THE ANTI-OLIGARCHY POPULAR CONSTITUTION

AMERICAN JOURNAL
of LAW and EQUALITY

Frank I. Michelman

I. BASIC ELEMENTS

“Constitutional” Argument

A.
“Reclamation project” would ﬁt well as description for The Anti-Oligarchy Constitu-
ción (“TAOC”).1 Authors Joseph Fishkin and William E. Forbath (“F & F”) aim by this
work to spark a return to form of an ancient ﬁxture in United States politics, now recently
(within living memory) gone into eclipse. That old American political folkway F & F name
our country’s “democracy-of-opportunity tradition.”2 To its late demise they link a col-
lapse of American political capacity and will to address a challenge to society—a “crisis,"
as they name it, “of inequality”—on which, they believe, the American democratic republic
soon could ﬁnd itself foundering.3 As contribution toward a reignition, F & F tender a rich
and detailed recollection of the tradition’s career over the course of American history,
along with sharp-eyed (and sharp-edged) examination into the causes of its recent evac-
uation and the means of its restoration.

As TAOC’s historical chapters—eight of them, the bulk of the book, reaching from
“The Early Republic” to “The Great Society”—are meant to remind us, the challenge to
society our authors have in view is not late-coming to the United States. It is as old as the
country is, a recurrent and persistent stream of issues of class and power reaching to the
foundations of the republic. What has steeled our politics over decades and centuries to
meet these issues head on has been, in F & F’s persuasive retelling, the American
democracy-of-opportunity tradition.

2
3

JOSEPH FISHKIN & WILLIAM E. FORBATH, THE ANTI-OLIGARCHY CONSTITUTION: RECONSTRUCTING THE FOUNDATIONS OF
AMERICAN DEMOCRACY (2022).
Id. en 3.
Id. en 1.

© 2022 Frank I. Michelman. Publicado bajo una Atribución Creative Commons-NoComercial-SinDerivadas 4.0
International license (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00037

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But then what, a bit more precisely, is this tradition? Of what does it consist that has
gone missing from American politics of late? F & F’s book’s title tells you . . . up to a point.
It was a practice, the title indicates, of political contention over the country’s economic-
structural choices and pursuits conducted in a constitutional vein; it manifested as a reg-
ularity of “constitutional argument” over economic policy.4 That much, the title tells you.
What the title does not quite in itself convey is that the anti-oligarchy Constitution of the
tradition is an object of address through politics, not just (or mainly) through law. El
tradition our authors have in their sights is one of argument not chieﬂy in courtrooms
but in everyday political venues, from Congress on down, in which the Constitution ﬁg-
ures as a constant guiding authority. F & F thus here take their stand as advocates for
constitutional government, if not for judicial supremacy in the constitutional ﬁeld. Su
book should ﬁgure as contribution to the exposition of what marches these days under
banners of “popular” or “populist” constitutionalism.5

Establishing those points and what I mean by them will be a part of my aim for what
follows. Doing so will set us up for a further probe I have in view, and that is into the
connection (if any) between the attraction of F & F to a tradition of constitutional argu-
ment over economic-structural policy (as diﬀerentiated, I mean, from just plain political
argumento) and the progressive-leaning partisan-political stance that also drives their eﬀort
in TAOC. What exactly, I ask, is the magic attached by F & F to the constitutional mo-
dality of public contention over economic-structural policy, given their substantive-
egalitarian partisan interest? That probe will lead me to a question that may register as
unexpected: hacer (or would) F & F carry a brief for routine attachment of constitutional
import to debates over structural features of the American economy, regardless of expected
partisan consequence; si, decir, they weighed the chances of a resultant advantage as even
between progressive-leaning and, decir, neo-liberal political outcomes?

To that question, my answer will be uncertain. I can see (and can hope that they
would, también) what I would count as good reasons, having to do with the cause of consti-
tutional democracy in general, why the answer could be yes. I also can see perfectly decent,
partisan-colored reasons on their part for wishing that American citizens could come
de nuevo (as once upon a time) to see the politics of economic-policy choice through lenses
of constitutional identity, constitutional faith, and constitutional patriotism. I will come to
those reasons, brieﬂy, at the end.

Sample of the Goods: A “New Deal Settlement”?

B.
The main stem of TAOC consists, as I have said, in a chronologically ordered series of
eight chapters, recounting in detail the tradition’s ﬁgurations from political era to political

4
5

Id. en 2.
See MARK TUSHNET & BOJAN BUGARIC, POWER TO THE PEOPLE: CONSTITUTIONALISM AFTER POPULISM (2021); LARRY D.
KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).

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THE ANTI-OLIGARCHY POPULAR CONSTITUTION

era. Readers will want a taste of what these chapters have to oﬀer in the way of historical
reawakening. I take as my example a recollection from New Deal political argument that
will be pivotal for the questions I have in view.

Liberals and progressives of the last several American generations have largely taken
for granted, as a leading premise in our national constitutional law, a rule of New Deal
vintage by which resolutions of socioeconomic policy are placed almost entirely beyond
the remit of the Constitution. We take that as a switch in understanding from the
preceding Lochner era, promoted by New Deal politicians by way of clearing a path
to adoption of their programs: the “New Deal settlement” you can ﬁnd in all the
casebooks.

That has been the standard story. The real story, courtesy of F & F, is more ﬁne-
grained. What our authors let us see is that it was neither the intention nor the practice
of New Deal progressives thus to blanket out some category of economic-policy matters
from constitutional purview or Constitution-powered public argument. That was, decir
F & F, an “unintended upshot” (propelled by reasons we will come to6) of a New Deal
lawyers’ contrivance for getting their programs safely past the censorship of a Supreme
Court imbued with fringe-conservative political-economic leanings.7 At the Supreme
Court, Sí, what the New Dealers thought it smartest to propose was not for the Court
to turn its own constitutional thumbs up on the New Deal—to “make the New Deal
constitutional political economy its own.” They could, bastante, propose for the Court
to “step aside” and let “legislative and administrative actors carry on with the constitu-
tional work they were better equipped and disposed to do.”8 By contrast, as F & F quite
eﬀectively show, when arguing in Congress and in public discourse, New Dealers
pitched their arguments as constitutional. “FDR and New Deal lawmakers,” as they
write, “championed their legislative agenda in terms of implementing their new
social-democratic ‘economic constitutional order.’”9 Robert LaFollette, Por ejemplo,
“claimed a fundamental rights–based constitutional warrant for Congress to protect
the ‘right to work at a gainful employment’ against invidious discrimination,” with
implications not only for labor-law policy but for the “state action” doctrine in consti-
tutional law.10

Ahora, this may strike you as only a mild twist or reﬁnement on received American legal
historia. The twist turns out, aunque, as we will see later, to ﬁgure signiﬁcantly in F & F’s
plea to liberal- and progressive-minded Americans to get over our crush on a “New Deal

6
7
8
9
10

See Part III, infra.
FISHKIN & FORBATH, supra note 1.
Id. en 254.
Id.
Id. en 335.

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settlement” and learn again to make the Constitution the very ground of demands for a
steadiness of anti-oligarchy commitment in economic-structural policy.

“Political Economy”

C.
Given F & F’s motivation for seeking a revival of it now, the democracy-of-opportunity
tradition’s aspect of substantive-egalitarian political stance—anti-oligarchy—must of
course ﬁgure saliently in their account of it and its workings in our politics over time. Eso
aspect comes coupled to another key term in the book’s vocabulary, “political economy.”
The reference of that term is double-barreled: to a ﬁeld of disciplinary study (like physics),
and to an attribute of a country, something you’d want to know about it before moving
allá (like climate or language). The expression conveys recognition of a relation of co-
dependency between a country’s socioeconomic and governmental orders. It was with a
sense of “how political decisions shape and constitute [económico] relaciones [y cómo] eco-
nomic relations . . . shape politics”11 that world-historical researchers in the ﬁeld—Smith,
Mill, Marx—conducted their studies and disquisitions on “wages, prices, labor and capital
[y] the distribution of wealth.”12 Their work as political economists stands, for F & F, en
contrast to today’s successor discipline of economics, directed as the latter is (in their
descripción) toward technical goals of eﬃciency, consumer satisfaction, stability, growth,
etcétera, while shedding oﬀ to “politics” all questions about how, en todo caso, to implement
its ﬁndings in the form of legislated public policy.13

Composition of the Tradition

D.
The aim, as I have said, of F & F in TAOC is restoration to eﬀective presence in Amer-
ican political life of a certain tradition of argument in matters of socioeconomic policy.
Arguments in this tradition

hold, broadly, that we cannot keep our constitutional democracy—our “republican
form of government”—without (1) restraints against oligarchy and (2) a political
economy that sustains a robust middle class, open and broad enough to accommo-
date everyone. The most important and compelling arguments in this tradition hold
[further] eso (3) a principle of inclusion—across lines such as race and sex—is

11
12
13

Id. en 2.
Id. at 1–2.
See id. en 2, 365. “Political economy” as the name of a study parallel to economics has not fallen out of use. Fishkin
and Forbath must be pleased to note the presence in Harvard Law School’s course lineup for the current term of a
course on “Law and Political Economy.” See Course Catalog (2021–2022 academic year) 306, HARV. l. SCH.,
https://hls.harvard.edu/academics/curriculum/catalog/index.html.

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THE ANTI-OLIGARCHY POPULAR CONSTITUTION

inseparable from the ﬁrst two requirements, and equally necessary for sustaining the
political economy that republican government demands.14

This deeply embedded vein in American political consciousness and debate—this
democracy-of-opportunity tradition—is, say F & F (backing the claim with their succes-
sion of richly detailed historical chapters), “as old as the republic itself.”15 It has been,
through most of our history, a commonplace of our politics, only recently faded away.
We badly want it back now, in the urging of F & F, for its aptness and capacity to address
pressing problems of inequality and hierarchy now facing our country.

Likely the ﬁrst thing you’ll notice about F & F’s democracy-of-opportunity tradition is
its claim to a substantive-ideological coloration: “blue,” to wit, in our current journalistic
color-coding—to the left, egalitarian, redistributive, “progressive.” But progressive partisan
stance is only one out of three elements that, in combination, deﬁne the political-
argumentative style of which F & F seek a reignition. The other two are topical focus
and “key” or “pitch” (as I will call this third aspect). The topical focus in the tradition
is “political economy.” The partisan stance, Sí, is “progressive”—opposite, decir, to a
neoliberal sort of political-economic stance. The pitch is “constitutional.”

I am strongly on board (color me social-democratic liberal) with the claimed tradi-
tion’s partisan-political leaning. But still, to me as scholar coming at F & F’s work from
the ﬁeld of constitutional studies (or “constitutional theory”), partisan stance is in a way
the least interesting of the tradition’s three dimensions. I see that aspect as in a way in-
cidental to those of political-economy focus and constitutional pitch. (Consider that
political-economy counterparts to Epsteinian classical liberalism16 and Hayekian catal-
laxy17 do also compete these days for American political-cultural hegemony. Will not
those partisan causes also face choices about whether and how to pitch at the “constitu-
tion” level, no less interesting to constitutional theory than those faced by anti-oligarchy
progressives?)

The wish of F & F for a restoration to American politics of a disposition to pitch
economic and related social policy debates at a level of always immanent “constitutional”
resonance and import comes tightly coupled to a wish to see the debates routinely cast in a
“political-economic” frame, where political-structural dependencies and consequences

14
15
16

FISHKIN & FORBATH, supra note 1, en 2.
Id.
See RICHARD A. EPSTEIN, THE CLASSICAL LIBERAL CONSTITUTION: THE UNCERTAIN QUEST FOR LIMITED GOVERNMENT
(2014).
“Catallaxy,” for Friedrich Hayek, designates a “special kind of spontaneous order produced by the market through
people acting within the rules of the law or property, tort, and contract.” See FRIEDRICH A. HAYEK, 2 LAW,
LEGISLATION AND LIBERTY: THE MIRAGE OF SOCIAL JUSTICE 108–09 (1976). For Hayekian political economy, ver
generally FRIEDRICH A. HAYEK, THE CONSTITUTION OF LIBERTY (1960).

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routinely ﬁgure as primary considerations, along with those of eﬃciency, productivity,
growth, etcétera. Throughout TAOC, those two aims travel together. The evident pre-
mise is that it’s when you cast choices of regulatory policy—take, Por ejemplo, regulación
aﬀecting the legal status and relations of labor unions—in a political-economic frame that
you more likely will see them as constitutionally fraught, and vice versa.18

As we have already begun to see, aunque (the putative New Deal settlement), the two
aims can at least formally be pried apart, so that choices of regulatory policy are routinely
presumed to lie outside the Constitution’s gaze. “Today,” write F & F, “structural
political-economy arguments tend to strike [a nosotros] as policy arguments”—as distinct, ellos
significar, from “constitutional” ones.19 They say this ruefully, even as they recognize how that
very tendency has generally been seen from the left as more advantageous than detrimen-
tal for the progressive cause.20 F & F think that has been our mistake. They urge on us a
push toward a restoration of political economy to a constitutional level of attention and
concern in American politics.21 Do they see in such a restoration an important gain for
the quality of our democracy, aside from eﬀects on the prospects for a democracy of
opportunity—even if, decir, the resulting advantage would accrue to supporters of a
classical-liberal political economy?

“Constitution” as Higher Directive Authority

mi.
Our authors distinguish the modern investigative ﬁeld of economics from its prede-
cessor ﬁeld of political economy, in part by the former’s comparative disregard for the
political-structural implications of its scientiﬁc ﬁndings of regulatory cause and eﬀect
for technical targets of output, growth, eﬃciency, and so on.22 But looking, entonces, to recent
American politics, you might ﬁnd yourself doubting any claim that they have been

19
20

Some may look for comparison here with Marxist or pseudo-Marxist ideas about “base” and “superstructure.”
Others may ﬁnd more apt a comparison with John Rawls’s idea of a society’s “basic structure” as the focus for a
liberal conception of justice. (For Rawls, a society’s basic structure consists in its “main political and social
institutions [and the way] they ﬁt together into one system of social cooperation [y] assign basic rights and
duties and regulate the division of advantages that arises from social cooperation over time.” JOHN RAWLS, JUSTICE
AS FAIRNESS: A RESTATEMENT 10 (2001).) But Rawls and F & F are on diﬀering sides of the question of including
economic-opportunity aspects of the basic structure among a country’s “constitutional essentials.” See JOHN
RAWLS, POLITICAL LIBERALISM 227–30 (1993); Frank I. Michelman, Poverty in Liberalism: A Comment on the
Constitutional Essentials, 60 DRAKE L. REV. 1001, 1005, 1016–17 (2012).
FISHKIN & FORBATH, supra note 1, en 8.
See id. en 15, 362, 484. “New Deal constitutionalism . . . was not what we have been taught in law school” (es decir., “a
constitutional outlook that thrust economic rights and liberties beyond [constitutional] purview”). Id. en 334.
They aim at getting “liberals and progressives [a] understand constitutionalism anew [meaning once again as
formerly] as a ﬁeld where . . . important work of reimagining the relationship of democracy and capitalism can
resume.” Id. en 141.
See id. en 2, 365.

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THE ANTI-OLIGARCHY POPULAR CONSTITUTION

oblivious to social- and political-structural consequences of regulatory policies. (Ronald
Reagan, Paul Ryan, Bernie Sanders, Elizabeth Warren?) What you should then—again—
read F & F to bemoan is loss of a former American predilection for contention over such
concerns in a constitutional key. That is what for them has most grievously gone missing
from our politics: not so much attention to political-structural ramiﬁcations of economic
policy directions as constitutional argument addressing those ramiﬁcations; or rather, ser
more precise, addressing them not obliquely and stealthily through First Amendment (o
Takings Clause or Vesting Clause) back doors but head-on, frontally, treating those
matters as directly constitutionally targeted, in and for themselves. Where Americans in
the past routinely “viewed and argued about . . . the political economy through a consti-
tutional lens,”23 grieve F & F, we now oppositely cast issues of economic policy as such—as
a category—beyond and beneath constitutional concern, regardless of apparent or argu-
able political-structural ramiﬁcations from those issues.

But then we need to be clear about what F & F mean when they speak of “constitu-
tional” argument or “constitutional” politics. To begin with, the term “constitutional” may
be used to label either a topic of debate or an authority to be consulted in resolving the
debate. Used to name a topic, “constitutional” signiﬁes having to do with the basics of a
country’s political order or character. Political-economic argument then being, by deﬁni-
ción, always in that sense “constitutional,” this could hardly be the sense in which F & F
join “constitutional” to “political-economic” in their call for revival of a form of political
address to economic policy featuring both of those attributes, not as one but distinctly as
two.24 By “constitutional” argument, aquí, F & F undoubtedly mean argument referring to
an authority taking precedence over the contingencies of our ordinary-level legislative pol-
itics. They mean argument appealing to an American (capital-C) Constitution as biblical
for this domain. The tradition they have in view is one of advocates presenting their cases
at the ordinary-politics level in terms (partly) of demands precedently imposed by that
Constitution.25 It is one of argument giving as a compelling reason in support for its policy
positions that that Constitution says so.

F. A “Dualist” (not “Monist”) Conception of Democracy in America
That still leaves open, por supuesto, large questions about exactly what, for F & F, eso
authority-casting “Constitution” consists of and how we make out exactly what it says.

23
24

Id.
Ver, p.ej., id. en 2 (diﬀerentiating between argument “in a constitutional” lens from argument “in a political-
economy” lens); id. en 3 (recalling a time when concentration of economic power was seen to pose “not just a
political” but furthermore a “constitutional” problem) (emphasis supplied).
Id. en 3.

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Is their Constitution all and only a written text subject to the interpretative tools and
techniques of lawyers? Does it consist in part of some prior normative conception of
good or right government that informs, or ought to, an attribution of meaning to the
texto? F & F’s answers might or might not jibe with what we call textualist and originalist
themes in current American constitutional-legal scholarship. Abajo, we will look and
see.26 For now, aunque, I mean to have established only that F & F evidently are at home
with what we can call, in the coinage of Bruce Ackerman, a “dualist” conception of
American democracy, meaning one that distinguishes a “higher law of the people” from
an “ordinary law of legislative bodies” and subordinates the latter to the requirements of
the former.27 At least, they are to the extent of joining up with a habitual American
readiness to take the Constitution (whatever exactly we make that out to be) as a kind
of decalogue-equivalent for politics here: a tablet of mandatory ﬁxed high principles for
the guidance of political power, to which we count on oﬃcials and their inﬂuencers to
feel themselves obliged.

That is not a minor point to make about the work of F & F. From the start and
repeatedly, American history has shown a split of dispositions toward that sort of civil-
religious regard for the Constitution. That split is quite visibly with us today, al menos
among our legal intelligentsia.28 We have among us our committed democratic “monists”
(as Ackerman would style them) for whom unbound rule by current majorities is and
must be the ultimate sovereign coin of legitimacy in a democratic politics.29 What is more:
if and insofar as the split of democratic dualists and monists might carry for you a hint of
a left/right connotation, F & F’s apparent constitutional-democratic allegiance would place
them on what normally would appear—at least prior to the education tendered by their
historical diggings—to be the side less receptive to the political outcomes they seek. El
ﬁgure of Frederick Douglass comes to mind. (The anti-slavery Constitution?? Really??) I
am here looking to understand further what might be the full complement of political
values or other considerations that land F & F in this position.

26
27

See Part IV, infra.
JOHN RAWLS, POLITICAL LIBERALISM 231 (1993). Rawls was there, as he said, see id. en 231 n.17, taking a cue from
Bruce Ackerman. Ver, p.ej., BRUCE ACKERMAN, WE THE PEOPLE 1: FOUNDATIONS 6–7 (1991).
On the dualist (constitutional) democratic side (variously nuanced), ver, p.ej., C. EDWIN BAKER, HUMAN LIBERTY AND
FREEDOM OF SPEECH (1989); RONALD DWORKIN, FREEDOM’S LAW (1996); JAMES FLEMING & LINDA C. MCCLAIN, ORDERED
LIBERTY (2013); ROBERT C. POST, CITIZENS DIVIDED; CAMPAIGN FINANCE REFORM AND THE CONSTITUTION (2014). Sobre el
monist (majoritarian) lado, ver, p.ej., LOUIS M. SEIDMAN, FROM PARCHMENT TO DUST (2021); JEREMY WALDRON, LAW
AND DISAGREEMENT (1999); Steven Winter, “Who” or “What” Is the Rule of Law?, PHIL. & SOC. CRITICISM ( Junio
2021), doi: https://doi.org/10.1177/01914537211021148.
See ACKERMAN, supra note 27, at 7–16. “[A]t its root,” wrote Ackerman, “monism is very simple: Democracia
requires the grant of plenary lawmaking authority to the winners of the last general election. . . . [D]uring the
period between elections, all institutional checks upon the electoral visitors are presumptively antidemocratic.”
Id. en 8.

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II.

STRATEGIC CONSIDERATIONS

I look ﬁrst from an instrumentally calculative, strategic standpoint. Consider yourself,
entonces, in the United States in 2022, a seeker after policies to implement a progressive-
minded, democracy-of-opportunity conception for this country now and into the future.
For that, you need a steady stream of positively supportive responses from the legislative
and executive departments of government. The standing challenge, entonces, for you in a
dualist-democratic environment, is twofold. You need to sustain above threshold levels
your quantums both of eﬀective motivation of majorities disposed toward your side as a
matter of partisan goals and of belief on their part in an alignment of those goals of
theirs with constraints—positive, negative, or some of both as the case may be—imposed
by a Constitution laid down by generations past. To complicate matters, these two
thresholds—of partisan goal-commitment and constitutional belief—are terms in a
simultaneous-equation assignment, not separately ﬁxed but rather reciprocally dependent.
Constitution-based reservations can yield to especially widespread and urgent commitment
on progressive goals, as conversely can perceived constitutional mandates oﬀset (pero
maybe also aggravate) uncertainties about the goals. Partisan goals and constitutional
beliefs can fuse across the border of their notional separation, with Constitution-based
promptings inﬁltrating what participants still experience as deﬁnitions of their goals
and vice versa.30

To complicate further your predicament, there is the little matter of judicial review.
Knowing your favored policies will meet serious and sincere contestation in political
venues, but perceiving (let’s say) a better-then-even chance of their prevailing there
assuming no higher-directive institution in place, you still face prospects of having them
derailed, in the Constitution’s name, by a judiciary and a legal fraternity you believe to be
systemically disposed—structural elitism working as it does—to lean to the right in its
constitutional interpretations, by comparison with the general voting population.31

With all that in mind, your reﬂection at the moment turns to a choice you face about
how to read the Constitution, speciﬁcally with regard to its inclusion (or not) of directives
aﬀecting questions of economic structure. As it happens, the country’s history to date has
left you with a clear opening to insist—and I mean as a settled point of constitutional law,
our beleaguered “New Deal settlement”—that the great bulk of the measures you care

See FISHKIN & FORBATH, supra note 1, en 19 (“[t]he border between constitutional politics outside the courts and
constitutional litigation inside the courts is a thin, permeable membrane. Arguments cross it all the time in both
directions.”).
The theme (I am not knocking it) of the historic elitist leaning of the courts, and especially of the Supreme Court,
is a constant drumbeat in TAOC. Ver, p.ej., id. en 23, 139–40, 144–48, 157, 168, 362, 405. The Supreme Court,
remark F & F at one point, “has always been the most elite branch of the government in many senses of the
word.” Id. en 403.

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about fall into a category (decir, “ordinary economic and social legislation”) with regard to
which the Constitution is read to take no position. A complication, sin embargo, lies across
that path, in case it would be the one to which you would otherwise incline. Taking it
involves you in ﬁghting back against conservative judicial chiseling at the New Deal
settlement through those First Amendment and other clausal back doors I mentioned
above.32 Insofar as you might doubt of possible success in that ﬁght-back campaign, un
alternative choice also now beckons. Having just read through TAOC, you ﬁnd yourself
attracted to the Douglass-like line of aﬃrmation—indeed, insistence—that the Constitu-
tion does have application here and is favorably and positively disposed toward the anti-
oligarchy policies and measures you favor.

As between those two options, we can lay out broadly the strategic-instrumental con-

siderations bearing on your choice one way or the other.

Against the Constitution’s bearing on socioeconomic policy choices
A1. You assess at least somewhat optimistically the chances for favored political out-

comes with the Constitution out of the picture.

A2. Allowing the Constitution in introduces some risk of loss at the political stage for

favored policies that otherwise would have prevailed there.

A3. Allowing the Constitution in introduces risks of judicial invalidation of favored

policies politically approved.

Supporting the Constitution’s bearing on socioeconomic policy choices
B1. You are at least somewhat—maybe quite gravely—doubtful of the chances of
political success for your program without positive support from a public regard for the
Constitution.

B2. You believe that Constitution-based argument of a certain kind can in fact signif-

icantly improve your chances at the political stage.

B3. You believe that popular support induced by Constitution-based argument of that
certain kind can reduce the risk of judicial invalidation of favored policies politically
approved.

It is time, now, to replace our speculative “you” in these deliberations with our actual
friends F & F. We can then also replace “arguments of a certain kind,” envisaged by our
propositions B2 and B3, with “arguments of political economy.” On that understanding,
F & F take their stance in support of the Constitution’s bearing on governmental policy-
choice in matters of political-economic moment. And then, if we suppose that stance to be
purely instrumentally strategically motivated, it aligns F & F with judgments B2–3 as
opposed to A2–3.

See id. en 355, 416–17, 435–38.

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And then here is my concern. In the historical course of American Constitution-
centered, political economy-focused debate, as recounted by F & F in TAOC, it is not
clearly the case that the democracy-of-opportunity side has overall been hegemonic; no
nearly so. F & F’s historical chapters show democracy-of-opportunity as a contender
against adversary political-economic visions of a distinctly more (shall we say) elitist-
liberal bent, sometimes prevailing against them and sometimes not. The history, as richly
and bravely recounted by F & F, does indeed, as they claim, show a predilection for treat-
ing as of “constitutional” import issues of policy bearing political-economic implications.33
In so showing, sin embargo, it oﬀers scant support for premises B2 and B3 in my table of
strategic considerations (from a partisan-progressive standpoint) bearing on a move to
resuscitate that predilection today. True, that still leaves standing, on the “pro” side, B1;
but B1 alone gives no strategic-instrumental advice on a push now for reescalation to the
“Constitution” level of our debates over political economy. Supposing we could now suc-
cessfully achieve such an eﬀect, the history suggests an indeterminacy of consequence as
between a democracy-of-opportunity political outcome and some sort of antithesis to that.
Or so the matter appears to me, fresh from my reading of TAOC. F & F may disagree.
They may sum the evidence diﬀerently. Americans today, they posit, share broad agree-
ment on the importance of “promot[En g] opportunity, avoid[En g] oligarchy, and build[En g]
a robust middle class open to all.”34 They “understand . . . eso [a] crisis of inequality
threatens our democracy.”35 That understanding, add F & F, may often today be “incho-
ate.”36 Possibly what clouds it from full awareness is precisely that erasure of political
economy from the ﬁeld of front-line Constitutional vision that it’s a main purpose of
TAOC to reverse. And then once that reversal is accomplished, F & F may believe, el
chances are good for a kind of tidal resurgence here of the democracy-of-opportunity
stream in our heritage, of a force that would beat back, también, any conservative judicial urges
to bar the way. Or we might read them less optimistically, not as predicting victory but as
urging that in that direction anyway still lies our best (if modest) hope at present for
achievement of a just or decent political and social order in this country. Getting political
economy back as a front-burner constitutional question, they thus may be understood to
decir, is our best remaining choice, given a ﬁrm dualist commitment of American democ-
racy that we have no way to unhinge. If the Constitution we will always have with us, qué
to make of it is a question we cannot evade.

34
35
36

See id. en 8 (claiming that “throughout the long period from the founding through the New Deal,” democracy-of-
opportunity advocates “and their opponents . . . agreed that part of arguing about the Constitution is making
claims about what it requires of our political economy”); id. at 138–39 (recounting how, in the Gilded Age,
key issues of economic ordering were “cast in terms of constitutional political economy”).
Id. en 18.
Id. en 1.
Id.

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But that little word “if” (like “given” in the sentence preceding) carries a heavy load. Él
implies a third strategic option for promoters of an anti-oligarchic, American democracy
of opportunity, about which TAOC has little to say. I mean the option to join forces with
the democratic-monist-leaning contingent at work in our legal academy today, in a move
to wean our politics away from the idea that the Constitution lays down norms of sub-
stantive public policy that should carry anything beyond a purely rhetorical or topic-of-
conversation-steering relevance for the proper conduct of our democratic politics. And so,
de nuevo, my question comes. Regarding F & F as a brace of especially informed, determined,
and thoughtful allies in a partisan-political cause that I share (and being myself ﬁrmly a
friend of constitutional democracy), I am anxious to discover from a reading of their work:
why their apparent comfort with constitutional democracy as the American way? Why are
they not joining with the monist-majoritarians, or at least giving that camp a nod of
sympathy?

Possibly, they just assume that the democratic monist option in these United States
today—the option of washing out the Constitution’s substantive bearing on our politics
to a thinly rhetorical or conversational remainder—is hopeless of success. In what follows,
aunque, I will be headed toward a diﬀerent kind of answer—a suggestion of belief on the
part of F & F in some distinct value in a constitutional conception of democracy, aside
from considerations of relative advantage thereby gained for one side or another in par-
tisan debates. They do not say this. Such a belief, if present on their part, is inchoate. Es,
sin embargo, a possible reading to which I direct the remainder of this essay.

I will pursue the possibility by way of further probes into three questions: Primero, do I
need to qualify in some way my classiﬁcation of F & F as devotees of dualist democracy? Es
constitutional patriotism for them a mere rhetorical trick we can learn to play, or is it an
American political-emotional fact we should respect and embrace and can learn (de nuevo) a
argue from? (I will say it is the latter.) Segundo, what is “the Constitution,” to which con-
stitutional argument, as they mean the term, is to be directed? Is “Constitution” meant by
them to evoke some abstract-universal theory of rightness in politics, or does it name a
concrete development in a country’s actual history? (I will say it is most deﬁnitely, for F &
F, the latter, but subject to “constructivist” interpretation.) Tercero, exactly what is con-
tained in the idea—which F & F would have us expel from our minds—of the Constitution
lying “beyond” or “separate from” politics? (I will say “it’s complicated.”)

III. DUALIST ALLEGIANCE? (AND POPULAR CONSTITUTIONALISM)

Between democratic monists and dualists—majoritarian and constitutional democrats—
the most basic line of division is over the idea of a country’s politically enacted constitu-
tion as an advance and obligatory mandate for policy directions in the country’s
ground-level laws, to which lawmakers from time to time in oﬃce (and the political
majorities presumably behind them) stand beholden. Beholden, I mean, in a moral way

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regardless of risk that institutional formations of superior strength—say, a Supreme Court
of the United States—will block disobedient pursuits. The bias of the authentic
majoritarian-democratic streak in our conversation is against any such idea of constitu-
tional ﬁdelity, whether or not attended by judicial backup.37

On that deﬁnition of the categories, there cannot be a doubt that TAOC is plotted on a
dualist-democratic presupposition. F & F there plainly are calling for argument in political
venues that invokes an American capital-C Constitution as civically obligatory authority.
One can still, aunque, probe that dualist stance on two fronts. One front is that of com-
mitment: are F & F in TAOC dualist at heart or only as a matter of tactical prudence, given
their partisan objectives in a given constitutional-cultural milieu? The other front is that of
qualiﬁcation or reservation: are F & F in some way paring back on the muscularity of the
higher constitutional authority to which they are arguendo committed? The commitment
probe I keep for the windup of this essay. The reservation probe I take up now.

F & F close their book with a plea to “liberals and progressives” not to “disdain the
Constitution” or disparage Constitution-talk as an “essentially demobilizing” channel for
“ced[En g] power to . . . courts.” The truth, they say, is “just the opposite:"

It is the failure to speak about the Constitution in politics, an insistence on treating it
as a thing outside of politics, setting the boundaries of politics, that cedes power to
los tribunales. And more often than not, over the long arc of American history, tribunales
have used their power to protect economic and political oligarchy.38

Plain on the face of that message is a stance on the side of dualist (constitutional)
democracy. Equally plain there is a stroke against judicial supremacy in the constitutional
ﬁeld. Might the anti-judicial stroke be counted as a reservation or cutback on the dualist
postura? I do not see how. Constitutional-democratic opinion on the American legal left
divides these days between a qualiﬁed judicial-supremacist and a distinctly more
popular-constitutionalist wing.39 In this division, F & F register distinctly on the popular
lado. But the point to see, aquí, is that the popular-constitutionalist idea is exactly one of
retaining constitutional ﬁdelity as a prime civic motivation, even as it would assign ﬁnal,
decisive authority over constitutional meanings and applications to political forums.40

38
39

See Michael J. Klarman, Antiﬁdelity, 37 SO. CALIF. l. REV. 381 (1997); supra note 28 (authorities placed on the
majoritarian side).
FISHKIN & FORBATH, supra note 1, en 486.
Compare, p.ej., JAMES E. FLEMING, FIDELITY TO OUR IMPERFECT CONSTITUTION: FOR MORAL READINGS AND AGAINST
ORIGINALISMS (2015), con, p.ej., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999).
Ver, p.ej., KRAMER, supra note 5, en 24, 227 (describing an early American view of the Constitution as surely higher
law, but a law whose applications are ﬁnally to be determined not by judicial delegates but by “the people
themselves”).

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This coherence of the popular-constitutionalist cause with a dualist-democratic concep-
tion is a matter to which I will return before ﬁnishing.41 Given that it is so, not even a
ﬂat and clear preference of F & F to do away entirely with judicial review should counter
my ascription to their dualist-democratic allegiance.

De hecho, F & F do not declare so ﬂat a preference. They do not love judicial supremacy,
but judicial supremacy ﬁgures in their narrative in a more complicated, interesting way.
Frustrated—so runs F & F’s quite shrewd and credible account—by obstruction to their
legislative programs from a conservative Supreme Court, American progressives of the
New Deal era had a choice to face. They could push to wean American political practice
entirely away from attachment to judicial supremacy, in the process coming somehow to
terms with a Supreme Court membership perhaps not overly inclined to give up that
perch in the tree. Alternativamente, they could push for settlement on a deal by which a certain
class of issues—those of socioeconomic policy—would be placed almost entirely beyond
the remit of the Supreme Court.

I reported above on F & F’s recollection of how the New Dealers, thus enmeshed by
circumstance, responded by seeking (this is now me, Franco, talking, not F & F, although it
is only cues from them that could have set me thinking this way) to split the atom of
constitutional-rights recognition and protection.42 And that along two axes: primero, an axis
of division between kinds or topics of laws that do and do not enjoy, in court, a “presump-
tion of constitutionality;”43 second, an axis of division between constitutional mandates
cognizable and not cognizable in court (the latter then still cognizable in political venues).
The former diﬀerentiation has proved viable, more or less, and survives today as a
“fundamental rights” (or “fundamental interests”) branch of jurisprudence under the
Constitution’s Due Process and Equal Protection clauses. The latter one has turned out
to be extremely diﬃcult to sustain in a constitutional-legal culture tracing its root to
Marbury v. Madison.44 That culture is natally resistant to the idea of a class of issues
within constitutional coverage but beyond remit of the courts. By its inborn logic, not only
does “Constitution” equate to “higher law,” but also “law” equates to “for courts”;45 so if
no (this issue or that one) for the courts, then not legal either, and so not constitutional:
Chief Justice Marshall’s logic in Marbury, now run in reverse.46

I do not suggest that the logic is deconstruction-proof, only that it is legal-culturally
embedded here and stands in the way of where F & F are trying to take us. They know it.
We will look hard at their response,47 but ﬁrst we need to nail down more precisely than

See infra Part V.
See Part I(B), supra.
United States v. Carolene Prods. Co., 344 A NOSOTROS. 144, 152 n.4 (1938).

41
42
43
44 Marbury v. Madison, 5 A NOSOTROS. (1 Cranch) 137 (1803).
45
46
47

“It is emphatically the province and duty of the judicial Department to say what the law is.” Id. en 177.
See id. at 176–80.
See infra Part V.

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we have done yet what F & F envisage by “the Constitution” to whose authority they
would have our political debates over economic structure routinely appeal.

IV.

“THE CONSTITUTION”

“Constitutional constructivism,” explains James E. Fleming,

conceives constitutional interpretation as a quest . . . for the best interpretation of our
constitutional text, historia, and structure, together with our constitutional practice,
tradition, and culture. . . . [I]t conceives our Constitution as a scheme of abstract
aspirational principles and ends, not a code of detailed rules.48

Think of a house lot, an owner-client, an architect, and a blueprint. Anticipatory to the
blueprint would be the architect’s talk with the client about basic priorities of design and
function for the house to be built and the needs to be served by it. If those were distinct
enough in the owner’s conception, and suﬃciently captured by the architect’s blueprint,
one familiar with the world and its conditions in which these events took place could de-
duce or read back from the blueprint a fair amount, al menos, about the owner’s conception.
Doubtless some important parts would remain open to reasonable debate, but it would be
debate constrained to ﬁdelity to the blueprint, bringing to bear common cultural knowl-
edge about why some feature would or would not have been included.

In our contemporary face-oﬀ of textualist/originalist versus constructivist approaches to
constitutional ﬁdelity, F & F plainly fall on the constructivist side. For them, the Constitution
to which ﬁdelity is owed is not the blueprint; it is that readback from it of guiding purposes
and values. Always with approval express or implied, F & F furnish numerous instances
from our history of a political-argumentative “hermeneutics” of “renovation,” “restoration,"
“evolution,”49 in which the house-equivalent is our constitutional law-in-action, an assem-
blage of institutions, practicas, and principles accepted as guiding. The “restoration,” then,
is to compatibility with the client’s statement of wishes and desires, a set of enduring basic
aims for which, historically, the assemblage was initially designed and presumably found
compatible, but found compatible given conditions of climate, terrain, and technological
know-how, any or all of which may have undergone change since then (decir, lead pipes).

Here is one instance of the authors’ thinking:

This particular way of threading the needle—advocating constitutional redesign, pero
arguing for it in terms of constitutional ﬁdelity—became the centerpiece of Populist

48
49

FLEMING, supra note 39, at 20–21.
FISHKIN & FORBATH, supra note 1, en 72, 102, 296.

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arguments for the Seventeenth Amendment, as it was in their interpretive arguments
for enlarging the scope of congressional authority over political economy. . . . El
solution was a constitutional change that was also a kind of restoration . . . para el
purpose of maintaining [under changed conditions] the very principles which
the fathers sought to establish.50

For F & F, entonces, “the Constitution” in the democracy-of-opportunity tradition of political
argument is not the parchment blueprint, but neither is it some free-floating theory of
good government. It is rather a constrained deduction, from a willful human act with a
location in history, of a vision of good society supposedly informing and motivating that
act. “Constitutional” argument, respectivamente, will regularly revert to argument over that
visión. That will be especially likely where at stake are implications for the country’s
political economy. If you accept that “economics and politics are inextricably linked,
[entonces] that a republican form of government requires a republican political economy to sus-
tain it,” then the question of what the Constitution before you “requires” (in the way, decir,
of regulatory, monetary, ﬁscal, budgetary, and developmental strategies) refers not only to
what it directs but equally to what it presupposes or depends upon in the way of social-
structural underpinnings (a robust and all-encompassing middle class). Conceptions that
would dismiss the latter set of concerns as “small-c constitutional” debates over “policy,"
in contradistinction (decir) to large-C Constitutional claims over rights, are out of synch
with F & F’s coupling of a constitutional-constructivist to a political-economic perspec-
tive.51 Resuscitation of a form of political argument built around that coupling—“the
democracy-of-opportunity tradition”—thus entails a restoration of economic-strategic
argument to full Constitution-claiming status.

But then given the centrality of economic-strategic choice-making to a country’s
política (on virtually anyone’s view of what “politics” covers), that makes claims for a
separation of the Constitution from politics, or even the very idea of such a separation
or its possibility, a red ﬂag for our anti-oligarchy bulls.

V. THE CONSTITUTION “A THING OUTSIDE OF POLITICS”?

“We are asking liberals and progressives to step away from the idea that the Constitution
[or constitutional law] is a thing outside of politics”52—“separate from politics, constrain-
ing politics, setting the boundaries of politics,”53 “autonomous from politics,”54 “a force

50
51
52
53
54

Id. at 245–46.
See id. en 8.
Id. en 30.
Id. en 419.
Id. en 4.

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outside of politics.”55 It is not immediately clear exactly what F & F mean by this demand
on us to get clear of the idea of a Constitution outside of and constraining politics. On
what might seem the plainest meaning to give to that idea, F & F as dualist (constitutional)
democrats would be hoist on their own petard.

No doubt there can be renditions of the idea of a Constitution/politics division that F & F
would be most anxious to have us reject. Here is one: When Chief Justice Marshall declares
it “emphatically the province and duty of the judicial Department to say what the law is,”56
we take him to mean that addresses to the Constitution (a law) are not the business of any-
one else—emphatically are not, to a point where Constitutional reason-giving in congres-
sional or executive deliberations (save in the form of legal advice where a lawsuit may
impend) is out of line, a breach of decorum, to be given no heed. F & F undoubtedly do
reject that line on a Constitution/politics divide. That can’t, sin embargo, be the line they are
out to purge from the thought of liberals and progressives or anyone else, because it is not a
line that anyone takes. Well, Sí, some monist-majoritarian extremist, or someone really,
really down on the Constitution we have, might go around urging everyone to stop from
even mentioning the damn thing, anywhere at any time, but that would not be to claim the
Constitution’s mandate as exclusively a juridical (and so never permissibly a “political”)
concern. We need to look elsewhere for what F & F are targeting as pernicious embrace
of a divide of the Constitution from politics.

So we try out next the idea of the Constitution as laying down a mandatory plan or
“framework” for government. As framework, the Constitutional plan stands apart from
that which it frames, eso es, gobierno. Government encompasses determination from
time to time of aims and directions for public policy and legislation. The Constitution, qua
estructura, sets the institutional and procedural arrangements for those determinations
but stays aloof from the substance (“politics”) of them—except for determinations of a
selected few topics touching on what are deemed parts of the framework itself, as with
infringements on speech, association, and conscience, and political isolation of discrete
and insular minorities. For those few framework-touching topics, special provision is
made for Constitutional coverage, leaving all the rest to politics—in a word, “footnote 4.”57
And then here is my point: F & F in TAOC are fully on board with the Constitution-
as-mandatory-framework idea. Their argument there is ﬁrmly bound to the idea of the
Constitution as a mandatory prescript, at a framework level, for the conduct of our
government.58 They have important stipulations to tack on, but those arise within that
basic idea, not in opposition to it. A ﬁrst stipulation is for detection in our Constitution

Id. en 425.

55
56 Marbury v. Madison, 5 A NOSOTROS. (1 Cranch) 137, 177 (1803).
57
58

See note 40, supra, and accompanying text.
See supra Part III.

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of a framework term on political economy—parallel, we could say, to its framework terms
on expression, association, and religious profession—thus making political economy a
mandatory consideration in governmental determinations aﬀecting economic structure.
A second stipulation is for resolution of time-to-time disagreements over the content of
our Constitution’s framework term on political economy to be treated as a matter for de-
liberation in extrajudicial venues. Neither of those stipulations contradicts—rather both of
a ellos, each in its way, conﬁrm—the idea of the Constitution as framework for—thus, como
“separate from”—politics. That cannot, por lo tanto, be the idea of a Constitution/politics
separation that F & F would have us repudiate—subscribing to it, as they do, themselves.59
We need to look still further for what they have in mind.

But we needn’t look far. The thing we seek is already right there before us. It is that
stipulation of F & F for the primacy of political venues—not courts!—in arriving at the
authoritative resolutions we will need, from time to time, of disagreement over the sub-
stance of the American Constitution’s framework term on political economy. A paradox,
allá, of sorts. A Constitution, necessarily conceived as distinct (so “separate”) from a
politics it is there to instruct, leaves to determination by politics the meaning of its instruc-
tion to politics.

But then how, you ask, can that be a coherently maintainable proposition? By reason, I
respuesta, of an equivocation (not vicious) on “politics.” The equivocation is slight, border-
ing on the microscopic, not readily noticed: “politics” used to name an activity of choice of
direction for government policy versus “politics” used to name an institutional venue for
resolution of disagreements over constitutional meaning. In the view urged upon us by
F & F, politics in the ﬁeld-of-choice sense is under constraint from a Constitution (cual
debe, entonces, lie outside it), even as the applied meaning of that constraint is subject to res-
olution by the same bodies of oﬃcials and voters who also will act as the choosers thereby
constrained.

We arrive at a coherent, if complex, combination of results: (i) governmental policy
choice conducted with due regard for a higher directive on political economy,60 pero
con (ii) the substance of that higher directive to be resolved in political venues,61 pero también
(iii) debated there as a responsible, accountable, publicly defended inference from the
actual constitutional history of this country including but not restricted to its initial

60
61

A further point to note about this Constitution-as-framework version of a Constitution/politics divide is that its
implication is usually taken to be one of restrictive deﬁnition of the remit of the Supreme Court. (The bible for
this version would be JOHN HART ELY, A THEORY OF JUDICIAL REVIEW (1980).) That is a deployment to which F & F
should have no objection. They are not (nuttily) clamoring to have the Court bestir itself to order up anti-
oligarchy enactments or promulgations from the political branches, only for it to have a due regard for anti-
oligarchy as right and proper business for the latter, in a Constitutional perspective. See id. at 427–29.
See supra Part III.
See id.

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Constitutional blueprint.62 Popular constitutionalism, may we say, in nutshell! F & F end
up teaching us a lesson in the reﬁnements and intricacies of that idea (although they only a
few times in passing give it mention by that name);63 I have not anywhere seen a richer
development of what it entails.

VI. CONSTITUTIONALISM AND ANTI-OLIGARCHY: INDEPENDENT OR
CO-DEPENDENT VALUES?

Was that some part of F & F’s objective for TAOC (aside, I mean, from predictions of
where it might lead in the way of partisan political outcomes), or has that happened only
incidentally and secondarily to a strategy for restoring to American politics a capacity to
meet a looming dire threat to democracy here? (Get things moving in the urgently re-
quired direction of anti-oligarchy economic and other public policy. Tap, for that purpose,
into civic-identitarian longings64 and passions of constitutional patriotism.65 Do so by the
means of a reminder to your audience of how, over the long haul of our history, claims of
a constitutional anti-oligarchy commitment have been pressed to good eﬀect in the daily
courses of our politics.)

I suppose you could say that this question of motivation, for what is in any case a
splendid, eye-opening treatise on historic American political usage, is none of my business.
I think, aunque, that the question, these days, of where and among whom the idea of
constitutional democracy ﬁnds its friends and supporters is one as crucial to prospects
for the survival and advance of just and legitimate government across the globe as are
the questions of domination and subordination that also are at stake in the anti-hierarchy
political cause.66

Suppose we could conclude that F & F have neither shown nor professed to show that
(re)elevating issues of economic-structural policy to constitutional pitch will surely result,
in the United States, in a decisive turn toward progressive policies of government admin-
istración. That would be some indication that support of constitutional democracy (as it
eran, for its own sake) is not averse—maybe is not entirely collateral—to their hopes
for the impact of their book. Such in fact is the guess to which I have been inclined.67

62
63
64

See supra Part IV.
See FISHKIN & FORBATH, supra note 1, en 69, 140, 361.
“Constitutional politics is . . . one of the central ways Americans forged and fought about national identity. . . .
Unusually among constitutions, ours became a deep root of national identity.” Id. at 4–5.
Progressive constitutional argument “mobilizes the impulse of constitutional patriotism; it shows how the
Constitution can undergird, rather than impede, core commitments to a broad distribution of power and
opportunity that progressives see as essential to a democratic society.” Id. en 6.
See generally FRANK I. MICHELMAN & ALESSANDRO FERRARA, JUSTIFICATION BY CONSTITUTION: A DIALOGUE ON POLITICAL
LIBERALISM (2021).
See supra Part I(mi).

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It cannot be a sure conclusion, aunque, because I see the case, también, for believing that once
you have got the political-economy question back into the place of an identity-deﬁning,
patriotic commitment (as opposed, eso es, to a mere partisan preference competing with
others no less sincerely held), a decisive advantage toward democracy-of-opportunity
must swing into place. Es, después de todo, hard (for us liberals and progressives, anyway) a
see how a Constitution serving as a platform for national identity—common purpose,
mutual commitment—could call for anything less.

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