Republicanism and the Constitution of Opportunity

Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution, Forthcoming

Texas Law Review, Vol. 94, No. 7, 2016

Yale Law School, Public Law Research Paper No. 572

20 Pages Posted: 24 May 2016  

Jack M. Balkin

Yale University - Law School

Date Written: May 22, 2016

Abstract

This essay explains the constitutional basis of Joseph Fishkin and William Forbath's recent call for an "Anti-Oligarchy Constitution" and a "Constitution of Opportunity." Fishkin and Forbath correctly argue that one cannot separate democracy and political freedom from a nation's political economy. They contend that public officials have a political duty to promote an inclusive and broad-based middle class, because economic independence is crucial to preserve democratic self-government.

These claims are modern-day versions of a very old idea in the American constitutional tradition. This is the requirement of republican government, a basic principle of American constitutionalism that not only undergirds several different parts of the constitutional text but also has deep roots in the ideals of the founding generation.

I describe several key features of republicanism and how a commitment to a republican political economy flows from them. Republican ideals like equal citizenship and opposition to oligarchy and aristocracy remain important and relevant in the twenty-first century, but inevitably they must take new forms. Because of what I have called "ideological drift," opponents of oligarchy and aristocracy in one generation are often co-opted into becoming the defenders of new forms in later years. And because of ideological drift, older versions of anti-oligarchy rhetoric can be captured by new aristocracies and oligarchies to defend and entrench their interests.

As time goes on, corruption finds ever-new ways of entering the political system, weakening the institutions and practices that secure civic equality and representative democracy. The causes of corruption are not simply human frailty and fallenness. They also arise from social, demographic, and technological changes. These alter the meanings and practical effects of older social arrangements, offering ever-new opportunities for attaining and entrenching power. Hence republicanism, if it is to have a coherent and enduring set of political commitments, cannot be identified with a fixed set of social and economic arrangements. Instead, every generation must reconsider the terms of the nation's political economy, and remain vigilant to deal with new threats to self-rule.

Keywords: Republicanism, Aristocracy, Oligarchy, Constitution, Political Economy, Ideological Drift

JEL Classification: K10

Suggested Citation

Balkin, Jack M., Republicanism and the Constitution of Opportunity (May 22, 2016). Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution, Forthcoming; Texas Law Review, Vol. 94, No. 7, 2016; Yale Law School, Public Law Research Paper No. 572. Available at SSRN: https://ssrn.com/abstract=2783064

Jack M. Balkin (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

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