wealth distribution

Review | How to use the Constitution to rein in American oligarchs and save democracy

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The basic facts are familiar: for example, that the 20 wealthiest Americans own more than the bottom half of the population — 152 million people. So are many of the mechanisms by which wealth is parlayed into political power: for example, campaign contributions, lobbying and the proverbial revolving door. A single donor, Peter Thiel, has already invested more than $20 million in pro-Trump Senate and House candidates, many of whom are spreading the lie that Donald Trump won the 2020 election.

So what does the Constitution have to say about economic oligarchy? According to the Supreme Court’s conservative majority, the Constitution not only permits the rise of concentrated economic power but also shields it against democratic countermeasures. Over the past few decades, the court has repeatedly struck down legislation enacted to curb the burgeoning power of wealthy individuals and corporations. Rich Americans now enjoy a court-created constitutional right to spend unlimited money on elections. And in the famous 2010 case Citizens United, the court extended that right to for-profit corporations. Along the way, it held that corporations are “persons” entitled to the same constitutional rights as natural persons. Never mind that they live forever, are bound by law to act in the selfish interest of their shareholders and accumulate wealth without limit. (As of 2017, 69 of the 100 largest economic actors in the world were corporations; only 31 were nations, according to Global Justice Now.) In the strange world of the conservative justices, it is discrimination for Congress to treat such an entity differently from an individual American citizen.

Meanwhile, as Fishkin and Forbath remind us, the court has been busily cutting back the rights of potential challengers to concentrated wealth, for example by approving voter-ID requirements that disproportionately burden poor people, striking down parts of the Voting Rights Act of 1965 and overturning state legislation giving union organizers access to workers.

What is to be done? Today’s liberals are trying to fight back, but — in Fishkin and Forbath’s view — without their strongest weapon. While conservatives wield the Constitution to fortify concentrated economic power, liberals argue that the Constitution is neutral on the issue, effectively giving legislators discretion to choose whatever policies they prefer. But does the Constitution really have nothing to say about economic power?

Enter America’s anti-oligarchy constitution. Would-be economic oligarchs have threatened democracy on a number of occasions, recount Fishkin and Forbath, but each time ordinary Americans rose to the challenge. Unlike today’s liberals, they fought back not by trying to sideline the Constitution but by wielding it as a sword against gross economic inequality. Jacksonian Democrats brought down the Second Bank of the United States on the constitutional ground that it conferred special privileges on the “rich and powerful” at the expense of (White) “farmers, mechanics, and laborers.” Abolitionists attacked slavery not only because it violated the natural rights of enslaved Africans, but also because it raised up an arrogant aristocracy of enslavers who lorded over poor Whites as well as Blacks and leveraged their economic dominance into disproportionate political clout nationwide. Gilded Age populists justified their program of breaking up monopolies, regulating corporations and taxing the rich on the ground that the Constitution charged Congress with affirmative duties to curb concentrated economic power and ensure a wide distribution of wealth. Early-20th-century industrial workers claimed constitutional rights to organize and strike. New Dealers enacted a raft of statutes regulating business, guaranteeing labor rights, and providing a social safety net for the unemployed, sick and elderly on the theory that the Constitution, as the authors write, “not only empowered but obliged Congress to address the problem of gross class inequality and domination.”

Fishkin and Forbath find in this history a more-or-less coherent tradition of egalitarian constitutionalism, the “anti-oligarchy Constitution” of the book’s title. This tradition weaves together three constitutional commitments, the third of which was added over time: first, to prevent or check concentrations of economic power such as the “slave power” and the Gilded Age trusts; second, to distribute economic opportunities widely so as to foster “the mass middle class that is the social and economic base of republican government”; and third, to extend opportunity to all people across lines of race, gender and “other invidious group-based distinctions.” This tradition does not work well unless all three commitments are honored. The Jacksonian Democrats were doomed, for example, because they excluded Black Americans from their republic of farmers and laborers, unleashing the enslavers to build an oligarchy that threatened democracy throughout the nation. Only after the Democratic Party split, with the left joining with the Whigs and others to form the antislavery Republican Party, did the tradition begin to show its real potential.

But is the anti-oligarchy constitution truly constitutional? Today, most Americans think of constitutional law as something that courts wield to strike down legislation. By contrast, the anti-oligarchy constitution is typically enforced through legislation, such as antitrust, campaign finance and workers’ rights laws. Instead of operating primarily as a counter-democratic judicial veto — a “conversation stopper,” as Fishkin and Forbath put it — the anti-oligarchy constitution serves to mobilize democratic political action and protest. The authors argue, however, that this does not make it any less constitutional. The framers expected “We the People” to carry the burden of defending constitutional democracy. Not until popular movements developed and forcefully promoted their own constitutional interpretations did judges come to accept and enforce legislation to break up monopolies, protect workers’ rights, tax the rich, provide a social safety net and otherwise ameliorate economic inequality.

Suppose that Americans were to resurrect the anti-oligarchy tradition — what might a present-day version look like? Most important, it would include all three elements of the tradition. Today’s liberals embrace only the third: equal opportunity for everyone across lines of race, gender and other distinctions. Fishkin and Forbath trace the rise of today’s constitutional conservatism back to the moment when the other two were jettisoned. In the mid-1960s, the Johnson administration chose to ignore the pleas of civil rights leaders such as Martin Luther King Jr. and A. Philip Randolph, who argued that Black progress hinged not only on anti-discrimination but also on federal job creation to open a path out of poverty for workers of all colors. As a result, civil rights politics degenerated into a “bitter game of redistributing a shrinking pie between white and Black workers.” Presidents Richard Nixon and Ronald Reagan seized on the opportunity to divide and conquer, and — with the assent of many Democrats — channeled federal funds away from social programs and toward “tough on crime” policing and prisons. If today’s liberals want to reverse this shift, argue Fishkin and Forbath, they need to fight for such anti-oligarchy staples as antitrust laws, workers’ rights and progressive taxation as constitutional imperatives alongside racial and gender justice.

Despite its scholarly depth, the “Anti-Oligarchy Constitution” is eminently readable, and anybody who cares about the future of American democracy in these perilous times can only hope that it will be widely read and carefully…

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