Make Progressive Politics Constitutional Again
Two years of a devastating pandemic have exposed deep cracks in the U.S. political and economic order. After decades of economic policies that hollowed out the middle class, shocking numbers of Americans lacked the economic means to withstand COVID-19’s disruptive force. But the pandemic also demonstrated that those decades of economic policy are not set in stone. For a brief moment, before collapsing back into familiar patterns of polarization and obstruction, the federal government stepped in with the money to rescue vast numbers of Americans from economic ruin.
The Democrats are, for now, about two Senate votes shy of enacting a series of major reforms, from addressing climate change to protecting voting rights and making real progress in the fight to rein in the outsized political and economic power of the rich. But even assuming that the Democrats manage to enact such measures—overcoming our system’s many antidemocratic veto points, such as the Senate itself—the toughest challenge is still to come. The looming risk is that all such reforms may be unraveled by our archconservative Supreme Court. The Court has made the Constitution a weapon for selectively striking down legislation the justices disfavor. They are highly likely to wield it against laws that aim to repair economic or political inequality.
The Court can do this with near-total impunity today because many Americans accept the idea that the Supreme Court is the only institution with any role in saying what the Constitution means. Congress and other elected leaders, at best, can fill in the few blanks that the courts have left open. Rather than contesting the Court’s power to make highly questionable judgments about the meaning of the Constitution, most liberals today defend the Court’s authority. Their top complaint about the current Court is that it doesn’t have sufficient respect for its own precedents, which today’s majority is fast overturning as it lurches further right.
Mounting an effective challenge to our conservative juristocracy requires understanding how we got here. It is not just that the right out-organized the left. On the contrary, liberals have contributed to conservatives’ success by imagining constitutional law as an autonomous domain, separate from politics. Liberals have likewise imagined that most questions about how to regulate the economy are separate from politics, best left to technocrats. These two ideas have different backstories, but both were at the center of a mainstream liberal consensus that emerged after World War II. For postwar liberals, constitutional law was best left to the lawyers, economic questions to the economists. These two key moves sought to depoliticize vast domains that had previously been central to progressive politics. Together they tend to limit the role of the people and the representatives they elect.
Conservatives never accepted either of these moves. They have a substantive vision of a political and economic order they believe the Constitution requires, and that vision translates easily into arguments in court—arguments against redistribution, regulation, and democratic power. Inspired by their forebears a century ago in the Lochner era, when conservative courts routinely struck down progressive reforms for violating protections for property and contract, today’s conservatives have methodically installed movement judges who reliably advance those goals. And they are succeeding. Witness the litigation over the Affordable Care Act (ACA). Although the law narrowly survived, conservatives outside and inside the courts embraced novel arguments that Congress had transgressed constitutional limits on its powers. Liberals disagreed, offering arguments that the ACA was permissible. But they never made the argument their progressive forbears might have made: that something like the ACA is required to meet our constitutional obligations.
In response to the right’s decisive politicization of the courts, some liberals and progressives have proposed judicial reforms aimed at restoring an imagined past of judicial nonpartisanship. But that golden age is a myth. Constitutional confrontations over rival visions of our political and economic future are inevitable; courts are always engaged in such contests. The problem is not that the judiciary has a vision of constitutional political economy. The problem is that that vision has strayed much too far from the views of the elected branches and the American people.
Bringing the Court back in line will be a challenge. Fortunately we have precedents to draw from. For the first two-thirds of U.S. history, generations of reformers—from Jacksonian Democrats to Reconstruction Republicans to New Deal Democrats—made arguments in what we call the democracy-of-opportunity tradition. These reformers argued that the Constitution not only permitted but compelled legislatures to protect U.S. democracy in the face of oligarchy and (later) racial exclusion. The Constitution, in this tradition, not only permits, but compels, the elected branches to ensure the broad distribution of power and opportunity that are essential to a democratic society.
Reformers made these arguments in the teeth of hostile courts determined to impose court-made doctrines to shield elites from democratic encroachment. But the elected branches could and often did challenge the Court’s interpretation of the Constitution, especially about the trajectory of the nation’s political economy—the political decisions that shape the distribution of wealth and power through our laws and institutions.
This vision is worth retrieving today. Some progressives will think this is a misguided, even dangerous, proposal. If constitutional law is the domain of the courts, and courts are dominated by conservatives, why should we risk “re-constitutionalizing” our claims about political economy? Why, in short, should progressives make our politics constitutional again? The fear is understandable: that any talk of the Constitution cedes power to courts.
But the opposite is true. Not speaking about the Constitution in politics cedes power to courts. By making claims on the Constitution, we show that all branches of government, and the people themselves, have the authority and duty to debate what our constitutional principles require.
There is no future for the liberal idea (never adopted by conservatives) of a sharp separation between constitutional arguments in court and political arguments outside the courts. The border between the two is too thin and porous. Arguments move across it both ways, with profound effects. Declarations by courts shape the terms of public debate and move the horizons of political possibility; arguments in politics shape arguments in court. We are all responsible for participating in debates about the meaning of the Constitution, and we ought to recognize the power of this shared commitment. In the long run, it can help us build a more egalitarian and democratic society than some of our elites, on and off the Court, would accept.
What might such efforts look like? Today’s conservatives wield their anti-redistributive vision of constitutional politics primarily as a sword for attacking and striking down legislation. In the progressive constitutional politics we envision, rooted in the democracy-of-opportunity tradition, the Constitution in court functions largely as a shield: to demonstrate to judges, and the rest of us, why egalitarian, democratic legislation should be upheld against constitutional attack. We see at least three key battles. First, it is time for progressives to reclaim the First Amendment, contesting the way it has been weaponized as a tool to thwart egalitarian legislation in campaign finance and labor law. Second, we must reforge the link between racial justice and political economy, widening the constitutional lens through which we see questions of race beyond antidiscrimination law and voting rights, to include substantive issues of mass incarceration, health care, public investment, job creation, and wealth inequality. Third, we must bring political economy back into view in areas where liberals retreated from politics and ceded power to economists, such as in antitrust, monetary policy, and corporate law.
To challenge the constitutional claims of hostile courts, progressives must first persuade our fellow Americans that certain progressive ideas are deeply rooted in American traditions of constitutional argument. In pursuing these ideas, we are not transgressing constitutional boundaries but rebuilding the economic and political foundations of U.S. democracy.
Repairing the First Amendment
The First Amendment was not always what right-wing courts today have made it. When it rose to prominence in the first half of the twentieth century, the First Amendment was invoked to protect not only dissenting, unpopular speech, but also workers’ freedoms of collective action, especially picketing and strikes. In the hands of lawmakers and labor leaders—and briefly even in the courts—it worked to diminish the inequalities of power between capital and labor, helping to preserve sources of countervailing power against oligarchy. But in the hands of today’s right-wing Supreme Court, the First Amendment has been “weaponized” as a tool for dismantling egalitarian forms of self-government. Our current court reads the First Amendment in ways that undermine not only the labor unions that workers democratically elect, but also the campaign finance regimes that our elected leaders enact in an effort to preserve democratic self-rule. It has become a pro-oligarchy Amendment.
This is a neat trick. It works the same way every time. In place of democracy, the modern court sees only a bureaucratic state. Instead of people attempting to work together to govern ourselves, the modern court sees, in every First Amendment case, simply a fight between two actors: a lone individual plaintiff whose “speech claims” are pitted against the regulatory goals of a hostile government. If we look beyond the lone plaintiff and the state, we see something else: the numerous ordinary people whose power, in politics and in economic life, depends on collective self-government as a bulwark against oligarchy.
Consider how First Amendment jurisprudence has recently played out in campaign finance reform. In a run of cases beginning in 2008, a narrow conservative majority eviscerated a series of campaign finance laws because they aimed, as the majority of justices put it, to “level the playing field” or “equalize” the power of different actors in the political sphere. One law was a “millionaire’s amendment” that allowed federal congressional candidates to raise extra money when faced with a rich, self-funded opponent; a similar Arizona law gave extra public matching funds to candidates who faced especially well-financed opposition. As Elena Kagan noted (in dissent), such a law “does not restrict any person’s ability to speak,” but instead, by its express terms, “creates more speech.” Still, such laws do indirectly disincentivize wealthy candidates and independent groups from spending their money in political ways. In other words, the laws intervene in our political economy in a way that inhibits the conversion of economic power into political power. The point was to inhibit oligarchy, and that is why this conservative Court struck them down.
A similar pattern of argument prevailed in 2010, when the same narrow majority held in Citizens United v. FEC that Congress could not bar corporations from spending their treasuries on political advertising. U.S. law had long drawn a line between corporations themselves, whose political activities were restricted, and political action committees (PACs), which are often affiliated with a corporation but are legally separate. (PACs are funded by corporations’ executives and supporters—who are citizens, as entitled as anyone else to participate in politics.) But in Citizens United, the majority swept that distinction away. If corporations themselves want to spend money to speak about politics, Anthony Kennedy held, “the Government” must not “impose restrictions on certain disfavored speakers.”
These arguments make clear that conservatives hold a vision of constitutional political economy in which economic power is freely convertible into political power—and in which what most people might call “corruption” is reconceived as ordinary politics, subject to constitutional protection.
In his Citizens United dissent, John Paul Stevens argued that “our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending.” His reference to “democratic duty” is highly unusual today. It evokes a lost world of democratic lawmaking, one that acknowledged that legislators have a constitutional duty to build the countervailing political power of the democratic majority against the wealthy few.
How should lawmakers wield this “compelling constitutional basis” to respond to Citizens United? Both state legislatures and Congress could give large unconditional sums of campaign money to any serious candidate for office. They could create public small-donor matching funds, as in New York City, where the city matches small contributions (under about $250) from residents only at an 8:1 ratio. The higher the ratio, the closer the system comes to democratizing campaign finance, by giving ordinary voters the clout to shape who runs for office and who wins. H.R. 1, the democracy reform bill that was passed by the House of Representatives in 2021, but was filibustered in the Senate, would create a nationwide small-donor match system for congressional elections.
Lawmakers can also alter the political economy of running for office—and improve the prospects of candidates and movements with poor and working-class constituencies—by making it less expensive to run a campaign. Existing Federal Communications Commission rules require broadcasters to offer certain modestly favorable terms for candidates’ political advertising. Congress could go much further, adapting this rule to apply to Internet platform advertising and requiring broadcasters and Internet platforms to provide a floor of very inexpensive, or even free, advertising to political candidates. These ideas are realistic legislative actions that are consistent with even the current Court’s judge-made doctrinal Constitution. But, if enacted, they will face constitutional challenges anyway, with novel extensions of First Amendment doctrine offered as reasons to strike them down. To explain to the people—and not just to courts—why those challenges should fail, progressives should meet these arguments head on. There is not only constitutional power, but a constitutional duty, to preserve a democratic political economy.
The weaponized First Amendment has similarly upended labor law, turning its constitutional stakes upside down. Before World War II, Franklin Roosevelt and his congressional allies had argued that constitutional democracy and political self-rule could not exist alongside industrial “despotism.” Recalling the Jacksonians’ core anti-oligarchy insight, that the laboring “many” needed mass organizations with the clout to counter the wealthy “few,” New Dealers declared that their labor law reforms would come to the republic’s rescue by finally “incorporat[ing] the industrial workers in the polity of the United States” as a “check upon the power of ‘Big Business.’”
When law students learn about the New Deal and its defense of the industrial union today, they focus on the expansion of national power through the Commerce Clause. That was part of the story. But at the time, the era’s leading scholar of the Supreme Court, Edward Corwin, saw things quite differently. He saw a constitutional “revolution” taking place—not about the commerce power, but about the constitutional meaning of freedom. Safeguarding workers’ collective freedoms against private employers’ coercion—and guaranteeing “the economic security of the common man” through social insurance—were now “affirmative” governmental obligations.
Unsurprisingly, for decades the remnants of this vision have been squarely in the crosshairs of conservative politicians and judges. Starting with the counterrevolution of the late 1940s, the “right to work” movement has waged an ongoing campaign of legislation and litigation funded and supported by corporate executives and employers’ associations, as well as by wealthy anti-union ideological activists, to destroy the New Deal vision of labor as a source of countervailing social and political power against oligarchy.
The conservatives aimed to redefine unions as entirely private collective bargainers, acting exclusively on behalf of current members in their negotiations with a single employer. This campaign’s first great success, the Taft-Hartley Act of 1947, prohibited so-called secondary boycotts, in which workers act in solidarity to aid fellow workers in a dispute with a different employer. Taft-Hartley also prohibited “closed shops” (where an employer agrees to make union membership a condition of employment). From then on, there would be nonunion workers in unionized workplaces. But would the nonunion workers have an unfettered right to free ride on everything that the union had bargained for? Taft-Hartley allowed states to say yes, through “right to work” laws, which some (mostly Southern) states promptly enacted. Elsewhere unions often negotiated for “agency fees,” in which those who didn’t join the union would nonetheless pay a fee, reducing the free-riding problem. This raised a new issue: workers who disagreed with a union’s politics, and refused to join for that reason, might now be supporting some of its political speech.
In Abood v. Detroit Board of Education (1977), the Court saw a First Amendment problem with this arrangement and drew a careful line. A union could charge agency fees for the costs of collective bargaining, contract administration, and grievances (all of which it was required by law to undertake on behalf of all the workers at the workplace, whether union members or not). But it could not use agency fees for political speech. Later, however, the Court retreated from this position and came to view union activity as essentially private and economic, not public and political. That was how the Court justified upholding Taft-Hartley’s various limitations on activity such as boycotts and picketing against First Amendment challenges.
This compromise could not survive the Court’s recent rightward shift. In 2018, in Janus v. AFSCME, the Court brought the hammer down, overturning Abood and holding that, at least for public employers (the private-employer case is still to come), the First Amendment requires that every state become a “right to work” state. Unions must fully allow nonmembers to free ride, charging them no fees for the services the unions must provide them.
As today’s liberal justices stare down a far bolder and more sweeping antilabor intervention, insights about labor as a countervailing power are nowhere to be found. For lawyers focused on the action inside the Court, making such arguments in the face of conservative majorities might seem pointless. But this concern misses the role constitutional arguments play in public debate. They not only shape litigation but also send signals to the political branches and the people about what cases like Janus are really about—not speech, but constitutional political economy. Rebuilding a powerful progressive movement with a central place for organized labor requires forging a new understanding of the constitutional necessity of countervailing power—an understanding that will have to begin life outside the courts, but ultimately will reverberate both inside and out.
There is a path forward. Democrats committed to labor law reform have gained power within the party. Not since Harry Truman vetoed Taft-Hartley in 1947 (a veto later overridden by the conservative Dixiecrat/Republican coalition) has the White House spoken about workers’ right to organize the way President Biden speaks about it. Although Democrats do not yet have the votes in the Senate, the House recently passed a sweeping labor law reform bill, the Protecting the Right to Organize Act (PRO Act), which aims to repeal crucial elements of Taft–Hartley and boost efforts to organize unions. Among other things, the PRO Act would expand the definition of work to ensure that organized workers in today’s fragmented workplace—from fast food franchise workers to “contracted” Uber and Lyft drivers, to home health care workers—can bargain with the companies who benefit from their work. The PRO Act would repeal some of the most crippling restrictions on the rights to strike and boycott, such as the ban on so-called secondary actions, which blocks workers who have some organized economic clout from aiding workers who don’t. As the House Education and Labor Committee puts it, the Act would enable “unions to exercise these basic First Amendment rights.” It is very encouraging that this view—that the Taft-Hartley prohibitions violate basic constitutional rights—is once more gaining strength in Congress.
Enacting transformative labor law reform will involve fierce and protracted battles, not only in the Senate, but in courts (where challenges are inevitable), in workplaces, and in the public sphere. Getting there will require both Democratic majorities committed to such change and considerable labor organizing and action on the ground. As in the 1930s, workers will need to exercise their rights to organize, strike, and act in solidarity in contexts where this is now illegal, in the face of judicial injunctions, fines, and jail time.
Conservatives will attack any new legislative protections for workers with novel legal arguments. They will find First Amendment arguments against efforts to restrain employers’ anti-union activity. They will make federalism arguments that Congress lacks the power to upend states’ traditional common law and police-power authority to limit forms of labor solidarity. Progressives will need more than the old liberal response that Congress has broad power under the Commerce Power to regulate the national economy, and that Congress has exercised that power to promote labor peace. Both in court and outside of it, and in legislative bodies from city councils up to Congress, progressives should work to show their fellow citizens that rebuilding labor is a constitutional necessity.
Race, Class, and the Reach of Public Law
As long as Americans have fought over the meaning of the Constitution, they have fought about race. But these days the scope of questions of race and the Constitution has narrowed. We all can see the constitutional dimension of affirmative action or race and policing. But we have lost sight of an older idea: that racial justice is bound up with political economy.
Reformers during Reconstruction understood that without major changes to the South’s political economy—government provision of education, federal power to enforce voting rights, the redistribution of land from the deposed oligarchs to the freedmen who worked it—generations of servitude and oligarchy would be followed by generations of other forms of hierarchy and dependence, rather than full citizenship and democracy.
They were right. It is not possible to unravel the layers of racial hierarchy and oppression at the heart of U.S. political and economic life without substantially renovating U.S. political economy. Mainstream liberals lost sight of this idea in the mid-twentieth century, but it has remained central to the radical tradition of Black thought that stretches from W.E.B. Du Bois to Pauli Murray and Bayard Rustin, to Martin Luther King, Jr. and Coretta Scott King, and today to the Movement for Black Lives and Reverend William Barber’s Poor People’s Campaign.
Opponents of racial inclusion have also long understood the connection between racial inclusion and political economy. They have not trained their fire exclusively on race-conscious programs like affirmative action. Instead they have consistently chosen lines of constitutional attack that reduce the potential of public law to intervene in our political economy in ways that might promote a broader distribution of economic or political power. They have also pressed the interventions of public law downward, away from the federal government and toward the states. This gives Southern, white political elite more power to block interventions that might benefit Black people. Finally, they have worked to carve out constitutional domains where private law norms of contract and property trump public policy interventions such as antidiscrimination law.
Consider the Affordable Care Act (Obamacare). The most important piece of the legislation was a large expansion of Medicaid to provide health care—and with it, some basic measure of economic security and independence—for Americans with income below 133 percent of the poverty level. Yet in his 2012 majority opinion in NFIB v. Sebelius that kneecapped this part of the act, Chief Justice John Roberts complained that Medicaid “is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage.” In political-economy terms, the policy’s ambition to provide a kind of universal social insurance was indeed as dramatic as Roberts described. Roberts’s decision allowed states to opt out of the Medicaid expansion—to keep the old program in place, creating a large class of working poor people suddenly ineligible for any form of subsidized health insurance—a wild outcome that Congress never imagined.
To reach this surprising result, Roberts had to build new constitutional doctrine. Forcing states to accept a broad and universal program for the poor and the working class, or else lose the narrower and stingier program they had before, was “coercion,” Roberts held, a “gun to the head”—and therefore unconstitutional, according to an account of the relationship between the federal government and the states that elevates the constitutional entitlements of states over those of citizens. Roberts’s opinion caused well over 2 million Americans to become uninsured. But this was no random set of Americans. About nine out of ten of the people deprived of health insurance live within the boundaries of the former Confederacy, and a vastly disproportionate number of them are Black. This fight might seem very distant from the hot-button, constitutional conflicts over race. And yet it is all about race—built on centuries of laws and policies of racial exclusion, the political economy of social insurance has a profound racial dimension.
In a parallel move the following year, in Shelby County v. Holder, Roberts destroyed Section 5 of the Voting Rights Act, which required heightened federal oversight for places with a history of excluding racial minorities from voting. The ruling predictably unleashed a new politics of voter disenfranchisement in the formerly covered jurisdictions. Roberts held that Section 5’s differentiation among states was unconstitutional: it violated a kind of quasi-equal protection principle that applied to states, not people. This “equal sovereignty” principle, as Roberts called it, is not part of the Constitution’s text, any more than the anti-coercion principle that limits federal spending powers in Sebelius. They both sound as if they rest on general ideas about the nature of our federalism. But in fact, even as they loosely evoke antebellum Southern constitutional ideas, these principles were recently custom-built for targeted interventions in constitutional political economy.
In response to the Court’s cynical enabling of a state-level politics of disenfranchisement, Congress must enact new, clear, universal statutory schemes protecting voting rights—and must then be prepared for a protracted fight with this Court. The Medicaid expansion is also a statutory provision with constitutional weight. Congress still can, and should, undo the Court’s constitutional intervention by enacting statutory reforms that take the question of basic health insurance coverage for working-class people of all races out of the hands of state governments that are too wrapped up in the racial politics of anti-redistribution to protect the core economic interests of their own constituents.
Conservative justices are meanwhile carving out a growing statutory and constitutional exception to civil rights laws. They are rapidly building a jurisprudence that reads the Religious Freedom Restoration Act (RFRA) and the First Amendment together to give religious individuals, groups, organizations, and even corporations the power to opt out of a widening range of generally applicable public laws, including antidiscrimination laws. To the extent that these changes are reversable by statute, Congress should reverse them. But a constitutional battle is inevitable.
In a society marked by vast racial inequalities in wealth, education, employment, and capital, there is much more to do. The Movement for Black Lives, along with Reverend Barber’s Poor People’s Campaign, have proposed programs of public investment, job creation, and community economic development that resemble a twenty-first-century Freedom Budget; the movement for reparations for Black Americans has gathered steam, and policies for addressing wealth inequality—such as baby bonds, wealth taxes, and homeownership-related asset-building—are now being framed by prominent lawmakers in expressly racial terms. As these proposals gain political support, they too are certain to draw opposition framed in constitutional terms, inside and outside the courts.
For example, if Congress enacts a wealth tax, it should anticipate a constitutional confrontation. Old ideas about constitutional political economy that limited the reach of the federal taxing power will be dusted off and revived. Congress should anticipate such a confrontation by devising alternative taxes on accumulated wealth—perhaps a more robust estate or inheritance tax—that would kick in immediately if a wealth tax were struck down. Other strategies for taxing concentrated wealth might include reshaping corporate taxes to more effectively tax wealth or rents. The precise contours of the new policy matter less than the politics of enacting it: whether Congress chooses a wealth tax or a less direct route to the same goal, its policy must be accompanied by a strategy for contesting hostile judges’ visions of constitutional political economy.
Antitrust, Ownership, and Democracy
The liberals of the late twentieth century believed that many economic questions were best left to technocratic experts. This was a mistake, and one measure of its magnitude is the extent to which, since the 1970s, the U.S. economy has become increasingly monopolistic, with most sectors dominated by a small number of firms. Entrepreneurial activity is now at an all-time low. Central to this transformation of the economy have been profound changes in antitrust policy, corporate law, tax and monetary policy, lobbying regulations, and many other areas of public law. When liberals learned to think of these important spheres of constitutional political economy as technocratic policy problems, they forgot hard-won lessons about their constitutional stakes.
Those stakes were clear to Americans working in the democracy-of-opportunity tradition throughout the nineteenth and early twentieth centuries: the antimonopoly movement in the Gilded Age, Reconstruction-era Republicans such as Senator John Sherman (namesake of the foundational Sherman Act), and Louis Brandeis in the Progressive Era. From their point of view, the purpose of antitrust was to preserve a democratic republican constitutional order, one in which no single economic actor would be sufficiently powerful to crush competition or direct the power of the state to its own ends.
But in the 1980s, with the help of the Reagan Justice Department, Robert Bork and his allies in what came to be called the Chicago School convinced judges and regulators to discard this entire tradition of antitrust thought. They read into the Sherman Act a vision of economic wellbeing that prioritized the interests of Americans as consumers, not as producers, and certainly not as citizens. Regulators began to excuse monopolies’ predatory behavior toward competitors as long as they kept consumer prices low. The predictable rise of monopoly has been a significant factor in the sharp decrease in the share of economic output that is paid out to workers—and to the meteoric rise in inequality overall.
Today a full-fledged movement is emerging to advocate a return to a more Brandeisian conception of antitrust law. Antitrust is a mechanism—not the only one, but a very important one—to prevent the concentration of too much economic and political power in too few hands. As Zephyr Teachout and Lina Khan have argued, “Excessive corporate size tends to hurt democratic self-government because it enables a handful of actors to purchase disproportionate political power and to subject citizens to systems of private governance that become less accountable the bigger and fewer the corporations.” These neo-Brandeisians are making a claim that Brandeis would have found obvious, but that today requires argument: antitrust law is “constitutional” in nature.
An antitrust law focused on oligarchy would be far less tolerant of mergers, and far more likely to break up monopolies and oligopolies, than the antitrust law of recent decades. It would be considerably less confident in government’s long-run ability to impose behavioral conditions on companies (a common substitute today for blocking mergers or breaking up monopolies). It would curb oligopolistic practices in industries where a few firms have outsized power, as well as practices such as the noncompete agreements that many employers demand from workers by contract. It would curb the power of agribusiness giants to govern and control the actions of the small producers. But this is not simply about making antitrust law more aggressive. An antitrust law in the democracy-of-opportunity tradition would be more permissive than the law is today when it comes to labor: workers or small producers banding together look dramatically different, from an anti-oligarchy perspective, than does a cartel of large firms with great market power.
Any such effort will certainly be challenged in court. Business interests will find ways to claim that antitrust regulators are taking their property, invalidating bargained-for contracts with suppliers or employees, or exceeding constitutional limits on federal power. The constitutional arguments will, as ever, take place both inside and outside the courts, and will cross the membrane separating the two. But reformers today must not lose sight of the core idea: constitutional democracy requires an underlying political economy that is democratic rather than oligarchic.
These ideas could also animate a series of changes to U.S. corporate law. Over time, and especially since the 1980s, a relatively pluralistic and contested stakeholder conception of whose interests corporations must serve has given way to the view that corporations exist exclusively to maximize the returns to their shareholders.
In the early republic, the prevailing view was that corporations were “artificial persons,” chartered to serve public purposes and in need of being supervised and held to account by legislatures and courts. The turn toward an exclusive focus on shareholders was not inevitable. Corporate governance could transform it again. Senator Elizabeth Warren, for example, has proposed legislation that would require the largest corporations to obtain federal, rather than state, charters. The terms of the charters would specify that these large corporations must “consider the interests of all corporate stakeholders—including employees, customers, shareholders, and the communities in which the company operates.”
Regardless of the specifics, any effort to modify U.S. corporate law in this direction will face inevitable constitutional challenge. Some conservative commentators already argue that mandating codetermination would violate the Takings Clause of the Fifth Amendment. Others may argue, for example, that the law violates the First Amendment rights of corporations by giving employees an effective veto over corporate speech.
Both inside and outside the courts, the core argument for codetermination is straightforward: we are choosing to build a regime of corporate governance that is compatible over the long run with democratic government. That was the constitutional argument that Progressives like Brandeis and Herbert Croly put forward. There could be no more “political democracy” in the United States, Brandeis argued, without workers’ “participating in the decisions” of their firms as to “how the business shall be run.” Today this idea seems distant, but the core insight behind it remains as true as ever: we have choices about how to set up the political economy of the United States, and our choices have implications for our constitutional democracy.
In the face of massive inequality and a dangerous trend toward oligarchy, progressives today are beginning to reclaim some elements of the democracy-of-opportunity tradition. This essay has only scratched the surface of a few of the areas where that is happening. This nascent revival of anti-oligarchy thinking is more than the sum of its parts. It is not just policy, but constitutional argument. Past generations of progressives understood this; their conservative opponents did too. Indeed, those conservative opponents never stopped understanding it. In preparation for a series of massive confrontations with a far-right court, it is time for progressives to once again mine this rich vein of U.S. constitutional history and constitutional thought.
Our Constitution is the constitution of a republic, not an oligarchy. It can continue to work that way only if we manage to prevent excessive concentrations of political and economic power. We must disperse political and economic power widely enough to ensure that economic opportunity is broadly shared and racially inclusive. These are not merely constitutionally permissible goals; they are constitutional necessities. Legislators and citizens who hope to reverse the present slide into oligarchy need to recover these arguments and deploy them to help rebuild the democratic foundations of our republic.
Editors’ Note: This essay is adapted from the authors’ new book The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy, published by Harvard University Press.
Joseph Fishkin is Professor of Law at UCLA School of Law and co-author of The Anti-Oligarchy Constitution.
William E. Forbath is Lloyd M. Bentsen Chair in Law at UT Austin School of Law and co-author of The Anti-Oligarchy Constitution.
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