Capitalism and the Political Economy of the Constitution
An alternative, powerful new account of the Constitution foregrounds democratic politics as a constraint on capital and its forms of domination. Understanding the nature of this domination is essential for overcoming the oligarchical dangers the book bemoans.
Joseph Fishkin and William E. Forbath begin their sweeping history of our nation’s “constitutional political economy” with the recognition that “[o]ur constitutional system is headed for a historic confrontation.”1 Income and wealth inequality have reached historic proportions. But legal and legislative responses to this crisis confront decades of neoliberal orthodoxy and conservative judicial reaction. Fishkin and Forbath hope to counter this neoliberal offensive by construing inequality as a problem of domination. What this review hopes to show is that understanding precisely the nature of this domination is essential for overcoming the oligarchical dangers that Fishkin and Forbath bemoan.
The Anti-Oligarchy Constitution’s key argument is that we currently lack the constitutional language required to address inequality and its many social ills. Our prevailing horizon of thinking about the Constitution is determined by what the oracular Supreme Court proclaims it will limit or permit. This is an individualizing conception of the Constitution that is centered on a narrow interpretation of negative liberty and “assume[s] that the only real constitutional claims are the ones enforceable in court.”2
Through a historical retelling, Fishkin and Forbath advance an alternative vision of the Constitution. This is a structural, political, and “positive” vision, one focused on what the Constitution demands from the people and their representatives in Congress as much as what the Supreme Court says it forbids. In this view, the Constitution is not — or is not just — an “outside constraint” on democratic politics. Rather, the Constitution forms the substance of a “democratic constitutional politics.” The center of this substantive constitutional vision is anti-oligarchical: a constitution of “We the People” that aims to “promote the general Welfare” and guarantee a “Republican Form of Government.”3 The Constitution, in other words, was meant to secure freedom for “the People” from the arbitrary authority of the powerful, who include not just public officials but more particularly powerful economic actors. Political freedom requires certain economic conditions, and, in that sense, politics and economics cannot really be separated. Fishkin and Forbath thus insist on the need to return to political economy in our constitutional discourse.
Fishkin and Forbath frequently use another term to refer to the tradition of democratic constitutional politics that they uncover throughout US history. This is the “democracy-of-opportunity” tradition, a phrase coined by Franklin D. Roosevelt.4 There are three strands to this concept. The first is its most explicitly anti-oligarchical: the need to stand guard against the concentration of economic and political power that threatens the Constitution’s democratic foundation. The second is about how economic opportunities are structured and made available, which must nourish a middle class both deep and wide enough to provide a social and economic base for (small-r) republican government. The third strand builds a principle of inclusion into this anti-oligarchical vision: democracy of opportunity must be available for all people without regard to race, gender, or other invidious, group-based distinctions. As Fishkin and Forbath observe, historically, these strands can be and have been pursued separately, but the tradition is at its strongest and most compelling when all three are joined together. The authors show that these political-economic principles have been repeatedly invoked throughout the course of US history. They argue that liberals and the Left need to return to talking about economic inequality in these political and constitutional terms.
Fishkin and Forbath build on themes that have become prevalent within the legal and political theory literature. One theme is popular constitutionalism, which insists that the people and their representatives have as much authority to interpret and apply the Constitution as the Supreme Court does. Another theme is the idea of freedom as nondomination — a “republican” (again, small-r) theory of freedom, as distinct from freedom as noninterference. Fishkin and Forbath expand on these themes by illustrating their relevance to political and constitutional debates in US history, explaining why they are necessary to our current politics of inequality and democratic deficit.
One notable achievement of the book is the way that Fishkin and Forbath, both through artful storytelling and by clarifying the political stakes of seemingly technical, “economic” disputes, make otherwise dry and forgotten constitutional struggles resonate with the spirit of the Constitutional Convention. A prime (but not unique) example of this is their retelling of the Gold Clause Cases. These Supreme Court battles were some of Roosevelt’s first constitutional victories, coming even before the well-known “switch in time that saved nine.” The Gold Clause Cases arose from the Roosevelt administration’s efforts to get the United States off the gold standard and thereby thwart the Great Depression’s deflationary spiral. One obstacle to these efforts were “gold clauses,” present in the vast majority of long-term financial contracts, which sought to fortify a creditor against dollar devaluation. Conservatives attacked these efforts by pointing to the Constitution’s purported protections for property and liberty of contract, respectively, in the Fifth Amendment’s Takings Clause and the Fifth and Fourteenth Amendments’ due process clauses. But the Roosevelt administration responded with a spirited constitutional argument of its own, highlighting the power of Congress’s Article I “to coin money and regulate the value thereof.” These contractual gold clauses were therefore not protected by constitutional rights to property or contract but were in fact derogations of congressional sovereignty. Private, wealthy parties had appropriated for themselves public powers. Attorney general Homer Cummings, who argued the case personally on the government’s behalf, asserted that recognizing these gold clauses would be protecting a “privileged class.” “I feel the walls of this courtroom expand,” the attorney general’s oral argument concluded. “I see, waiting upon this decision, the hopes, the fears, and the welfare of millions of our fellow citizens.”5 A dispute that would today be put in dry, technical economics jargon is shown, in Fishkin and Forbath’s retelling, to have been about fundamental principles of our democratic republic.
From a Marxist perspective, Fishkin and Forbath’s theme of freedom as nondomination deserves particular attention. Freedom as nondomination, to its credit, gives us a way of thinking about the relationship between liberty and equality that disarms and undermines various conservative, liberty-based objections to traditionally conceived egalitarian claims. Securing the economic conditions of nondomination cannot be a violation of liberty if it is itself an essential component of liberty. Traditional, taken-for-granted, and — I would add — liberal conceptions of liberty and equality have been a continuing stumbling block for Marxists. For example, in the 1980s and 1990s, the analytical Marxists sought to fundamentally rebuild Karl Marx’s thought on more “rigorous” foundations.6 This included an attempt to interrogate and refine Marx’s theory of exploitation. From the beginning, however, they interpreted Marx’s normative concern as a “distributional” one. Consequently, subsuming Marx’s critique of capitalism within this normative framework paved the way to analytical Marxism’s ultimate undoing. Most of the analytical Marxists eventually abandoned Marx’s project because, once interpreted through a distributional lens, nothing in Marx’s concepts could compete with “state-of-the-art” theories of equality and distribution coming from liberal quarters. Most analytical Marxists ended up embracing a more-or-less Rawlsian version of liberal-egalitarian politics.
This is not just a problem of intellectual history. Liberal, taken-for-granted concepts of liberty and equality continue to have a divisive hold over Marxist thought and practice. Marxists sometimes talk as if class, or the “economic,” is more fundamental or more real than race. For example, “Marxist theory is careful to distinguish between material benefits and the psychology, or consciousness, regarding race. Whereas material (i.e., class) interests are fixed and objective, consciousness is fluid and subjective.”7 In fact, these purported distinctions risk reproducing a division that is actually located within the liberal tradition itself, between a narrow, negative conception of freedom and the fair distribution of “consumption shares.” Freedom as nondomination can obviate this misguided division. This is exemplified in the way that Fishkin and Forbath provide for inclusion in their democracy-of-opportunity tradition. Group-based, invidious discrimination is neither just a violation of a right of equality nor merely a failure to appreciate “difference.” Nor is opposition to it necessarily superficial, “woke” posturing. Discrimination is itself a violation of freedom, the foreclosing of opportunities and chances for life plans that are denied to certain groups because of invidious, group-based justifications. A return to a conception of liberty as nondomination can help avoid this trap and save democratic socialist politics from reverting to a capitalist-affirming liberalism.
But what sort of liberty we are talking about? Answering this question is essential for determining the kind of freedom the Constitution requires — and whether any interpretation of the Constitution can meet the challenge of our oligarchical politics. In current republican thinking, liberty is freedom from domination, which is the capacity for one person to arbitrarily interfere with another person, and not just freedom from interference. But there is good reason to question how far republican theories of freedom can take us. After all, defenders of a neoliberal political economy (like Friedrich Hayek) also use republican language to defend their anti-redistributive claims.8 The anti-oligarchical thinkers that Fishkin and Forbath cite throughout US history are so varied and diverse that it is impossible to pin any particular conception of nondomination on them. But in our current political and intellectual climate, including thinkers such as Philip Pettit, Frank Lovett, and Elizabeth Anderson, republican theories of liberty have an individualist, personal cast.
For example, Anderson begins her Tanner Lectures on employer domination in ringing and aspirational language.9 She ends, however, in underwhelming prescriptive recommendations. This may have something to do with the vision of freedom on offer, which does not appreciate the more impersonal nature of domination under capitalism. Moreover, contemporary attempts to proscribe what republican liberty requires often misconstrue to what extent the current legal regime (if not the political economic regime, as Fishkin and Forbath properly and constantly remind us) actually satisfies the republican theory of freedom. This is a fact appreciated more by legal scholars than political philosophers.10 Recent republican theories of freedom do not abjure domination, only an irrational, arbitrary, and personal expression of it.
For Marx, capitalist domination does not reside exclusively within the workplace, nor is its full purview captured through its exercise by individual capitalists — although capitalism does indeed breed such “republican” forms of domination. According to Marx, domination also resides, impersonally, within the practice of exchange itself. Even here, however, we need to be careful. Marx does not condemn the market as such, as some have recently suggested.11 Early in Capital, Marx draws a distinction between selling in order to buy and buying in order to sell.12 Selling in order to buy has a rational logic and purpose. Captured in the circuit C–M–C (commodities transformed into money and back into commodities), selling in order to buy involves the sale of one’s commodities (including the wage-earner’s capacity to labor) in order to acquire money, to then in turn purchase goods or services for consumption and enjoyment. This circuit is very different than buying in order to sell, although completely imbricated with it. Depicted in the circuit M–C–M, buying in order to sell involves starting with money and using it to acquire commodities, labor power, and raw materials, in order to produce and sell different commodities — for more money.
Whereas selling in order to buy terminates with a “rational” purpose, buying in order to sell has an “irrational” logic to it. Buying in order to sell would be pointless if all the capitalist got from the process was the same amount of money they threw into exchange — that is, if M=M. Buying in order to sell only makes sense if more money is gained at the end of the process than what was thrown into it, only if M–C–M´, where M<M´. Buying in order to sell therefore does have a purpose — the ceaseless accumulation of money — but it is an irrational, arbitrary one. It requires the endless accumulation of money for its own sake. It is an end without an end, a purpose that can never be satisfied or resolved. Production is undertaken not to feed the hungry, house the desolate, or free the captive; rather, production is undertaken to yield more production, without regard to who is consuming its products or how.13 A host of contemporary ills follow from such an activity: the constant attempt to get more labor out of workers, the disemploying and stratifying (read: racialized and gendered) effects of organizational and technological change among businesses, and the remorseless degradation of the environment.
Understanding the nature of capitalist domination in this way has implications for how we must confront it. To put it in Fishkin and Forbath’s “three strands” terminology, we should question whether merely guarding against oligarchy or building a broader and more inclusive middle class is sufficient to secure a robust notion of freedom.14 Like current republican notions of domination, what we call the capital relation exercises an arbitrary authority over all members of society. Apart from that similarity, however, an “impersonal” form of domination presents a challenge, because it makes it difficult to identify exactly who — which individuals — are doing the dominating. It is above all perplexing for republican theorists who start from precisely this presumption, namely that domination requires an identifiable dominator, embodied in flesh and blood. But such is the nature of an impersonal form of domination. Marx says that “the capitalist is just as enslaved by the relationships of capitalism as is his opposite pole, the worker.”15 Nevertheless, he quickly adds, “albeit in a quite different manner.” Capitalists are bound by the golden handcuffs of capital. This form of domination produces a set of actors, “elites,” that act on a socially and historically given set of social relations and institutions — the capital relation — that furnish a distinctive set of motivations and interests. Our social, political, and economic life is indeed dominated by a set of powerful actors: the Bezoses, the Zuckerbergs, the Koch brothers, and the other robber barons of our new Gilded Age. But we need to see these oligarchs not just as facts of life, or a quantum that can be expanded or contracted by our constitutional political economy, but as consequence of a more fundamental social relation.
To further clarify these limitations, the concern is that current proposals for ameliorating the worst excesses of capitalism will be setting up future generations for failure, much as the New Deal did for our present generation. That does not mean that improvements within capitalism cannot be made. Nor does it even augur in favor of a stilted distinction between “reform” and “revolution.” It does mean that any improvements made within capitalism are contingent on the continued accumulation of private profit. In this respect, public goods are always subordinated to private, arbitrary ends.16 This is not to discount the sacrifices, individual and collective, that were made, or the very real and significant gains the New Deal created for many Americans. Nevertheless, even putting together all three strands of the democracy-of-opportunity tradition — (1) anti-oligarchy, (2) a broad middle class, and (3) inclusivity — may not be enough. Suppose a new social movement succeeds in restraining oligarchy, expanding the middle class, and doing so in an inclusive way. This will undoubtedly make a monumental difference for many people. But what happens when, after another three decades go by, all of these “good things” are attributed not to the struggles of the previous generation but to the normal and proper workings of capitalism? What happens when the next big crisis arrives and, rather than attributing it to capitalism, it is blamed on labor unions, minimum wages, generous social benefits, and an intrusive administrative state? Unless the problem of production for profit is addressed, I do not see what prevents a repeat of the interminable oscillation between market freedom and material distribution that has played itself out within liberalism and capitalism since their dawning.17 One may respond that these smaller steps are necessary to first create the possibility for these more fundamental steps. That, too, is simply insufficient. If we are not convinced that these elemental changes are necessary, then the “incrementalist” response is not made in good faith.
These warnings about the nature of capitalism and political change are addressed more to the present-day political movements that are likely to seize on their narrative than they are to Fishkin and Forbath’s impressive historical exploration of US constitutional political economy. What Fishkin and Forbath contribute to contemporary progressive thought is a demand that we speak about the economy in political language, not as a technical or apolitical sphere separate from the rest of society. Their book is an admirable demonstration that previous generations of thinkers, activists, and politicians have spoken about the economy constitutionally in just these terms. The range and diversity of these interlocuters is great. Let us hope that the discourse we have inherited from them is capacious enough to confront the grim future that capitalism has bequeathed us.