DUALIST POPULAR CONSTITUTIONALISM

AMERICAN JOURNAL
of LAW and EQUALITY

DUALIST POPULAR CONSTITUTIONALISM
A Reply to Michelman

Joseph Fishkin and William Forbath

We deeply appreciate Frank Michelman’s thoughtful, nuanced, often profound essay about
the arguments at the heart of The Anti-Oligarchy Constitution. It is the kind of reading that
any writer of a book like ours hopes, but does not dare expect, to elicit. Michelman truly
understands what the book is trying to do. His reconstruction encourages us to think more
deeply about certain dimensions of the project, which is our task in this response.

The Anti-Oligarchy Constitution aims to reclaim for liberals and progressives the
forgotten ﬁeld of constitutional political economy. But it also aims to advance and deepen
understanding of popular constitutionalism, oﬀering what Michelman kindly calls a “richer
development” of how popular constitutionalism has worked in the past and how it might
work again in the future. Michelman asks whether we are “monists” or “dualists”: monists
believe that the only democratically legitimate force in politics is the “unbound rule by cur-
rent majorities,” whereas dualists believe that constitutions legitimately have some force
that can conﬂict with the political preferences of current majorities.1 As Michelman correctly
discerns, we are dualists, but of a kind that is unconventional today. We do not view the
Constitution as a force outside politics, constraining and setting the boundaries of
politics—a view that ﬁts well with the institutional vision that the Constitution must be im-
plemented by a body that stands (purportedly) above politics: los tribunales. That court-centric
version of dualism became the conventional liberal view in the middle of the twentieth cen-
tury and has stayed that way. It is as familiar as the air we breathe. Researching and writing
The Anti-Oligarchy Constitution led us to embrace a diﬀerent, and older, vista.

In an arresting metaphor, Michelman describes our approach as “splitting the atom”
of constitutional imperatives.2 We say there are such things as constitutional mandates or

1
2

Frank I. Michelman, The Anti-Oligarchy Popular Constitution, 2 AM. J.L. & EQUAL, No. 2, 2022, en 337, 344, 355.
He alludes here to Justice Kennedy’s opinion in U.S. Term Limits, Cª. v. Thornton, 514 A NOSOTROS. 779, 838 (1995)
(Kennedy, J., concurring) (“The Framers split the atom of sovereignty.”).

© 2022 Joseph Fishkin and William Forbath. Published under a Creative Commons Attribution-NonCommercial-
NoDerivatives 4.0 International license (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00044

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demands3 that have real force, but often that imperative force operates in politics—by
which we mean both the venue (the so-called political branches as well as the courts)
and the practice (political persuasion)—rather than through judges who restrain and ref-
eree politics. Michelman’s metaphor is apt today because of the present state of liberal,
court-centered constitutional culture (a pesar de, to be clear: we are not the ﬁrst to try to
split the atom in this manner).4 Part of what we are doing in the book is showing readers
that the present state of liberal, court-centered constitutional culture is anomalous in
American history. For the ﬁrst two-thirds or so of the history of the republic, the idea that
the Constitution is both a subject of politics and a framework for politics, and not merely
an object of judicial interpretation, was commonplace.5

For most of U.S. historia, voters, political movements, and politicians imagined and
inhabited the constitutional order very diﬀerently from the way we do. For them, "el
Constitution” was at once a text and tradition one interpreted and a system of
government—whose powers, purposes, and precepts one implemented and pursued over
time through political and legislative action. That is why, as we show in the book, legis-
lative debates about classic nineteenth-century topics—bank charters, tariﬀs, the parceling
out and sale of public lands—brimmed with constitutional arguments. Legislators on all
sides believed that they were not only the nation’s primary policy makers, they were also
its most important constitutional interpreters or “expositors.”

They made ﬁrst-order arguments about the Constitution’s meaning that were inter-
twined with policy arguments about the distributional eﬀects of diﬀerent policies. Many
believed that they had a constitutional duty as legislators to enact measures that thwarted
oligarchy and built a broad, open middle class. That was how the New Dealers saw the
tasks of administrative state building and enacting social insurance; it was how Lincoln’s
Republicans saw their Homestead Acts, their creation of the Freedmen’s Bureau, their dis-
tribution of abandoned plantations to the freed people. They were interpreting their con-
stitutional obligations and working out and implementing them through policy making
and institution building for their times. For most of our history, this was constitutional
common sense.

Michelman, at times, calls them “rights,” which does not capture all, or even most, of what we ﬁnd these demands
to contain; at other times, he calls them elements of the higher-law framework of politics, which suits us better.
Larry Sager’s pioneering work on the underenforced Constitution is an essential starting point. See LAWRENCE G.
SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE (2006).
Larry Kramer’s groundbreaking work in this ﬁeld opened the way for this argument. See LARRY D. KRAMER, THE
PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004). We are oﬀering a fuller account of
this constitutional practice across much of U.S. history that we developed through our exploration of
constitutional political economy.

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DUALIST POPULAR CONSTITUTIONALISM

Hoy, much of it seems foreign. The weighty constitutional signiﬁcance assigned to
(what we would now call) economic policy choices seems strange. Partly this is because, como
Michelman ably distills, economics has supplanted political economy. And partly it is be-
cause the pervasive talk of aﬃrmative legislative constitutional duties is foreign to today’s
highly judicialized constitutional culture: today we tend to think of the Supreme Court as
the primary, if not the sole, expositor of the Constitution’s meaning. This turns the Con-
stitution into a set of court-enforced limits the political branches must not transgress. Eso
is what sets up the apparent “paradox” Michelman ﬁnds lurking in the ideas we have
sketched.6 The Constitution, as higher law, is “necessarily conceived as distinct . . . de
a politics it is there to instruct.” Yet, at the same time, the Constitution “leaves to deter-
mination by politics the meaning of its instructions to politics.”7

This is exactly right. And it is only a series of relatively recent changes that have led
these ideas to seem striking and innovative, perhaps even paradoxical, in their dualist con-
ception of politics—so that the idea of a constitutional imperative operating in politics can
draw a plausible metaphorical comparison to nuclear ﬁssion. Generations of Americans
found these ideas obvious. (And they didn’t even have radio!)

Part of what Michelman’s response prompts us to explore, more deeply than we do in
the book, is the nature of dualism itself, as we conceive it. What exactly does dualism mean
if constitutional debate and argument are part of politics? What force does constitutional
argument have? Is it just a matter of rhetoric, a form of political persuasion to be judged
against other rhetorical strategies? The next section of this response explores that question.
Michelman also prompts us to ask: what is the role of courts in a political culture
where constitutional arguments are being made both in a more legalistic register inside
the courtroom walls and in a more political register outside them? The third section turns
to that question.

The ﬁnal section turns to Michelman’s challenge toward the end of his essay: why, él
asks, do we commend the renewal of political economy as constitutional subject matter for
the progressive side of national policy debates? Is this chieﬂy instrumental advice? Are we
instructing progressives to talk about the Constitution in the way our book invites because
it will be politically eﬀective? Or are we championing this renewal “for its own sake,” as a
better way to run a constitutional democracy?8

6
7
8

Michelman, supra note 1, en 337, 354.
Id. en 337, 354.
Id. en 337, 355.

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I. ACKERMANIAN DUALISM AND OUR DUALISM

Writing this book, we followed the trails of some important pioneers. One is Bruce
Ackerman.9 Ackerman opened the door to projects such as ours that explore the dynamics
of American popular constitutionalism in theory and historical practice with his path-
breaking We the People series.10 Ackerman’s initial insight in these books is that our con-
stitutional order has been repeatedly and dramatically altered by the American people in
ways that do not comport with Article V of the Constitution (which provides the means of
formal amendments). He convincingly demonstrates that the founding itself, and the mas-
sive constitutional changes of moments such as Reconstruction and the New Deal, have in
common the fact that they do not follow the rules of formal amendment. En cambio, a través de
política, Americans have changed our Constitution. Ackerman recognized that one way to
understand this history, both positively and normatively, is what he called “monism”: el
idea that there is no such thing as a constitutional constraint, and that really, political
majorities should and perhaps do have “plenary power” to enact their policy program.
Ackerman rejects monism, as do we. Pero, por supuesto, he also rejects (en efecto, rather demol-
pescados) the simplest modern form of dualism, which imagines that law is separate from
politics and that the only way for the people to alter our Constitution is through Article
V. En cambio, Ackerman imagines a more modern and more political sort of dualism. amer-
icans, he argues, engage in both “ordinary politics” and “higher lawmaking.” Higher law-
haciendo, in his view, is a multistep process in which national majorities, under conditions
of heightened political engagement and deliberation, repeatedly win popular support for
their plan to move our higher law in the direction they advocate. De este modo, for Ackerman,

We note some of the other pioneers at appropriate points below. No one can write about the history and theory of
taking the Constitution away from the courts without guidance from the pathbreaking work of Mark Tushnet. Ver
especially MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); MARK TUSHNET, TAKING BACK
THE CONSTITUTION: ACTIVIST JUDGES AND THE NEXT AGE OF CONSTITUTIONAL LAW (2020). On the decades-long eﬀorts
of the labor movement and its allies on the ﬁelds of popular, legislative, and administrative constitutionalism, el
theoretically inﬂected historical work of Sophia Lee, James Gray Pope, and Laura Weinrib was indispensable. Ver
SOPHIA Z. LEE, THE WORKPLACE CONSTITUTION FROM THE NEW DEAL TO THE NEW RIGHT (2014); James Gray Pope, El
Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law,
1921–1957, 102 COLUM. l. REV. 1 (2002); LAURA WEINRIB, THE TAMING OF FREE SPEECH: AMERICA’S CIVIL LIBERTIES
COMPROMISE (2016). Mark Graber’s pioneering work on the legislative and party-based constitutionalism of
Reconstruction Republicans was also crucial. See Mark Graber, The Second Freedmen’s Bureau Bill’s
Constitution, 94 TEX. l. REV. 1361 (2016). So too, Saul Cornell’s and Gerald Leonard’s joint and several work
on the early republic. See SAUL CORNELL & GERALD LEONARD, THE PARTISAN REPUBLIC: DEMOCRACY, EXCLUSION AND
THE FALL OF THE FOUNDERS’ CONSTITUTION, 1780s–1830s (2019); SAUL CORNELL, THE OTHER FOUNDERS: ANTI-
FEDERALISM AND THE DISSENTING TRADITION IN AMERICA, 1788–1828 (1999); GERALD LEONARD, THE INVENTION OF
PARTY POLITICS: FEDERALISM, POPULAR SOVEREIGNTY, AND CONSTITUTIONAL DEVELOPMENT IN JACKSONIAN ILLINOIS (2002).
Ver 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991); 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS
(1998); 3 BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION (2014).

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distinguishing ordinary politics from periods of higher lawmaking is a central intellectual
preoccupation.

For us, it is not. We view ordinary politics and constitutional politics as diﬀerent but
essentially continuous with one another—there is no bright line between them. En nuestro
vista, it is possible to engage in ordinary politics in a way that does not expressly or
implicitly invoke constitutional ideas and arguments; or it is possible to invoke such con-
stitutional ideas and arguments to varying degrees; or it is possible to engage in a highly
self-conscious form of constitutional politics that emphasizes constitutional ideas and
argumentos. Sometimes these forms of politics change our constitutional order after some-
thing that looks like a moment of higher lawmaking in Ackerman’s sense, and sometimes
they change our constitutional order without ever even convincing a durable majority of
Americans, simply through a gradual accretion of judicial appointments leading to court
decisions that alter the trajectory of the law.11

Ackerman’s interest in distinguishing higher from ordinary lawmaking is based on the
premise that we need to know which is which to know which constitutional changes are
legitimate and which are usurpations. Our reading of American historical practice is that
such questions are rarely entirely settled. Even when they seem ﬁrmly settled, hay
nearly always room to ﬁght about the reach or meaning of that settlement years or decades
or centuries later.12 Surprisingly often, Americans continue to ﬁght about the ﬁrst-order
question of whether the constitutional changes of the past are settled constitutional
bedrock or serious errors to be revisited and corrected. De este modo, we view constitutional pol-
itics as an ongoing struggle in which a central part of the subject matter of the struggle is
how to view the legitimacy and force of past changes to the constitutional order: the recent

Jack Balkin and Sandy Levinson are the foremost advocates of this view. We think their joint and several work
captures the relevant dynamics brilliantly. Ver, p.ej., Jack M.. balkin & Sanford Levinson, Understanding the
Constitutional Revolution, 87 Virginia. l. REV. 1045, 1068 (2001); Jack M.. balkin & Sanford Levinson, The Processes
of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489
(2006). Balkin has lately integrated his conception of this process of constitutional change through Article III
appointments with political science scholarship such as that of Stephen Skrownek, developing a way to
theorize how constitutional “regimes” become entrenched and eventually dislodged. See JACK M. BALKIN, THE
CYCLES OF CONSTITUTIONAL TIME (2020). Their scholarship is also a foundation for our thinking about the
political dynamics of constitutional ﬁdelity as a contested ground of national identity, a topic to which we will
return toward the end of this essay. See SANFORD LEVINSON, CONSTITUTIONAL FAITH (1989); JACK M. BALKIN,
CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011).
The closest thing to a permanently settled constitutional change in American history is the abolition of chattel
slavery. One might also cite the abolition of de jure segregated schools in Brown v. Board of Education. Y todavía,
the continuing ﬁght over the reach and meaning of Brown has been a central battleground of American
constitutional politics for almost seventy years. And indeed, Americans also continue to ﬁght about the
question of exactly what we abolished when we abolished slavery.

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conservative counterrevolution; the civil rights revolution of the 1960s; the New Deal;
Reconstruction itself.13

The Anti-Oligarchy Constitution traces a tradition of constitutional argument that op-
erated for the most part through politics—as did its various opponents, from pro-slavery
constitutionalism to pre–New Deal anti-redistributive Lochnerism to the modern forms of
originalism-inﬂected neo-Lochnerism that are central to the popular-constitutional agita-
tion on the contemporary American right. Sometimes the constitutional dimensions of the
political arguments were more explicit, sometimes less. A veces, it was right-wing
activism by the Supreme Court and other courts that prompted progressive political actors
to take up a more explicitly constitutional set of arguments by way of response. That pat-
tern is one we ﬁnd encouraging, in a way. The present right-wing Supreme Court is doing
great damage to the republic, but there is a potential silver lining if the Court inspires
modern progressives to recover a sense of how to do constitutional politics.

The careful reader will quickly discern that from the perspective of avoiding the col-
lapse of dualism into monism, we face a considerably harder road than Ackerman. Where
he has a temporal distinction between ordinary politics and higher lawmaking, we see both
happening all the time. Where he draws a bright-line rule that lends legitimacy to some
forms of constitutional politics and denies it to others, we see the question of legitimacy as
forever contested, recursively, through constitutional politics itself. This is part of why
Michelman perceptively questions exactly what our version of dualism looks like or
whether we are dualists at all.

En nuestra opinión, political actors are bound by the higher law of the Constitution because
Americans collectively believe that to be the case. For over two centuries, Americans have
engaged in a practice of making claims on the Constitution and arguing that those claims
have a force that goes beyond and cannot be immediately overridden by the political will
of a present-day majority. Not only lawyers but also politicians and voters think this way.
This practice of constitutional politics has real value. It creates a kind of common
ground—often hotly contested ground, but still common ground—on which Americans
can stake out rival visions of our fundamental political commitments as we attempt to

This pattern of continued struggle over the meaning and outcome of past constitutional struggle is central to the
dynamics Reva Siegel has identiﬁed in her important work on the politics of constitutional memory. Ver, p.ej., Reva
B. Siegel, 2005–06 Brennan Center Symposium Lecture, Constitutional Culture, Social Movement Conﬂict and
Constitutional Change: The Case of the De Facto ERA, 94 CAL. l. REV. 1323, 1350 (2006) [hereinafter Siegel,
Constitutional Culture] (“Disputes about forging a common future are . . . expressed as claims about the
meaning of a shared past.”); Reva Siegel, The Politics of Constitutional Memory, GEO. J.L. & PUB. POL’Y
(próximo 2022). Por ejemplo, for one of the authors’ reﬂections on the contemporary implications of the
continuing political struggle over the meaning of the Civil War and Reconstruction, see Joseph Fishkin, El
Dignity of the South, 123 YALE L.J. ONLINE 175 (2013).

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persuade one another.14 Movements of the disenfranchised and dispossessed—members
of an imagined, inclusive national political community they hoped to bring into
being—have made great use of this practice.15 The same goes for generations of radical
izquierda, as well as mainstream progressive, reformers in the democracy-of-opportunity tradi-
ción, who championed dramatic changes in the inherited constitutional scheme.16 Many
were radical democrats, yet they were not “democratic monists.” They attacked plutocratic
institutions like the Senate and the Court and called for structural reform to empower
democratic majorities. But they did so in the name of the higher-law constitutional prin-
ciples whose adventures we have chronicled: anti-oligarchy, wide-open opportunities for
decent livelihoods and material well-being, y (sometimes, too rarely) racial inclusion.
They were interpreting and making claims on the Constitution, and they said so—even
as they tried to change the inherited text, and sometimes succeeded.

En suma, a form of dualism is baked into American politics itself.17 Political actors make
constitutional arguments not simply as a way of putting a rhetorical exclamation point on
something they think very important, but instead because we share an understanding that
part of our project of collective self-government is to be bound by certain commitments,
whose meanings are therefore worth ﬁghting about. Unusual among constitutions, el
A NOSOTROS. Constitution is a root signiﬁer of national identity.18 When we ﬁght about constitu-
tional principles and their meaning, we ﬁght about who we are as a nation and what kind
of national community the Constitution promises to promote and redeem.19

See Siegel, Constitutional Culture, supra note 13, en 1353 (explaining how this dimension of our constitutional
culture “channels dispute by requiring advocates to express disagreement within a shared tradition, rather than by
withdrawal from it”); id. en 1419 (describing constitutional contestation as “a practice of civic attachment. Él
allows citizens to experience law, with which they disagree, as emanating from a demos of which they are a
part.”); Roberto C.. Correo & Reva B. Siegel, Democratic Constitutionalism, in THE CONSTITUTION IN 2020 ( Jack M..
balkin & Reva B. Siegel eds., 2009).
A canonical account is Hendrik Hartog, The Constitution of Aspiration and “The Rights That Belong to Us All,"
74 j. AM. HIST. 1013 (1987).
Aziz Rana explores this terrain in brilliant detail in his forthcoming THE RISE OF THE CONSTITUTION, ch. 2
(“Constitutional Disillusionment”) (próximo 2023).
De este modo, our book oﬀers an interpretation in the “constructivist” mode Michelman nicely distills, Michelman, supra
nota 1, en 337, 348, 351, 352. (quoting JAMES E. FLEMING, FIDELITY TO OUR IMPERFECT CONSTITUTION: FOR MORAL
READINGS AND AGAINST ORIGINALISMS 20–21 (2015)).

18 We are indebted here to JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS: HIDDEN HISTORIES OF AMERICAN LAW 1–12

(2007).
For discussions of the role of this form of reasoning in constitutional argument that are central to our thinking,
see SANFORD LEVINSON, CONSTITUTIONAL FAITH (1989); JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH
IN AN UNJUST WORLD (2011); JACK M. BALKIN, LIVING ORIGINALISM (2011). For reasons our book brieﬂy explores, nuestro
Constitution is unusual in playing this particular role in our national identity. But let us be clear: the book has no
truck with the notion that the United States is exceptionally liberal. A NOSOTROS. constitutional culture has never lacked for
accounts of “We, the People” as a nation constituted by and for white men. Not in the past; not today.

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With the Constitution playing this role in the national story, it is not surprising that
people with rival views about the direction of the nation’s political economy and much else
have worked to ground their views in arguments about the Constitution. Esto incluye el
advocates of the anti-redistributive, “laissez-faire” constitutional politics that crystallized
into Lochnerism in the 1900s. That constitutional politics helped give shape to the modern
conservative account of an America founded on rugged individualism and limited govern-
mento, private property, guns, and godliness.

We see the power of this account to inspire a broad swath of citizens, lawmakers, y
judges to act militantly on its behalf today. It not only resonates with conservative values
but helps deﬁne them as a form of constitutional patriotism. Missing from our current
constitutional politics is a comparably robust progressive account of the kind of commu-
nity the Constitution promises to secure for all. Past generations of progressives, aunque,
oﬀered an account of national community grounded in the democracy-of-opportunity tra-
condición. They argued that the Constitution promises—and obliges us to build—a nation
with a democratic rather than oligarchic political economy: one in which all Americans
enjoy a decent education, material security, and a genuine opportunity not only to earn a
decent livelihood but to do something with value in their own eyes and to engage in the
aﬀairs of their community and the larger society. This account shows how the Constitu-
tion can undergird, rather than impede, core commitments to a broad distribution of
power and opportunity that progressives see as essential to a democratic society.

Taking the measure of this forgotten account, Professor Michelman observes, bastante
accurately, that the “historical course of American Constitution-centered, political
economy-focused debate,” as we ourselves recount it, is not a history of “the democracy-
of-opportunity side” prevailing over time, until it becomes “hegemonic.”20 Not at all.
The democracy-of-opportunity side lost at least as many past battles as it won, y eso
should be clear by now that we oﬀer no assurances about the future. No certainty of a
“tidal resurgence.”21 We do, sin embargo, spy some contrasts between past and present worth
noting.

Not since the Reconstruction era’s Republicans has the U.S. seen a major party bring
together all three strands of the democracy-of-opportunity tradition as it mounted major
political-economic reform. The Democratic Party during the New Deal confronted the
nation’s mass economic pain and rising class inequality by bringing together the
anti-oligarchy principle and the imperative to build a middle class open and broad enough
to accommodate the nation’s industrial workers—its white workers. That Democratic
coalition included the champions of Jim Crow, a reactionary core that killed eﬀorts to

20 Michelman, supra note 1, en 337, 352.
21

Id. en 337, 347.

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re-enfranchise the Black South and weave racial inclusion into the New Deal’s democracy
of opportunity.

Today’s crisis of mass economic pain and mounting class inequality is the ﬁrst one in
our history since Reconstruction in which there is a major party that might once again
bring all three strands together at the center of its program: the Democratic Party, No
longer anchored in the reactionary precincts of the white South. Whether or not it will
do so is history not yet written. Nor is it yet possible to see clearly how the inevitable
conﬂict will play out between a future Democratic majority and a hostile, and highly
politically engaged, Supreme Court.

II.

THE ROLE OF THE COURTS

In the two centuries and more of constitutional history canvassed in The Anti-Oligarchy
Constitution, courts are usually on the reactionary or conservative side. This is a story we
very much want our more progressive readers to understand. A century ago, the federal
courts in particular were the locus of opposition to Progressive eﬀorts to preserve the
economic foundations of democracy in an age of rapacious accumulation of power by
organized wealth. Their jurisprudence elevated property and contract rights to condemn
unions, redistribution, and popular eﬀorts to preserve the economic foundations of repub-
lican government. Today the courts, as ever the least democratic branch, are once again
developing novel doctrines in a thinly veiled results-oriented jurisprudence aimed at
vindicating the political aims of the Republican Party—including rebuilding a more deeply
oligarchic political economy. This is not a random pattern of events. We argue that there
are reasons, not only in practice but also in theory, why courts are likely, more often than
no, to be the branch most opposed to the democracy-of-opportunity tradition. A reader
who glanced through those chapters of the book might well be left with the expectation
that its authors are likely done with the courts—that we are likely ready to argue for an
end to constitutional judicial review. Many thoughtful people have taken that position, a
century ago and today.22

Michelman perceptively notes that we are not among them. Una vez más, this raises
important questions. How do we understand the role of the courts? Do we view them

For contemporary and theoretically sophisticated advocates of versions of this view, see JEREMY WALDRON, LAW AND
DISAGREEMENT (1999); JEREMY WALDRON, THE DIGNITY OF LEGISLATION (2009); Samuel Moyn, On Human Rights and
Majority Politics, 52 VAND. j. TRANSNAT’L L. 1135 (2021) (arguing for a Frankfurterian skepticism of judicial review
and an appeal to pursue human rights through majoritarian politics); The Contemporary Debate over Supreme
Court Reform: Origins and Perspectives, Public Meeting of the Presidential Commission on the Supreme Court of the
United States ( Junio 30, 2021) (written statement of Nikolas Bowie), https://www.whitehouse.gov/wp-content
/uploads/2021/06/ Bowie-SCOTUS-Testimony.pdf (arguing for an end to the “undemocratic” practice of
judicial invalidation of federal legislation).

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as having a potential role in implementing an anti-oligarchic constitutional vision? En el
book we talk about judicial interventions in constitutional political economy in terms of a
sword (striking down legislation), a shield (upholding it against challenge), and a guide
(interpreting it). This way of mapping the terrain, which we developed in response to
an earlier exchange with Michelman, is useful for a few reasons; one of them is that it
helps illustrate why, even though our main general prescription for courts is that they
should largely get out of the way of democratic legislation, their role is more complex than
eso. There is more for them to do.

The democracy-of-opportunity tradition we chronicle has always emphasized the pri-
macy of legislation and administration in building a democratic political economy. Este
work involves much that courts cannot initiate: initial endowments, social insurance, pub-
lic investment in job opportunities, and much else. But courts often need to interpret and
implement legislation and administrative action of all these kinds. Courts can and should
consider questions of constitutional political economy when they do. It is not simply a
matter of upholding legislation against collateral constitutional challenges (the shield); él
is also a matter of enforcing and implementing and interpreting the statutes and regula-
tions in a way that gives force to their constitutionally important aims (the guide).

But what about the sword? Today some are once again calling for an end to constitu-
tional judicial review—or at least an end to the Supreme Court’s power to overturn federal
statutes. As a matter of democratic principle, they argue, the voters and their representa-
tives should have the ﬁnal word in national lawmaking, not the courts. We see the future
of judicial power in a more contingent and experimental light. Enacting a progressive
agenda in the democracy-of-opportunity tradition would involve much legislation that
clashes with the political-economic outlook animating today’s Court. If and when progres-
sives succeed, and conservatives attack this agenda with constitutional arguments in court,
we hope progressives will respond with a resurgence of popular and legislative constitu-
tionalism. Party leaders, candidates, and lawmakers should argue that reforms to labor
law, election law, social insurance, and a wide variety of other ﬁelds are constitutional ne-
cessities. Courts must back oﬀ to give such popular constitutionalism room to breathe. Si
the present Supreme Court will not, Congress and the President should force the issue,
turning to a wide array of statutory tools at hand, including what Sam Moyn nicely calls
the “ﬁne-tuning of jurisdiction,” taking away from the Court as much power as the occa-
sion demands.23 Nonetheless, this may surprise some readers, but we see room for a dis-
tant future court, a court very diﬀerently constituted than the present court, to hold, con
the dissenters in cases such as Dandridge or Rodriguez, that the Constitution cannot

See The Court’s Role in Our Constitutional System, Public Meeting of the Presidential Commission on the Supreme
Court of the United States (Junio 30, 2021) (written statement of Samuel Moyn).

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DUALIST POPULAR CONSTITUTIONALISM

tolerate laws that consign some citizens to a socioeconomic position so subordinate that
they are excluded from any real opportunity to participate in our economic life.24 State
tribunales, nearly all of which have heard cases in this vein regarding school ﬁnance, tener
shown that it is possible for courts to use the sword in a tempered way to require and
impel legislative responses, sometimes spurring reluctant legislatures to take up their con-
stitutional duties in such spheres.

Además, we do not aspire to take the Constitution entirely away from the courts
because courts at their best can do invaluable work of several kinds: the special work of
protecting the most despised and politically untouchable minorities, such as prisoners; el
Elysian work of protecting the political process from corruption and distortion; and at the
forefront of our minds these days, the liberal work of blocking and checking the author-
itarian and antidemocratic forces in our polity, doing what they can to help prevent the
collapse of liberal democracy into some form of illiberal autocracy.

A veces, courts are contingently the best positioned to do each of these sorts of
trabajar, in part because of the unique forms of persuasive power that the courts have ac-
quired over our long national romance with constitutional judicial review. When a court
says something is required by the Constitution, a lot of people will tend to believe it. Eso
can be quite useful. En efecto, the modern neo-Lochnerian right has made enormous use of
él, bringing arguments from the courts into politics and from politics back into court, se-
cure in the knowledge that the same words spoken by a Justice of the Supreme Court carry
additional persuasive weight regarding what the Constitution really means.

Michelman reads us as endorsing a view that some constitutional principles are—as
Larry Sager’s important work in this ﬁeld would put it—underenforced.25 That is, alguno
constitutional principles are enforced not in court but through politics. We agree. Alguno
who share this view with us might aspire to build a principled taxonomy of distinct areas
where courts should lean in or back oﬀ. (“[I]n a word, ‘footnote 4.’”26) Nosotros, sin embargo, see a
great deal of contingency and overlap in the possible future institutional roles.

Tribunales, like legislatures and executives, are engaged in constitutional politics. Eso es
very often why courts contain the Justices they do; it is often why courts rule as they do;
and it is why so many arguments migrate from politics into courts and from courts into
politics as they frequently do. Tribunales, legislatures, and executives have diﬀerent but over-
lapping forms of power and authority in constitutional politics; their roles have shifted
throughout our history and will undoubtedly shift again.

Our view is that the federal courts need to take a giant step back from their present
posture: a form of judicial supremacy so extreme that it is dangerously close to judicial

Dandridge v. williams, 397 A NOSOTROS. 471 (1970); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 A NOSOTROS. 1 (1973).
See SAGER, supra note 4.

24
25
26 Michelman, supra note 1, en 337, 353.

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exclusivity over constitutional interpretation. We hope for this backing oﬀ, but we do not
expect it in the near term. En cambio, we expect pitched conﬂict in the coming years between
the elected branches and the courts over the direction of the nation’s political economy.27
A progressive Congress would have a variety of tools at its disposal, including well-tuned
jurisdiction-stripping, to force the courts out of the way if the situation demands it.

And yet in the end, we are situated diﬀerently from our Progressive forebears, OMS
eran (rightly) profoundly skeptical of the courts of their time, and of the entire institution
of judicial review, to the point that some of them called for its outright abolition. Those
Progressives were operating in an environment without the criminal procedure revolution,
without structural reform injunctions by courts, and most fundamentally without the en-
tire liberal-legalist legacy of important rights claims structured to be enforced by lawyers
in court.

This court-centered, rights-based way of thinking has had a variety of profoundly bad
consequences. It has helped erase from popular and legal memory the claims of constitu-
tional duty and obligation that are at the heart of the democracy-of-opportunity tradition.
It has narrowed, to the point of very nearly eﬀacing, core constitutional claims about labor
rights and social provision. But even now—even in their deeply compromised, ﬂawed,
self-aggrandizing, and politicized state—courts still can do too much good for us to give
up on them entirely.

What is needed, in our estimation, is a shift in the balance of power that would teach
los tribunales, and the American people, that courts do not have a monopoly over constitu-
tional argument. Después, as part of a dialogue or, more realistically, an ongoing contest
over constitutional meaning and interpretive authority, courts should (and certainly will)
continue to play a role in constitutional politics.

We would judge such interventions on the strength of the substantive constitutional
arguments more than the shifting boundaries of judicial and legislative roles. We are con-
ﬁdent that reviving the democracy-of-opportunity tradition involves a vastly expanded
role for legislative and popular constitutionalism. Courts must back oﬀ—and Congress
and the White House must curb them if they refuse. But beyond that, there is a great deal
of future history not yet written in which the Court might yet play a secondary but im-
portant, even perhaps complementary, role in cementing a future democracy of opportu-
nity for all Americans.

III. CONSTITUTIONAL NARRATIVE IN POLITICS

Finalmente, let us brieﬂy turn to the set of questions Michelman poses toward the end of his
essay regarding the political eﬀects of the choices progressive politicians might make to

For a discussion of this conﬂict, see JOSEPH FISHKIN & WILLIAM E. FORBATH, THE ANTI-OLIGARCHY CONSTITUTION:
RECONSTRUCTING THE FOUNDATIONS OF AMERICAN DEMOCRACY ch. 9 (2022).

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speak in a constitutional register about what is now conceptualized as social and economic
política. Is it fair to assume, and do we assume, Michelman asks, that engaging in more
explicit constitution talk about things like labor and social insurance, antitrust and bank-
ing reform, on the campaign trail or in state houses or on the Senate ﬂoor, is going to
redound to the net beneﬁt of progressive politicians?

Aquí, we are unequivocal: we deﬁnitely do not know. We are not political consultants.
That question is an interesting question, but it is not our question. We argue in the book
that today’s progressives should, con el tiempo, aim to rebuild something of the rich world of
arguments and precedents outside of court that were central to their forebears’ constitu-
tional politics. But we urge this without any certainty about the short-run eﬀect.

Over the long run, sin embargo, we do have a view about what this would do. It would
gradually reshape the terrain of constitutional politics. Making such constitutional argu-
ments in the political arena would, con el tiempo, rebuild a more decentralized world of con-
stitutional debate in which a variety of political leaders and other institutional actors,
many operating in normal politics, ﬁght out the Constitution’s meaning. In the long
run this world would be more hospitable than the present one to the core arguments of
the anti-oligarchy tradition, whose revival is important to the long-run survival of the
United States as a democratic republic. Those arguments speak often in terms of legislative
constitutional duty rather than judicially enforceable constitutional prohibition—a forgot-
ten vocabulary that is essential to the constitutional case for the kind of major redistribu-
tion of wealth and power at the heart of much of the progressive agenda.

The same is not true for the constitutional case against such reforms. The neo-
Lochnerian constitutional outlook now afoot in the courts and public debate can work
quite comfortably within the conﬁnes of our current, court-centered constitutional think-
En g, in which the Constitution mainly operates to empower courts to strike laws down.
Conservative politicians and the conservative legal movement have done much over
the past several generations to bring certain forms of constitutional political-economic
argument into mass politics. They have convinced many ordinary voters to adopt some
puntos de vista (or at the very least, slogans) regarding constitutional interpretation, and they have
convinced the same voters to care quite a lot about judicial appointments. What was orig-
inally an outsider challenge to the Warren Court through politics has gradually become a
formalized channel through which our ruling coalition of Supreme Court Justices and
other judges must demonstrate their right-wing political commitments in order to be
considered for appointment. Liberals, por el contrario, have retained a quaint and ultimately
disastrous attachment to the supposed autonomy of constitutional law from politics.28 It is
time for this attachment to give way, and for progressives today to make their constitu-
tional arguments openly in politics, as their forebears did.

Ver, p.ej., STEPHEN BREYER, THE AUTHORITY OF THE COURT AND THE PERIL OF POLITICS (2021).

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Enacting a program of major redistribution, worker empowerment, and innovative
administrative state building will require building a big, durable multiracial majority on
the national scene. It will require a Democratic Party that can hold fast to a robust politics
of race and sex equality while also embracing a politics of ﬁghting economic and political
oligarchy. That is an enormous political challenge, regardless of whether or how progres-
sive politicians speak about the Constitution.

Any party that hopes to take on that challenge today faces a range of obstacles. One in
particular is pertinent here: the profound skepticism and disillusionment about the capac-
ity of government to improve anyone’s lives that conservatives have successfully inculcated
in Americans over the past several generations. They have done this in part by diminish-
ing state capacity and deliberately making programs of economic regulation and social
provision inaccessible or ineﬀective.29 They have also done it in part through legal and
constitutional narrative. They have sold Americans a story in which American individu-
alism and limited government is our constitutional heritage, constitutive of us as a nation.
On this view, key elements of the progressive program are foreign imports that our con-
stitutional heritage condemns: modern administrative state building, promoting broad
class-based unionism, major new social insurance programs, public banking and credit
in the service of social and economic democracy, y más. If the popular constitutional
narrative condemning such policies is unanswered, it can only deepen skepticism and
despair about the progressive program.

The Anti-Oligarchy Constitution shows that every one of these ideas was born in the
United States30—and that all of them were understood by broad swaths of Americans,
often by large majorities of Americans and their leaders, to be exactly what the Constitu-
tion demanded of government. That claim was how generations of reform-minded
politicians, movimientos, and opinion-makers met the constitutional claims of their foes.
You can’t beat a constitutional narrative without a counternarrative. Here that requires
recovering a fuller account of our constitutional experience, one that prevailing popular-
constitutional memory, cultivated by the right, has erased.

CONCLUSIÓN

So, while we are not in the business of telling politicians what will win them elections
tomorrow or next year, we are convinced that in the long run, this new (or newly recov-
ered) constitutional narrative about the objects of government is essential. It is a narrative

For a view from political science, see AMY FRIED & DOUGLAS B. HARRIS, AT WAR WITH GOVERNMENT: HOW
CONSERVATIVES WEAPONIZED DISTRUST FROM GOLDWATER TO TRUMP (2021).
Por supuesto, many ideas were born here and elsewhere. But the point is that these are not foreign imports brought
over today from Western European social democracies.

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grounded in a form of constitutional patriotism that contrasts sharply with the ethno-
nationalist appeals now resurgent in our polity. It is a narrative about what we can,
and must, do collectively together under our Constitution to preserve the economic foun-
dations of our republic.

We think a move toward a self-conscious constitutional politics on the progressive left
will not only counter but also complement the constitutional politics already central to the
libertarian right (and some other parts of the right). Mostly that is for the reasons we have
just sketched. But we also believe that making arguments about constitutional political
economy as part of politics—as Americans have done for most of our history, and as con-
servative Americans continue to do today—is valuable “for its own sake.”

Constitutional democracy is a social practice. We can try to outsource the constitu-
tional part of the practice to courts and lawyers. Liberals tried to do that for over half a
siglo. But in the end, we don’t think it can work. Judges and lawyers have important
roles to play in any constitutional order. But if the people and their elected leaders aban-
don the practice of constitutional argument—and abandon their sense of constitutional
duty and obligation, particularly with respect to political economy—the danger is too great
that the constitutional system will be captured by some elite faction with its own views,
unresponsive to the people.

We think there is one big thing that the libertarian right gets right. Constitutional pol-
itics must address political economy. We ﬁrst began to think along these lines long ago,
engaging with the work of a constitutional thinker who is also an actor in the present
book’s story line: Frank Michelman.31

Among many things we have learned from Michelman is this. A respect-worthy con-
stitutional order must address what it takes to make each person a consenting member—a
charter member—of the political community. Like Michelman in his decades-long engage-
ment with John Rawls, we conclude that this means our practices of constitutional argu-
ment and debate cannot be indiﬀerent to the social and economic conditions of
democratic lawmaking.32

The authors have beneﬁted not only from studying and working through Michelman’s ideas but also from several
prior rounds of written engagement with Michelman. See William E. Forbath, Caste, Clase, and Equal Citizenship,
98 MICH. l. REV. 1 (1999); Guillermo E.. Forbath, Constitutional Welfare Rights: Una historia, Critique, y
Reconstruction, 69 FORDHAM L. REV. 1821 (2001); Frank I. Michelman, Democracy-Based Resistance to a
Constitutional Right of Social Citizenship: A Comment on Forbath, 69 FORDHAM L. REV. 1893 (2001); Frank I.
Michelman, The Unbearable Lightness of Tea Leaves: Constitutional Political Economy in Court, 94 TEX. l.
REV. 1403 (2016); Joseph Fishkin & Guillermo E.. Forbath, The Democracy of Opportunity and Constitutional
Política: A Response, 94 TEX. l. REV. 1469 (2016).
The latest result of this generative engagement with Rawls is FRANK I. MICHELMAN, CONSTITUTIONAL ESSENTIALS: ON
THE CONSTITUTIONAL THEORY OF POLITICAL LIBERALISM (próximo 2022).

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The libertarian right has its views about the constitutional essentials of a political econ-
omy that ensures such conditions. We have ours. We think that a political economy that
measures up to the principles of the democracy-of-opportunity tradition is essential for
renovating and preserving constitutional democracy in this country. We read Michelman
as concurring: it would be better for constitutional democracy “for its own sake” if pro-
gressives attempt—with no guarantee of success—to persuade fellow Americans, sobre el
plane of constitutional politics and lawmaking, that this is so.

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