Fishkin and Forbath’s (F&F’s) manuscript is a project of recovery. It portrays the present as a time marked by a “Great Forgetting” of a tradition of constitutional political economy. F&F name what has been forgotten the “democracy of opportunity” tradition. Recovering it would mean again treating the following three principles as linked elements at the core of our Constitution: (1) an anti-oligarchy principle that works to prevent wealth from producing grossly unequal political power; (2) a commitment to a broad middle class with secure, respected work; and (3) a principle of inclusion that opens participation in both citizenship and the economic middle class to all, particularly members of historically excluded groups.
This kind of recovery project is also a certain form of imaginative literature. In the spirit of Langston Hughes’s poetic call to “let America be America again” – meaning, let America become the country it has never been but always should have been – it invites us to envision and identify with a counterfactual country, also called the United States, with the same constitutional text as ours and much of the same history. What kind of laws, what kind of public culture, and what kind of judges would that country have? This kind of counterfactual narration, like various genres of intentional fiction (sci-fi, utopian literature, and counterfactual history), helps readers get our own world, the actual world, into better focus by deliberately changing a few key aspects of it and asking what else might follow. In F&F’s hands, it is also a hortatory and reforming project, urging us readers, much as Hughes did, to put our shoulders to the wheel of constitutional change.
Constitutional Law | Jurisprudence | Labor and Employment Law | Law | Law and Economics | Law and Politics | Law and Society | Legal History
Jedediah S. Purdy,
Overcoming the Great Forgetting: A Comment on Fishkin and Forbath,
Texas L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2878