Wealth, Commonwealth, & the Constitution of Opportunity

53 Pages Posted: 21 Jun 2015 Last revised: 15 Mar 2016

See all articles by Joseph Fishkin

Joseph Fishkin

University of Texas at Austin - School of Law

William E. Forbath

University of Texas at Austin - School of Law

Date Written: April 1, 2015

Abstract

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 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. These are two of the central strands of what we call the democracy of opportunity tradition.

Today, when we speak of “equal opportunity” and the Constitution, we usually think of a different idea, one more recognizable today as constitutional law: the idea of inclusion, 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 is the third strand of the democracy of opportunity tradition as we understand it.

This essay, forthcoming in the journal NOMOS, tells the story of the democracy of opportunity tradition and the relations among its three principles--which have been fraught and often tragic. Generation after generation of white male champions of the first two principles of the democracy of opportunity tradition refused to include women and racial others. Later, the great triumphs of the principle of inclusion in the mid-twentieth century — the Civil Rights Revolution, the Great Society — were largely disconnected from the democracy 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 idea of inclusion also signaled the eclipse of the democracy of opportunity tradition of which it had been a part, 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 democracy of opportunity tradition can only succeed with its three strands 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.

Keywords: Equal opportunity, constitutional law, political economy, civil rights, libertarian constitutionalism, police powers, pursuit of happiness, democracy of opportunity, Jacksonian, Jeffersonian, Reconstruction, Populist, Progressive, New Deal, Great Society, Citizens United, NFIB v. Sebelius

Suggested Citation

Fishkin, Joseph and Forbath, William E., Wealth, Commonwealth, & the Constitution of Opportunity (April 1, 2015). NOMOS, Forthcoming; U of Texas Law, Public Law Research Paper No. UTPUB632. Available at SSRN: https://ssrn.com/abstract=2620920

Joseph Fishkin (Contact Author)

University of Texas at Austin - 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 E. Forbath

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

727 East Dean Keeton Street
Austin, TX 78705
United States

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