Fishkin and Forbath on the Constitution of Opportunity

Joseph Fishkin and William E. Forbath, University of Texas at Austin School of Law, have posted Wealth, Commonwealth, & the Constitution of Opportunity: A Story of Two Traditions, which is forthcoming in NOMOS:

We live in a time of profound and justified anxiety about economic opportunity. The number of Americans facing poverty is growing, opportunities for middle-class livelihoods are shrinking, and economic clout is becoming concentrated at the top to a degree that recalls the last Gilded Age. For reformers throughout the nineteenth and early twentieth centuries, economic circumstances like these posed not just an economic, social, or political problem but a constitutional one. A society with a “moneyed aristocracy” or a “ruling class,” these reformers understood, was an oligarchy, not a republic. This understanding was rooted in a constitutional discourse we have largely forgotten — one that this essay suggests we ought to reclaim. From the beginning of the Republic through roughly the New Deal, Americans vividly understood that the guarantees of the Constitution are intertwined with the structure of our economic life. This understanding was the foundation of a powerful constitutional discourse that today, with important but limited exceptions, lies dormant: a discourse of constitutional political economy. A powerful tradition of arguments, from the founding era through the nineteenth and early twentieth centuries, sounded in this tradition: arguments that we we cannot keep our constitutional democracy — our “republican form of government” — without (a) constitutional restraints against oligarchy, and (b) a political economy that maintains a broad middle class, accessible to everyone. We call this the democracy of opportunity tradition.

Today, when we speak of “equal opportunity” and the Constitution, we usually think of a different tradition, more recognizable today as constitutional law: the inclusionary tradition, which has its roots in Reconstruction and animates arguments that the Constitution requires us to include, on equal terms, those who have previously been excluded from important opportunities on grounds such as race and sex. This essay, forthcoming in the journal NOMOS, tells the story of these two traditions and the relations between them, which have been fraught and often tragic. Generation after generation of white male champions of the older democracy of opportunity tradition refused to include women and racial others. Later, the great triumphs of the inclusionary tradition in the mid-twentieth century — the Civil Rights Revolution, the Great Society — were largely disconnected from the constitution of opportunity tradition. This was for a different reason: The Civil Rights Revolution and Great Society unfolded in an unprecedented moment of broadly shared prosperity; what remained to be done, it seemed, was to open the nation’s abundant middle-class opportunities to black America, women and other excluded “minorities.” Thus, the moment that marked the rebirth and greatest triumphs of the inclusionary tradition also signaled the eclipse of the democracy of opportunity tradition, and more generally of any constitutionalism not centered on the judiciary — an eclipse whose consequences have been far-reaching.

In this essay and in a larger book project, we aim to recover the idea that inequality and unequal opportunity, oligarchy and aristocracy, have a constitutional dimension. In the end, we argue that the inclusionary tradition and the democracy of opportunity tradition can only succeed together and intertwined. Here, we begin to sketch how a revived democracy of opportunity tradition, and a revived discourse of constitutional political economy, might matter both inside and outside the courts.