DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

Writing this book, we followed the trails of some important pioneers. One is Bruce Ackerman.⁹ Ackerman opened the door to projects such as ours that explore the dynamics of American popular constitutionalism in theory and historical practice with his pathbreaking We the People series.¹⁰ Ackerman’s initial insight in these books is that our constitutional order has been repeatedly and dramatically altered by the American people in ways that do not comport with Article V of the Constitution (which provides the means of formal amendments). He convincingly demonstrates that the founding itself, and the massive constitutional changes of moments such as Reconstruction and the New Deal, have in common the fact that they do not follow the rules of formal amendment. Instead, through politics, Americans have changed our Constitution. Ackerman recognized that one way to understand this history, both positively and normatively, is what he called “monism”: the idea that there is no such thing as a constitutional constraint, and that really, political majorities should and perhaps do have “plenary power” to enact their policy program. Ackerman rejects monism, as do we. But, of course, he also rejects (indeed, rather demolishes) the simplest modern form of dualism, which imagines that law is separate from politics and that the only way for the people to alter our Constitution is through Article V. Instead, Ackerman imagines a more modern and more political sort of dualism. Americans, he argues, engage in both “ordinary politics” and “higher lawmaking.” Higher lawmaking, in his view, is a multistep process in which national majorities, under conditions of heightened political engagement and deliberation, repeatedly win popular support for their plan to move our higher law in the direction they advocate. Thus, for Ackerman, distinguishing ordinary politics from periods of higher lawmaking is a central intellectual preoccupation.

For us, it is not. We view ordinary politics and constitutional politics as different but essentially continuous with one another—there is no bright line between them. In our view, it is possible to engage in ordinary politics in a way that does not expressly or implicitly invoke constitutional ideas and arguments; or it is possible to invoke such constitutional ideas and arguments to varying degrees; or it is possible to engage in a highly self-conscious form of constitutional politics that emphasizes constitutional ideas and arguments. Sometimes these forms of politics change our constitutional order after something that looks like a moment of higher lawmaking in Ackerman’s sense, and sometimes they change our constitutional order without ever even convincing a durable majority of Americans, simply through a gradual accretion of judicial appointments leading to court decisions that alter the trajectory of the law.¹¹

Ackerman’s interest in distinguishing higher from ordinary lawmaking is based on the premise that we need to know which is which to know which constitutional changes are legitimate and which are usurpations. Our reading of American historical practice is that such questions are rarely entirely settled. Even when they seem firmly settled, there is nearly always room to fight about the reach or meaning of that settlement years or decades or centuries later.¹² Surprisingly often, Americans continue to fight about the first-order question of whether the constitutional changes of the past are settled constitutional bedrock or serious errors to be revisited and corrected. Thus, we view constitutional politics as an ongoing struggle in which a central part of the subject matter of the struggle is how to view the legitimacy and force of past changes to the constitutional order: the recent conservative counterrevolution; the civil rights revolution of the 1960s; the New Deal; Reconstruction itself.¹³

The Anti-Oligarchy Constitution traces a tradition of constitutional argument that operated for the most part through politics—as did its various opponents, from pro-slavery constitutionalism to pre–New Deal anti-redistributive Lochnerism to the modern forms of originalism-inflected neo-Lochnerism that are central to the popular-constitutional agitation on the contemporary American right. Sometimes the constitutional dimensions of the political arguments were more explicit, sometimes less. Sometimes, it was right-wing activism by the Supreme Court and other courts that prompted progressive political actors to take up a more explicitly constitutional set of arguments by way of response. That pattern is one we find encouraging, in a way. The present right-wing Supreme Court is doing great damage to the republic, but there is a potential silver lining if the Court inspires modern progressives to recover a sense of how to do constitutional politics.

The careful reader will quickly discern that from the perspective of avoiding the collapse of dualism into monism, we face a considerably harder road than Ackerman. Where he has a temporal distinction between ordinary politics and higher lawmaking, we see both happening all the time. Where he draws a bright-line rule that lends legitimacy to some forms of constitutional politics and denies it to others, we see the question of legitimacy as forever contested, recursively, through constitutional politics itself. This is part of why Michelman perceptively questions exactly what our version of dualism looks like or whether we are dualists at all.

In our view, political actors are bound by the higher law of the Constitution because Americans collectively believe that to be the case. For over two centuries, Americans have engaged in a practice of making claims on the Constitution and arguing that those claims have a force that goes beyond and cannot be immediately overridden by the political will of a present-day majority. Not only lawyers but also politicians and voters think this way.

This practice of constitutional politics has real value. It creates a kind of common ground—often hotly contested ground, but still common ground—on which Americans can stake out rival visions of our fundamental political commitments as we attempt to persuade one another.¹⁴ Movements of the disenfranchised and dispossessed—members of an imagined, inclusive national political community they hoped to bring into being—have made great use of this practice.¹⁵ The same goes for generations of radical left, as well as mainstream progressive, reformers in the democracy-of-opportunity tradition, who championed dramatic changes in the inherited constitutional scheme.¹⁶ Many were radical democrats, yet they were not “democratic monists.” They attacked plutocratic institutions like the Senate and the Court and called for structural reform to empower democratic majorities. But they did so in the name of the higher-law constitutional principles whose adventures we have chronicled: anti-oligarchy, wide-open opportunities for decent livelihoods and material well-being, and (sometimes, too rarely) racial inclusion. They were interpreting and making claims on the Constitution, and they said so—even as they tried to change the inherited text, and sometimes succeeded.

In sum, a form of dualism is baked into American politics itself.¹⁷ Political actors make constitutional arguments not simply as a way of putting a rhetorical exclamation point on something they think very important, but instead because we share an understanding that part of our project of collective self-government is to be bound by certain commitments, whose meanings are therefore worth fighting about. Unusual among constitutions, the U.S. Constitution is a root signifier of national identity.¹⁸ When we fight about constitutional principles and their meaning, we fight about who we are as a nation and what kind of national community the Constitution promises to promote and redeem.¹⁹

With the Constitution playing this role in the national story, it is not surprising that people with rival views about the direction of the nation’s political economy and much else have worked to ground their views in arguments about the Constitution. This includes the advocates of the anti-redistributive, “laissez-faire” constitutional politics that crystallized into Lochnerism in the 1900s. That constitutional politics helped give shape to the modern conservative account of an America founded on rugged individualism and limited government, private property, guns, and godliness.

We see the power of this account to inspire a broad swath of citizens, lawmakers, and judges to act militantly on its behalf today. It not only resonates with conservative values but helps define them as a form of constitutional patriotism. Missing from our current constitutional politics is a comparably robust progressive account of the kind of community the Constitution promises to secure for all. Past generations of progressives, though, offered an account of national community grounded in the democracy-of-opportunity tradition. They argued that the Constitution promises—and obliges us to build—a nation with a democratic rather than oligarchic political economy: one in which all Americans enjoy a decent education, material security, and a genuine opportunity not only to earn a decent livelihood but to do something with value in their own eyes and to engage in the affairs of their community and the larger society. This account shows how the Constitution can undergird, rather than impede, core commitments to a broad distribution of power and opportunity that progressives see as essential to a democratic society.

Taking the measure of this forgotten account, Professor Michelman observes, quite accurately, that the “historical course of American Constitution-centered, political economy-focused debate,” as we ourselves recount it, is not a history of “the democracy-of-opportunity side” prevailing over time, until it becomes “hegemonic.”²⁰ Not at all. The democracy-of-opportunity side lost at least as many past battles as it won, and it should be clear by now that we offer no assurances about the future. No certainty of a “tidal resurgence.”²¹ We do, however, spy some contrasts between past and present worth noting.

Not since the Reconstruction era’s Republicans has the U.S. seen a major party bring together all three strands of the democracy-of-opportunity tradition as it mounted major political-economic reform. The Democratic Party during the New Deal confronted the nation’s mass economic pain and rising class inequality by bringing together the anti-oligarchy principle and the imperative to build a middle class open and broad enough to accommodate the nation’s industrial workers—its white workers. That Democratic coalition included the champions of Jim Crow, a reactionary core that killed efforts to re-enfranchise the Black South and weave racial inclusion into the New Deal’s democracy of opportunity.

Today’s crisis of mass economic pain and mounting class inequality is the first one in our history since Reconstruction in which there is a major party that might once again bring all three strands together at the center of its program: the Democratic Party, no longer anchored in the reactionary precincts of the white South. Whether or not it will do so is history not yet written. Nor is it yet possible to see clearly how the inevitable conflict will play out between a future Democratic majority and a hostile, and highly politically engaged, Supreme Court.

In the two centuries and more of constitutional history canvassed in The Anti-Oligarchy Constitution, courts are usually on the reactionary or conservative side. This is a story we very much want our more progressive readers to understand. A century ago, the federal courts in particular were the locus of opposition to Progressive efforts to preserve the economic foundations of democracy in an age of rapacious accumulation of power by organized wealth. Their jurisprudence elevated property and contract rights to condemn unions, redistribution, and popular efforts to preserve the economic foundations of republican government. Today the courts, as ever the least democratic branch, are once again developing novel doctrines in a thinly veiled results-oriented jurisprudence aimed at vindicating the political aims of the Republican Party—including rebuilding a more deeply oligarchic political economy. This is not a random pattern of events. We argue that there are reasons, not only in practice but also in theory, why courts are likely, more often than not, to be the branch most opposed to the democracy-of-opportunity tradition. A reader who glanced through those chapters of the book might well be left with the expectation that its authors are likely done with the courts—that we are likely ready to argue for an end to constitutional judicial review. Many thoughtful people have taken that position, a century ago and today.²²

Michelman perceptively notes that we are not among them. Once again, this raises important questions. How do we understand the role of the courts? Do we view them as having a potential role in implementing an anti-oligarchic constitutional vision? In the book we talk about judicial interventions in constitutional political economy in terms of a sword (striking down legislation), a shield (upholding it against challenge), and a guide (interpreting it). This way of mapping the terrain, which we developed in response to an earlier exchange with Michelman, is useful for a few reasons; one of them is that it helps illustrate why, even though our main general prescription for courts is that they should largely get out of the way of democratic legislation, their role is more complex than that. There is more for them to do.

The democracy-of-opportunity tradition we chronicle has always emphasized the primacy of legislation and administration in building a democratic political economy. This work involves much that courts cannot initiate: initial endowments, social insurance, public investment in job opportunities, and much else. But courts often need to interpret and implement legislation and administrative action of all these kinds. Courts can and should consider questions of constitutional political economy when they do. It is not simply a matter of upholding legislation against collateral constitutional challenges (the shield); it is also a matter of enforcing and implementing and interpreting the statutes and regulations in a way that gives force to their constitutionally important aims (the guide).

But what about the sword? Today some are once again calling for an end to constitutional judicial review—or at least an end to the Supreme Court’s power to overturn federal statutes. As a matter of democratic principle, they argue, the voters and their representatives should have the final word in national lawmaking, not the courts. We see the future of judicial power in a more contingent and experimental light. Enacting a progressive agenda in the democracy-of-opportunity tradition would involve much legislation that clashes with the political-economic outlook animating today’s Court. If and when progressives succeed, and conservatives attack this agenda with constitutional arguments in court, we hope progressives will respond with a resurgence of popular and legislative constitutionalism. Party leaders, candidates, and lawmakers should argue that reforms to labor law, election law, social insurance, and a wide variety of other fields are constitutional necessities. Courts must back off to give such popular constitutionalism room to breathe. If the present Supreme Court will not, Congress and the President should force the issue, turning to a wide array of statutory tools at hand, including what Sam Moyn nicely calls the “fine-tuning of jurisdiction,” taking away from the Court as much power as the occasion demands.²³ Nonetheless, this may surprise some readers, but we see room for a distant future court, a court very differently constituted than the present court, to hold, with the dissenters in cases such as Dandridge or Rodriguez, that the Constitution cannot tolerate laws that consign some citizens to a socioeconomic position so subordinate that they are excluded from any real opportunity to participate in our economic life.²⁴ State courts, nearly all of which have heard cases in this vein regarding school finance, have shown that it is possible for courts to use the sword in a tempered way to require and impel legislative responses, sometimes spurring reluctant legislatures to take up their constitutional duties in such spheres.

Moreover, we do not aspire to take the Constitution entirely away from the courts because courts at their best can do invaluable work of several kinds: the special work of protecting the most despised and politically untouchable minorities, such as prisoners; the Elysian work of protecting the political process from corruption and distortion; and at the forefront of our minds these days, the liberal work of blocking and checking the authoritarian and antidemocratic forces in our polity, doing what they can to help prevent the collapse of liberal democracy into some form of illiberal autocracy.

Sometimes, courts are contingently the best positioned to do each of these sorts of work, in part because of the unique forms of persuasive power that the courts have acquired over our long national romance with constitutional judicial review. When a court says something is required by the Constitution, a lot of people will tend to believe it. That can be quite useful. Indeed, the modern neo-Lochnerian right has made enormous use of it, bringing arguments from the courts into politics and from politics back into court, secure in the knowledge that the same words spoken by a Justice of the Supreme Court carry additional persuasive weight regarding what the Constitution really means.

Michelman reads us as endorsing a view that some constitutional principles are—as Larry Sager’s important work in this field would put it—underenforced.²⁵ That is, some constitutional principles are enforced not in court but through politics. We agree. Some who share this view with us might aspire to build a principled taxonomy of distinct areas where courts should lean in or back off. (“[I]n a word, ‘^{footnote 4}.’”²⁶) We, however, see a great deal of contingency and overlap in the possible future institutional roles.

Courts, like legislatures and executives, are engaged in constitutional politics. That is very often why courts contain the Justices they do; it is often why courts rule as they do; and it is why so many arguments migrate from politics into courts and from courts into politics as they frequently do. Courts, legislatures, and executives have different but overlapping forms of power and authority in constitutional politics; their roles have shifted throughout our history and will undoubtedly shift again.

Our view is that the federal courts need to take a giant step back from their present posture: a form of judicial supremacy so extreme that it is dangerously close to judicial exclusivity over constitutional interpretation. We hope for this backing off, but we do not expect it in the near term. Instead, we expect pitched conflict in the coming years between the elected branches and the courts over the direction of the nation’s political economy.²⁷ A progressive Congress would have a variety of tools at its disposal, including well-tuned jurisdiction-stripping, to force the courts out of the way if the situation demands it.

And yet in the end, we are situated differently from our Progressive forebears, who were (rightly) profoundly skeptical of the courts of their time, and of the entire institution of judicial review, to the point that some of them called for its outright abolition. Those Progressives were operating in an environment without the criminal procedure revolution, without structural reform injunctions by courts, and most fundamentally without the entire liberal-legalist legacy of important rights claims structured to be enforced by lawyers in court.

This court-centered, rights-based way of thinking has had a variety of profoundly bad consequences. It has helped erase from popular and legal memory the claims of constitutional duty and obligation that are at the heart of the democracy-of-opportunity tradition. It has narrowed, to the point of very nearly effacing, core constitutional claims about labor rights and social provision. But even now—even in their deeply compromised, flawed, self-aggrandizing, and politicized state—courts still can do too much good for us to give up on them entirely.

What is needed, in our estimation, is a shift in the balance of power that would teach the courts, and the American people, that courts do not have a monopoly over constitutional argument. After that, as part of a dialogue or, more realistically, an ongoing contest over constitutional meaning and interpretive authority, courts should (and certainly will) continue to play a role in constitutional politics.

We would judge such interventions on the strength of the substantive constitutional arguments more than the shifting boundaries of judicial and legislative roles. We are confident that reviving the democracy-of-opportunity tradition involves a vastly expanded role for legislative and popular constitutionalism. Courts must back off—and Congress and the White House must curb them if they refuse. But beyond that, there is a great deal of future history not yet written in which the Court might yet play a secondary but important, even perhaps complementary, role in cementing a future democracy of opportunity for all Americans.

Finally, let us briefly turn to the set of questions Michelman poses toward the end of his essay regarding the political effects of the choices progressive politicians might make to speak in a constitutional register about what is now conceptualized as social and economic policy. Is it fair to assume, and do we assume, Michelman asks, that engaging in more explicit constitution talk about things like labor and social insurance, antitrust and banking reform, on the campaign trail or in state houses or on the Senate floor, is going to redound to the net benefit of progressive politicians?

Here, we are unequivocal: we definitely do not know. We are not political consultants. That question is an interesting question, but it is not our question. We argue in the book that today’s progressives should, over time, aim to rebuild something of the rich world of arguments and precedents outside of court that were central to their forebears’ constitutional politics. But we urge this without any certainty about the short-run effect.

Over the long run, however, we do have a view about what this would do. It would gradually reshape the terrain of constitutional politics. Making such constitutional arguments in the political arena would, over time, rebuild a more decentralized world of constitutional debate in which a variety of political leaders and other institutional actors, many operating in normal politics, fight out the Constitution’s meaning. In the long run this world would be more hospitable than the present one to the core arguments of the anti-oligarchy tradition, whose revival is important to the long-run survival of the United States as a democratic republic. Those arguments speak often in terms of legislative constitutional duty rather than judicially enforceable constitutional prohibition—a forgotten vocabulary that is essential to the constitutional case for the kind of major redistribution of wealth and power at the heart of much of the progressive agenda.

The same is not true for the constitutional case against such reforms. The neo-Lochnerian constitutional outlook now afoot in the courts and public debate can work quite comfortably within the confines of our current, court-centered constitutional thinking, in which the Constitution mainly operates to empower courts to strike laws down.

Conservative politicians and the conservative legal movement have done much over the past several generations to bring certain forms of constitutional political-economic argument into mass politics. They have convinced many ordinary voters to adopt some views (or at the very least, slogans) regarding constitutional interpretation, and they have convinced the same voters to care quite a lot about judicial appointments. What was originally an outsider challenge to the Warren Court through politics has gradually become a formalized channel through which our ruling coalition of Supreme Court Justices and other judges must demonstrate their right-wing political commitments in order to be considered for appointment. Liberals, by contrast, have retained a quaint and ultimately disastrous attachment to the supposed autonomy of constitutional law from politics.²⁸ It is time for this attachment to give way, and for progressives today to make their constitutional arguments openly in politics, as their forebears did.

Enacting a program of major redistribution, worker empowerment, and innovative administrative state building will require building a big, durable multiracial majority on the national scene. It will require a Democratic Party that can hold fast to a robust politics of race and sex equality while also embracing a politics of fighting economic and political oligarchy. That is an enormous political challenge, regardless of whether or how progressive politicians speak about the Constitution.

Any party that hopes to take on that challenge today faces a range of obstacles. One in particular is pertinent here: the profound skepticism and disillusionment about the capacity of government to improve anyone’s lives that conservatives have successfully inculcated in Americans over the past several generations. They have done this in part by diminishing state capacity and deliberately making programs of economic regulation and social provision inaccessible or ineffective.²⁹ They have also done it in part through legal and constitutional narrative. They have sold Americans a story in which American individualism and limited government is our constitutional heritage, constitutive of us as a nation. On this view, key elements of the progressive program are foreign imports that our constitutional heritage condemns: modern administrative state building, promoting broad class-based unionism, major new social insurance programs, public banking and credit in the service of social and economic democracy, and more. If the popular constitutional narrative condemning such policies is unanswered, it can only deepen skepticism and despair about the progressive program.

The Anti-Oligarchy Constitution shows that every one of these ideas was born in the United States³⁰—and that all of them were understood by broad swaths of Americans, often by large majorities of Americans and their leaders, to be exactly what the Constitution demanded of government. That claim was how generations of reform-minded politicians, movements, and opinion-makers met the constitutional claims of their foes. You can’t beat a constitutional narrative without a counternarrative. Here that requires recovering a fuller account of our constitutional experience, one that prevailing popular-constitutional memory, cultivated by the right, has erased.

So, while we are not in the business of telling politicians what will win them elections tomorrow or next year, we are convinced that in the long run, this new (or newly recovered) constitutional narrative about the objects of government is essential. It is a narrative grounded in a form of constitutional patriotism that contrasts sharply with the ethno-nationalist appeals now resurgent in our polity. It is a narrative about what we can, and must, do collectively together under our Constitution to preserve the economic foundations of our republic.

We think a move toward a self-conscious constitutional politics on the progressive left will not only counter but also complement the constitutional politics already central to the libertarian right (and some other parts of the right). Mostly that is for the reasons we have just sketched. But we also believe that making arguments about constitutional political economy as part of politics—as Americans have done for most of our history, and as conservative Americans continue to do today—is valuable “for its own sake.”

Constitutional democracy is a social practice. We can try to outsource the constitutional part of the practice to courts and lawyers. Liberals tried to do that for over half a century. But in the end, we don’t think it can work. Judges and lawyers have important roles to play in any constitutional order. But if the people and their elected leaders abandon the practice of constitutional argument—and abandon their sense of constitutional duty and obligation, particularly with respect to political economy—the danger is too great that the constitutional system will be captured by some elite faction with its own views, unresponsive to the people.

We think there is one big thing that the libertarian right gets right. Constitutional politics must address political economy. We first began to think along these lines long ago, engaging with the work of a constitutional thinker who is also an actor in the present book’s story line: Frank Michelman.³¹

Among many things we have learned from Michelman is this. A respect-worthy constitutional order must address what it takes to make each person a consenting member—a charter member—of the political community. Like Michelman in his decades-long engagement with John Rawls, we conclude that this means our practices of constitutional argument and debate cannot be indifferent to the social and economic conditions of democratic lawmaking.³²

The libertarian right has its views about the constitutional essentials of a political economy that ensures such conditions. We have ours. We think that a political economy that measures up to the principles of the democracy-of-opportunity tradition is essential for renovating and preserving constitutional democracy in this country. We read Michelman as concurring: it would be better for constitutional democracy “for its own sake” if progressives attempt—with no guarantee of success—to persuade fellow Americans, on the plane of constitutional politics and lawmaking, that this is so.