Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?

31 Pages Posted: 14 Jul 2016 Last revised: 25 Jul 2016

K. Sabeel Rahman

Brooklyn Law School

Date Written: July 14, 2016

Abstract

What is the role of the constitution and constitutionalism in the current debate over economic inequality? Drawing on Progressive Era political thought, especially reinterpreting the dawn of the legal realist movement, this paper offers a moral framework for conceptualizing today’s inequality crisis, and a theory of social change that links law, constitutionalism, public policy, and social movements.

First, the paper excavates a substantive moral critique of economic power at the heart of Progressive Era thought, centered around the problem of domination — unchecked economic and political power — and the moral priority of democracy — the means by which such power is contested and checked. This rich political-economic critique of industrial capitalism offers a normative framework for imagining a more democratic and egalitarian response to the inequality crisis of today.

Second, the paper suggests that this Progressive Era-inspired account of democratic political economy also implies a particular theory of social change that is worth recovering in today’s debates about the role of law and the role of the courts in the inequality crisis. The moral focus on domination and democracy orients us towards reform strategies that look to the ways in which law structures economic and political processes to allocate power, capabilities, and opportunities. These underlying structures emerge as critical sites of contestation, reform, and change. Thus, we might shift the terms of economic power through legislative and regulatory moves like antitrust and public utility; and we may magnify the democratic political power of citizens by creating alternative vehicles for voice and participation at the national or local level.

Third, the paper suggests that this vision of social change in turn implies a very different reading of the role of constitutionalism and constitutional theory in political-economic debates. The constitutionalism evidenced by Progressive Era and legal realist theorists of domination and democracy is not the high Constitutionalism of Supreme Court doctrine, precedent, or textual interpretation. Rather, it is the “small-c” constitutionalism of social movements, of public philosophy, and of the laws and regulations that literally constitute our politics and our economics. Constitutional political economy, on this view, is the concern not just of courts but of we the people. Its primary tools for change are not just judicial decisions, but legislative, regulatory, and other forms of ordinary governance.

Finally, the paper concludes by considering the implications of this domination- and social-movement-focused recasting of legal realism for ongoing debates about the relationship between legal inquiry and social change, particularly in today’s post-financial crisis era.

Keywords: Constitutionalism, political economy, inequality, domination, democracy, Progressive Era

Suggested Citation

Rahman, K. Sabeel, Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism? (July 14, 2016). Texas Law Review, Vol. 94, 2016. Available at SSRN: https://ssrn.com/abstract=2809618

K. Sabeel Rahman (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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