentrations of wealth and power, as one black Union soldier declared, needed to be moved to the “bottom rail” from the “top.”
As law professors Joseph Fishkin and William E. Forbath write in their timely new book, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy, this period in American history “brought together for the first time in the mainstream of American political life three core principles” — anti-oligarchy, a broad and accessible middle class, and inclusion — central to what the authors refer to as the “democracy-of-opportunity tradition.” This tradition places “affirmative distributional duties on government” and considers the needs of “all Americans in the economic and the political spheres.”
Over 150 years after the abolition of slavery, as the nation deals with the repercussions of a second Gilded Age and wrestles with similar questions of wealth, redistribution, equality, and democracy (all in the face of a conservative supermajority on the high court), Fishkin and Forbath’s accessible work serves as both history lesson and political playbook, offering the Left an underutilized — and perhaps counterintuitive — tool in the present-day fight against social and economic injustice: the Constitution.
Of course, the use of the founding document to justify certain goals is nothing new. Both the Left and the Right have drawn on the Constitution as a means to their respective ends for centuries, and Fishkin and Forbath’s nearly five-hundred-page work offers a richly detailed account of that history. (And before anyone charges them with “originalism,” the authors make clear that they revisit history not because they think it is “binding” but rather because they believe certain principles from the nation’s past have “independent merit and stand in need of reinvention today.”)