The Political Economy of "Constitutional Political Economy"

Jeremy K. Kessler, Columbia Law School


Joseph Fishkin and William 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.

By placing the discourse of political economy back at the center of constitutional debate, Fishkin and Forbath have – by any fair measure – done more than enough. Yet scholarly innovators tend to find the ranks of their critics swelled by those who have benefited most from their labor. This Essay is no exception to the oedipal rule. It argues that Fishkin and Forbath could go further still in integrating political economy and constitutional history. At times, their detailed analysis of the discourse of “constitutional political economy” comes at the expense of a more fully materialist account of the political-economic conditions and effects of that discourse. Such a discursive emphasis, in turn, risks an overly optimistic assessment of the past virtues and present utility of “the constitution of opportunity,” the egalitarian dialect of constitutional political economy that Fishkin and Forbath commend to legal liberals today