William Forbath –
Is it really a good idea for liberals and the left to be making constitutional arguments against economic inequality? Give it a rest! Take a break from constitutionalizing everything. And don’t talk about “taking the Constitution away from the courts.” The Constitution always leads to the courts, and the courts are not our friends, certainly not when it comes to fighting economic inequality.
That, in a nutshell, is one reaction to articles and a book-in-progress by Joey Fishkin and me, about what we call The Anti-Oligarchy Constitution. There’s something to be said for this reaction, and I’ll spell it out in a moment. But in the end, I think the arguments in favor of attacking economic inequality by pushing a left-liberal “constitutional political economy” outweigh the arguments against it.
In a nutshell, the arguments in favor of the notion come down to this. It’s not easy to unpack why the stakes in combatting gross economic inequality are not only about fairness and distributive justice, but also about political freedom and democracy. Constitutional discourse can make that point sharp and resonant. Historically, in the U.S., constitutional-political-economic discourse was crucial to making the case for the proposition: No political democracy without social and economic democracy. It’s time to reinvent that discourse.
I’m going to use labor law as my main setting here. Labor law is the terrain on which Kate Andrias has written a great, sustained critique of Joey’s and my work, in the “Give it a rest!” vein. Responding to Kate’s critique seems a good way to test our views.
Also, labor law is the site of real ferment. The existing statutory framework has failed for decades to protect union organizing and collective bargaining. The Court is on a right-wing crusade, to undermine what remains of that framework in cases like Janus v. AFSCME (2017). And the liberal-left is doing serious work about what a totally new and better labor law might look like. There are important debates brewing here, with a clear constitutional dimension to them – deep questions about the tensions between the mutual constraints needed for class-based collective action on the part of subordinated groups and the conditions of individual freedom and multiple identities in that setting.
What’s more, I’m going to suggest, important developments on the ground, in movement campaigns, seem to me – pace Kate – to be freighted with constitutional politics and claim-making.
First, a quick sketch of The Anti-Oligarchy Constitution. In this work, Joey and I reconstruct a largely forgotten tradition of constitutional political economy we call the “democracy of opportunity” tradition, which stretches from the founding through the New Deal. (Ganesh Sitaraman has congenial work on similar themes.) The democracy of opportunity outlook holds that the constitutional order requires a political economy in which wealth and social and economic power are widely dispersed, not concentrated – one with restraints against oligarchy; and one where everyone has real access to middle-class status: decent livelihoods, material security and a degree of voice and authority in economic as well as political life. (Call it substantive, as opposed to formal, equality of opportunity.) We underscore that throughout its long and varied career, this was not a court-centered tradition. Its characteristic forms of argument were structural and demanded legislative reforms in arenas as varied as public lands, tariffs, banking, currency and credit, corporations and antitrust, education, and labor. Not rights against government, but legislative duties in a distributional key were at its core. The duties were thought to rest on a host of constitutional provisions (the guaranty clause, the spending and general welfare clause, the tax power, the first and thirteenth amendments, state constitutions’ equal protection provisions, to name a few).
So, for example, the founders of the Republican Party held that Congress had a constitutional duty to reserve the Western territories for free labor and to parcel the territories into free homesteads for whites and blacks. Like their Whig forbears they wove together political-economic and constitutional argument in one discursive fabric. During Reconstruction, Republicans “exposited” the guaranty clause and the thirteenth amendment not just to empower but to oblige them to supply social provision, education and land for the ex-slaves and poor whites of the South – to divide the big plantations into small freeholds, to prevent the old slavery-based “oligarchy” from reviving and instead secure a republican form of government in the South.
Fast forward to the New Deal, and you find FDR and Congress ringing out the industrial era’s progressive changes on that older republican outlook: Constitutional democracy and political self-rule could not endure alongside “industrial despotism.” Working Americans were “industrial slaves.” They would regain their economic independence – and the social and political power it imparted – not via individual property-holding, but collectively, via the security, voice and authority that came with unions. Recalling the Jacksonians’ core anti-oligarchy insight, that the laboring “many” needed mass organizations with the clout to counter the wealthy “few,” New Dealers declared that their labor law reforms would come to the republic’s rescue by finally “incorporat[ing] the industrial workers in the polity of the United States” as a “check upon the power of ‘Big Business.’” Just as Jacksonians defended the invention of the mass party as a structural constitutional necessity, so New Dealers defended the invention of the industrial union.
Constitutional law profs today characterize the New Deal “constitutional revolution” as consisting of an expansion of national power; but the era’s leading SCOTUS scholar and pundit, who coined the phrase “constitutional revolution,” saw things differently. The revolutionary (and today, forgotten) aspect of that “constitutional revolution” was not expanding the commerce power, but a bold reimagining of constitutional liberty and a recognition of fundamental rights that were collective, redistributive, ran against private actors (industrial employers) and found protection by the administrative state. Safeguarding workers’ collective freedoms against private employers’ coercion, Edward Corwin wrote at the time, along with guaranteeing “the economic security of the common man” through social insurance were now “affirmative” governmental obligations – these were the essential features of the “constitutional revolution.” And even SCOTUS got it. (Here’s my take on how and why these features of New Deal constitutional discourse were forgotten.)
In a moment of mounting class inequalities, growing economic insecurity and burgeoning oligarchy like today, Joey and I argue, this tradition has much to offer.
Now, let’s get to Kate’s critique from a labor perspective. She begins with a shrewd question: Fishkin and Forbath want to see policy mavens, social reformers, and movement activists begin to talk about the Constitution as demanding redistributive reform. Why is it that the “experienced organizers, researchers, and lawyers” who lead “today’s worker movements” decline to do so? It can’t be that the notion hasn’t occurred to them. They know about the “power of constitutional rhetoric”; many have worked in other movements that brim with such rights talk; and some are “familiar with the labor movement’s own constitutional history” and past traditions of invoking just such rights discourse. Fishkin and Forbath, Kate nicely observes, put the blame on a “Great Forgetting,” but the actual reason for the contemporary labor movement’s eschewing constitutionalism is more likely an “acute remembering” or “Labor’s Long Memory.”
Kate offers a careful synthesis of the labor movement’s long experience with judge-made law, from the mid-nineteenth century all the way to the present. Even after the Court upheld the New Deal labor law regime, she reminds us, the judiciary’s old antagonism to labor collective action and group-based rights claims led it to favor the rights of individual, non-union workers and employers’ “managerial prerogatives” and to restore many features of the pre-Wagner Act common law order, doing much to help weaken the safeguards the Wagner Act seemed to enshrine. No wonder, then, that labor strategists with a modicum of historical memory, would be leery of making claims on a constitutional order that judges have rarely seen as other than hostile to just such claims.
To be sure, Kate acknowledges, Fishkin and Forbath know that the courts are not labor’s friends, nor the primary vehicles for redistributive reforms. That’s why they make much of the potentialities of the Constitution “outside the courts.” But she suggests that we don’t reckon with what it means to live in a constitutional universe of judicial supremacy. All constitutional claim-making, she implies, is likely to be drawn into the judicial realm or be understood through the lens of doctrine. What’s more, in an era of elite domination and working-class weakness in the corridors of national legislative and political power, labor activists surely are wiser to shun “constitutional argumentation” in favor of movement-building from below, living-wage campaigns, and the pursuit of city- and state-based institutional reforms and state-craft, such as Kate chronicles in The New Labor Law. “Without the political and legal changes the movements urge,” Kate concludes, “it is inconceivable that common law courts….will adopt the constitutional arguments that progressive constitutional law scholars urge.”
To which a good part of me is inclined to say, Amen. The criticism and worries Kate raises are important ones. Still, the criticism seems somewhat misplaced, and the notion that labor should shun “constitutional argumentation” seems over-stated – and a bit out-of-date.
In her critique, Kate has assimilated our project to work like Jim Pope’s and Robert Post and Reva Siegel’s – and earlier work like Frank Michelman’s. Unlike them, however, we don’t envision a process wherein social movements promote progressive constitutional rights arguments in hopes that courts eventually will take these arguments on board and enshrine them in constitutional doctrine. What we aim to rekindle are chiefly structural constitutional arguments made in legislatures for redistributive reforms that only legislatures can enact. We emphasize that our aim is not to get courts to adopt our constitutional political-economic arguments and implement them through judge-made constitutional doctrine. The main thing with courts, we say, is to get them not to strike down or gut the measures that do implement the distributional principles. And for that, it may be essential to get courts to read those measures as doing constitutional work. Given the Supreme Court’s and federal judiciary’s mounting enthusiasm for a rekindled neoliberal constitutional political economy and the “economically regressive doctrines” in has spawned (as Kate puts it in another great piece entitled “”), it is not enough for progressives to lean on past precedent and urge restraint. The heavy-lifting in the realm of redistribution must happen in the legislatures. Still, as Kate observes in that piece, redistributive measures must be defended in court; and right now, she laments, liberals seem surprisingly bereft of “robust accounts of countervailing substantive” constitutional principles with which to push back against current “regressive doctrine.” Supplying some “robust accounts” of countervailing constitutional principles is just what Joey and I do, although we may actually be less sanguine than Kate about how much we can hope for from the current SCOTUS. Which is why we ponder more militant measures against it.
Think about why labor activists, lawyers and policy mavens made so many constitutional claims and devoted so much time to constitutional political economy in the past. They did so because their strikes, boycotts, and organizing campaigns were being condemned as illegal by courts and state officials. They had to carry on much of their work at the edges and often well beyond the boundaries of legality. It seemed essential – for the movement’s own morale, and for its campaigns for public support and legislative reform – to be able to argue that the hostile laws and doctrines and state repression were themselves illegitimate. A pro-labor constitutionalism supplied a higher law basis for workers’ direct action in streets and workplaces and for the law reforms the movement championed. This alternative constitutionalism underwrote workers’ morale and self-understanding for decades of mass civil disobedience and mass defiance of court decrees; it shaped scores of state, and then federal statutory reforms.
Now, consider Kate’s main setting for her brilliant account of on-the-ground movement-building and law reform efforts. She focuses on the “Fight for $15” campaign being waged by fast-food workers and others, and she chronicles how that movement has revived a moribund state minimum wages commission in New York and made it the site of industry-wide wage bargaining and negotiation. Kate is right. Efforts like these in blue states and blue cities are enormously important. These campaigns enjoy support from progressive city and state officials, and, Kate points out, they show little interest in labor constitutionalism.
To illustrate this point, my next post begins with the remarkable recent teachers strikes in red states like West Virginia and Kentucky, and now in L.A. These strikes mixed up issues of speech, assembly, association, collective action, and political-economic inequality in straightforward and profound ways. They seem like a harbinger of more such strikes and quite possibly, a resurgent labor constitutionalism in the Fishkin & Forbath mold.
William Forbath is the Lloyd M. Bentsen Chair in Law and Associate Dean for Research at the University of Texas at Austin School of Law.