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The Anti-Oligarchy Constitution

29 Pages Posted: 2 May 2014 Last revised: 3 May 2014

Joseph Fishkin

University of Texas School of Law

William E. Forbath

University of Texas at Austin - School of Law

Date Written: 2014

Abstract

America has awakened to the threat of oligarchy. While inequality has been growing for decades, the Great Recession has made clear its social and political consequences: a narrowing of economic opportunity, a shrinking middle class, and an increasingly entrenched wealthy elite. There remains broad agreement that it is important to avoid oligarchy and build a robust middle class. But we have lost sight of the idea that these are constitutional principles.

These principles are rooted in a tradition we have forgotten – one that this Article argues we ought to reclaim. Throughout the nineteenth and early twentieth centuries, generations of reformers responded to moments of mounting class inequality and crises in the nation’s opportunity structure with constitutional claims about equal opportunity. The gist of these arguments was that we cannot keep our constitutional democracy – our republican form of government – without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone. Extreme class inequality and oligarchic concentrations of power pose distinct constitutional problems, both in the economic sphere itself and because economic and political power are intertwined; a “moneyed aristocracy” or “economic royalists” may threaten the Constitution’s democratic foundations.

This Article introduces the characteristic forms of these arguments about constitutional political economy and begins to tell the story of anti-oligarchy as a constitutional principle. It offers a series of snapshots in time, beginning with the distinctive political economy of the Jacksonian Democrats and their vision of equal protection. We then move forward to Populist constitutionalism, the Progressives, and the New Deal. The Constitution meant different things to these movements in their respective moments, but all understood the Constitution as including some form of commitment to a political economy in which power and opportunity were dispersed among the people rather than concentrated in the hands of a few. We conclude with a brief discussion of how this form of constitutional argument was lost, and what might be at stake in recovering it.

Suggested Citation

Fishkin, Joseph and Forbath, William E., The Anti-Oligarchy Constitution (2014). Boston University Law Review, Vol. 94, No. 671, 2014; U of Texas Law, Public Law Research Paper No. 561. Available at SSRN: https://ssrn.com/abstract=2431255

Joseph Fishkin

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

HOME PAGE: http://www.utexas.edu/law/faculty/profile.php?id=jrf84

William Forbath (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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