This post is part of our symposium on socialist constitutionalism.
Willy Forbath has drawn inspiration from the Weimar Republic to envision a socialist constitutionalism that would restructure the economy on a democratic basis. Sam Moyn has argued in response that the left ought to avoid constitutional law, which has usually posed an obstacle to progress, and instead focus directly on the political task of furthering material equality. As a scholar of administrative law, I’m sympathetic to the urge to keep constitutional law out of the way and make space for both democratic politics and practical know-how. But constitutionalism sits at the commanding heights of law. That framework of governing structures, rights, and ideals shouldn’t be abandoned to right-wing and liberal-centrist construction. Socialists and progressives instead ought to embrace a constitutional vision in which legislative and executive power give effect to the spirit of democratic equality that underlies but outruns the Constitution’s text.
The Weimar example Forbath invokes shares some common intellectual origins with the American Progressive tradition. As I show in The Public’s Law, Progressives like John Dewey, Mary Follett, and Frank Goodnow drew inspiration from earlier German constitutional models, in which an activist state would be governed by legislative norms, staffed by a professional bureaucracy, and ballasted by a corporatist organization of the economy. The Progressives sought to reconcile the German bureaucratic state with American popular sovereignty by creating highly participatory administrative processes. Regulatory agencies would empower trade unions, industrial associations, and consumers to help shape government policy.
Progressivism encompassed a wide range of political ideologies. But on its left flank were those like Dewey who provided the intellectual backing for some socialistic administrative experiments during the New Deal. Such efforts were often closely analogous to the democratic political economy Forbath recovers from Weimar. The staff manual of the Farm Security Administration, for instance, quoted Dewey’s statement that “[t]he means have to be implemented by a social economic system . . . for the production of free human beings associating with one another on terms of equality.” The FSA implemented that imperative by creating thousands of cooperatives for low-income farmers for the purchase of land, equipment, and medical coverage. In collaboration with the radical Southern Tenant Farm Union, the FSA attempted to restructure the Southern agricultural economy for the benefit of poor tenant farmers, many of whom were black. W.E.B. Du Bois held up these sorts of administrative efforts to “include all human beings in the realm of democratic control.”
In the New Deal moment when administrative discretion was at its height and constitutional restrictions on government action were in abeyance, such novel forms of social-democratic governance could flourish. Perhaps this is what Moyn has in mind when he argues that socialist and progressive constitutional lawyers’ job today is to “get their constitution out of the way of political success,” rather than to put forward an affirmative vision to guide progress. But constitutional discourse within the state sometimes buttressed rather than merely constrained the New Deal’s egalitarian politics. As Karen Tani has shown, officials on the Social Security Board developed equal protection arguments to “shift poor relief into a constitutionally protect zone” so as to reject invidious, often racialized, distinctions between deserving and non-deserving poor. Sophia Lee likewise documents constitutional analysis by officials at the National Labor Relations Board, creating a “new cite for civil rights advocates’ constitutional claims” concerning racial discrimination by unions.
These instances of rights-focused “administrative constitutionalism” during the New Deal came alongside more global structural-constitutional moves. The President’s Committee on Administrative Management, otherwise known as the Brownlow Committee, proposed a significant reorganization of the executive branch to enhance centralized control by the White House while also protecting an independent civil service. Noah Rosenblum argues that these proposals formed an “anti-fascist” approach to the administrative state that reinforced the rule of law within the executive branch but permitted expansive, democratically legitimated regulatory power. Likewise, in the face of conservative pressure for legislation to rein in administrative agencies, Attorney General Robert Jackson commissioned a detailed study of agency practice that stressed the importance of internal separation of functions as a safeguard against arbitrariness. That Report ultimately shaped the Administrative Procedure Act of 1946, which serves as a constitutional charter for the administrative state.
All this is to say that constitutionalism in the U.S. is likely to influence the terms socially transformative government action, even if some would rather carry on without it. Those who want to avoid constitutional law by retreating into administrative law will be disappointed, as constitutional norms permeate that branch of law as well. That is particularly true today, as the non-delegation doctrine is poised to return, and Chevron deference is under threat. As Sanjunkta Paul’s contribution to this symposium suggests, a democratic reorganization of the market is likely to implicate delegation concerns as well as the allocation of power between the constitutional branches, and between federal and state governments. As a consequence, it’s not enough for the left to organize rearguard action against a reactionary and centrist duopoly over constitutional law. We must also develop an affirmative understanding of fundamental structures, powers, and rights.
Forbath and Joey Fishkin’s recovery of “anti-oligarchy constitution” is an important aspect of that project. They draw on a rich tradition, closely associated with republican constitutional theory, that connects the form of government to the composition of the social order. This approach is not about celebrating the virtues of judicial review but rather about constituting state and society so that each reinforces equal distributions of power in the other. It would be a mistake for socialists and progressives not to avail ourselves of that resonant constitutional vocabulary in our shared project of human emancipation. Sanitized of all appeal to fundamental values of popular control, civic freedom, and equality before the law, left legalism might reduce to a technocratic utilitarianism that would fail to grasp the ideal aspirations of social movements. We can’t nudge our way out of barbarism. Nor can we ignore the risks that purely plebiscitary democracy, unmoored from legislative forms, might pose to human interests.
If we do not want to leave constitutionalism in the hands of courts then we need to focus instead on constitutionalism in the hands of the legislature, the executive, and the people themselves. Consider, for example, Nancy Chi Cantalupo and others’ research on the grassroots use of public comment procedures to challenge the Trump Administration’s implementation of Title IX’s prohibitions on sex discrimination by federal education grant recipients. Now that the Title IX rule has been finalized, those comments will help form the record for judicial review, as organizations that submitted comments bring suit. Such movement mobilization in the rulemaking process is popular constitutionalism in action: it is a legal and political contest to stake out the concrete meaning of equality in institutions like schools and universities that lie beyond the state itself, but often act as private governments. What Chi Cantalupo calls the “commenting power” can bring the voice of those injured by oppressive and often violent social hierarchies into the process by which equality norms are constructed.
Our current regulatory process, however, makes such efforts exceedingly difficult. Industry groups generally far outgun public interest commenters because they are better financed and often have greater technical information about the problems at hand. This is where social legislation comes in. Statutes that substantially increased unionization, provided for worker codetermination, or subsidized fairly representative consumer organizations, would help to equalize power in the regulatory process. They would enhance the capacity of beneficiaries to generate public comments, bring legal challenges, and demand enforcement. An effective regulatory state requires a radical redistribution of social power, and vice versa.
Another promising avenue for left constitutionalism would be to build on the “departmental structure” created by the U.S. Constitution. Article II refers to “Departments” within the executive branch, but specifies very little about them. The First Congress acted on those provisions by creating Departments of War, Foreign Affairs, and Treasury. Today, our vast administrative state is built on this basic departmental foundation, which provides durable procedures and distributions of authority for carrying out public purposes. But these venerable constitutional forms would need to be reworked to exert democratic control over our contemporary political economy, in which private actors like Facebook, Amazon, and Google perform sovereign functions. A Department of the Net, for instance, could provide for the nomination of policymaking officials by private associations of tech workers, platform contractors, and users, so as to create a cooperative framework to govern the internet as a public utility.
Such legislative and administrative designs would be “constitutional” in three senses: they would rely on constitutionally enumerated powers and on structures grounded in the Constitution’s text, they would reconstitute social relations according to broadly defined statutory objectives, and they would draw on fundamental constitutional values of equality, freedom, and democracy. Social progress would benefit from incorporating these forms of constitutionalism into law and its administration.
Blake Emerson is Assistant Professor of Law at the UCLA School of Law.