Since the early 1990s, constitutional history has experienced a renaissance. This revival had many causes, but three stand out: the Rehnquist Court's attack on formerly sacrosanct features of the "New Deal agenda"; Reagan-Era reassessments of American political development by political scientists, historians, and historical sociologists; and the frustration of constitutional scholars with the inability of legal process theory or political philosophy to produce "authoritative constitutional principles." Spurred by legal crisis and this mix of disciplinary innovation and stagnation, law professors began to tell new stories about our constitutional heritage. They focused on the sources and significance of the New Deal's "constitutional revolution," while also re-examining the constitutionalism of the Founding and Reconstruction in light of New Deal transformations.
Given the centrality of the New Deal to this project, constitutional historians seemed to be heading toward a fundamental reconsideration of the relationship between constitutional law and political economy. That is, after all, what New Deal constitutional conflict was all about: the extent to which the Constitution allowed a national political movement to alter the country's economic life in fundamental and lasting ways. And yet, the new generation of constitutional historians generally avoided political economy as such. To be sure, their histories carefully reconstructed early twentieth-century debates about the constitutional authority of the state and federal governments to displace common law economic regulation. But the focus remained on the purely legal logics and purely political events that led the federal judiciary to get out of the business of adjudicating the constitutional merits of various schemes of economic regulation. The economic reasons that political and judicial actors might have had for transforming constitutional democracy received little attention.
This exclusion of economic reason from constitutional analysis is symptomatic of what Professors Joseph Fishkin and William Forbath call the "Great Forgetting." From the Founding through the New Deal, Fishkin and Forbath demonstrate, the discourse of "constitutional political economy" was a fundamental feature of American constitutionalism. It was only in the wake of the epochal New Deal synthesis – judicial deference to political regulation of the economy and judicial guardianship of civil liberty and equality – that constitutional political economy became something of a dead language. Prior to that time, constitutional actors across the ideological spectrum spoke in terms of constitutional political economy, believing that "economics and politics [we]re inextricably linked, and [that] a republican constitution require[d] a republican political economy to sustain it, and vice versa."
By recovering this language, Fishkin and Forbath's book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath's new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires – "requires" in the double sense of "demands" and "depends upon." This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly "one-sided." First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society's remaining achievements, trumpeting a constitutional political economy in which private property free of overweening public management is the pillar of constitutional democracy. Confronted by these dire conditions, legal liberals have forgotten how to fight back, rendered mute by the New Deal synthesis itself, which ironically and erroneously implied that political economy was no longer a matter of constitutional concern. Hoping to even the odds, Fishkin and Forbath offer liberals a grammar of egalitarian constitutional political economy – "the constitution of opportunity" – that was once spoken fluently and effectively by those Americans who argued that the Constitution prohibited oligarchic concentrations of wealth and mandated the political and judicial construction of a broad, inclusive middle class.
Constitutional Law | Law | Law and Economics | Law and Politics | Legal History | Public Law and Legal Theory
Jeremy K. Kessler,
The Political Economy of "Constitutional Political Economy",
Tex. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1090