The Too Supreme Court: Make the Constitution populist again.

AuthorFredrickson, Caroline
PositionON POLITICAL BOOKS - The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy

The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy

by Joseph Fishkin and William E. Forbath

Harvard University Press, 640 pp.

The Supreme Court of late has radically undercut laws protecting voting rights, reproductive health, and limits on religion's role in the public sphere. Less visible to many Americans, it has also substantially weakened our ability to regulate business and check the growth of corporate monopolies, thereby abetting growing extremes of inequality.

For some of us, the answer is to change the judges, limit their tenure, or expand the Court to counteract the pernicious influence of the reactionaries currently serving. I was a member of President Joe Biden's Supreme Court Commission, which studied such reforms and support all of the above. But Americans should also recognize that the problems with the Court go far beyond just who is on it and their terms of service.

In their brilliant new book, The Anti-Oligarchy Constitution, Joseph Fishkin and William E. Forbath challenge the prestige and legitimacy that today's liberals still largely ascribe to the Court as an institution. Liberals learned to revere the Court's role in American society in the mid-2oth century when, starting with Brown v. Board of Education, it began a string of decisions that established constitutional guarantees of fair treatment for Black people, women, and other historically marginalized groups. But along the way, Fishkin and Forbath argue, liberals began embracing two propositions that reformers throughout most of American history never ascribed to and that frustrate progressive change today.

First, we have come to believe that constitutional law is a narrow, technical field properly controlled by elite legal experts. Politicians and activists pitch their causes to the courts and accede to letting Supreme Court justices, as opposed to democratic processes, ultimately decide what is and is not constitutional, whether it's a law mandating vaccination or one limiting marriage to members of the opposite sex.

Second, we adhere to an interpretation of the Constitution under which Congress operates under no constitutional requirement to advance goals, such as equality of opportunity or a broad, prosperous middle class, that are necessary to the functioning of a healthy democratic republic. Today's liberals, for example, argue that the Constitution permits the federal government to mandate that workers and their employers contribute to the Social Security system, and we seek to appoint judges who agree with us. But few imagine that the Constitution requires Congress to pass laws that will protect citizens from poverty in old age, any more than we imagine that funding the Webb telescope is constitutionally compelled.

Yet such attitudes would have baffled reformers in the past, from Jacksonian Democrats and radical abolitionists to prairie populists and New Deal liberals, who all advanced their agendas by appealing to the egalitarian principles and requirements they saw contained in the Constitution. Fishkin and Forbath refer to this history as the lost "democracy of opportunity" tradition of constitutional law. It rested, they show, on the once nearly universal belief among our liberal forebears that preserving a healthy republic, and, by extension, the Constitution itself, depended on a political economy in which the broad mass of citizens enjoyed avenues of upward mobility and protection from domination by oligarchs, monopolists, and other malefactors of great wealth. It's an all-American but now largely forgotten creed, the authors argue, that today's generation needs to--and can--recover. They write that we are now at a propitious moment to build a multiracial coalition that will re-democratize constitutional law and make the Supreme Court once again serve egalitarian ends.

The authors were colleagues for many years at the University of Texas at Austin School of Law, where Forbath continues to teach both law and history...

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