Rethinking Law

By Amy Kapczynski, et al

A conservative Supreme Court is poised to roll back many progressive achievements, from affirmative action to abortion. In the forum that opens Rethinking Law, legal scholars Joseph Fishkin and William E. Forbath argue that the left must stop thinking of the law as separate from politics. Instead, we must recover a lost progressive vision, a “democracy of opportunity,” that sees the public—not the judiciary—as the ultimate arbiter of what the Constitution means.

Offering a nuanced picture of the relationship between law and politics, other essays in Rethinking Law further explore the meaning of law beyond the Constitution and the courts. They look to social movements, including civil rights and LGBTQ rights, for lessons about social transformation. While contributors debate the limits of law in a vastly unequal society, they agree that it remains an essential resource for building a more just world.

• Language: English
• Publisher: Boston Review
• Release date: Jul 5, 2022
• ISBN: 9781946511737

Book preview

RETHINKING LAW

made possible by a generous grant from

T

he

W

illiam and

F

lora

H

ewlett

F

oundation

Editors-in-Chief Deborah Chasman & Joshua Cohen

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Senior Editor Matt Lord

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Rethinking Law is Boston Review Forum 22 (47.2)

Make Progressive Politics Constitutional Again is adapted from The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy by Joseph Fishkin and William E. Forbath, published by Harvard University Press. Copyright © 2022 by the President and Fellows of Harvard College. Used by permission. All rights reserved.

The Imperial Roots of the Democracy of Opportunity by Aziz Rana is adapted from the Law and Political Economy blog.

What Movements Do to Law by Amna A. Akbar, Sameer Ashar, & Jocelyn Simonson is adapted from the article Movement Law, published in Stanford Law Review 73.4 (April 2021).

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CONTENTS

EDITORS’ NOTE

FORUM

MAKE PROGRESSIVE POLITICS CONSTITUTIONAL AGAIN

FORUM RESPONSES

UP FROM ORIGINALISM

THE IMPERIAL ROOTS OF THE DEMOCRACY OF OPPORTUNITY

NOT ONLY LOOKING BACKWARD

BEYOND NEOCLASSICAL ANTITRUST

THE HARD QUESTIONS

FINAL RESPONSE

ESSAYS

WHAT MOVEMENTS DO TO LAW

HOW LAW MADE NEOLIBERALISM

LEGISLATING REPRODUCTIVE JUSTICE

WHAT MAKES LAWS UNJUST?

QUEER LIBERATION, IN AND OUT OF THE LAW

RETHINKING HUMAN RIGHTS

LAW FOR BLACK RADICAL LIBERATION

CONTRIBUTORS

EDITORS’ NOTE

Deborah Chasman & Joshua Cohen

a conservative supreme court

is poised to roll back many progressive achievements of the late twentieth century, from affirmative action to abortion. Income and wealth inequality are a continuing—and growing—disgrace. Structural barriers to democracy impede popular accountability, from the Senate to the Electoral College, and the orderly transfer of power is itself under threat. All the while, the U.S. criminal justice system—with its powerful racial inflection—remains the most punitive such system on our burning planet.

Legal scholars Joseph Fishkin and William E. Forbath argue that a progressive response to these challenges demands a decisive break from postwar liberal legalism. After the New Deal, they argue, liberals sought to cordon off both law and the economy from democratic politics. For a brief period, judicial supremacy—with the Supreme Court settling the meaning of the Constitution—looked like a good bet, yielding greater civic inclusion and deference for progressive legislation. In the end, though, it was a poisoned pawn, as judges won unprecedented power to constrain legislative initiatives and threaten the affirmative state. The alternative, Fishkin and Forbath contend, is to recover a lost vision of progressive politics—what they call the democracy-of-opportunity tradition. That tradition marries a substantive, political-economic vision—a racially inclusive, anti-oligarchic Constitution—with a democratic conception of the public, not the judiciary, as the ultimate arbiter of constitutional meaning. Respondents explore the prospects of this ambitious proposal and wonder whether it is ambitious enough to address our most serious challenges.

Other essays in this special issue—designed with the help and guidance of Boston Review contributing editor Amy Kapczynski— further reflect on the meaning of law beyond the Constitution and the courts. Some look to social movements, from queer liberation to reproductive and racial justice, for lessons about social transformation and the limits of legal demands. Others examine contested legal concepts, including human rights and Martin Luther King, Jr.'s conception of unjust laws. Together they offer a nuanced picture of the relationship between law and politics. As Paul Gowder notes in his contribution, our moment of legal precarity might best be served by what critical race theorist Mari Matsuda once called multiple consciousness. In a deeply unequal society, the law can certainly impede progress, but it also remains an essential resource in building a more just world.

FORUM

MAKE PROGRESSIVE POLITICS CONSTITUTIONAL AGAIN

Joseph Fishkin & William E. Forbath

two years

of a devastating pandemic have exposed deep cracks in the U.S. political and economic order. After decades of economic policies that hollowed out the middle class, shocking numbers of Americans lacked the economic means to withstand COVID-19's disruptive force. But the pandemic also demonstrated that economic policy is not set in stone. For a brief moment, before collapsing back into familiar patterns of polarization and obstruction, the federal government stepped in with the money to rescue vast numbers of Americans from economic ruin.

The Democrats are, for now, about two Senate votes shy of enacting a series of major reforms that would address climate change, voting rights, and the outsize political and economic power of the rich. But even assuming that Democrats manage to enact such measures—overcoming our system's many antidemocratic veto points, such as the Senate itself—the toughest challenge is still to come. The looming risk is that all such reforms may be unraveled by the Supreme Court. The Court has made the Constitution a weapon for selectively striking down legislation the justices disfavor. They are highly likely to wield it against laws that aim to repair economic or political inequality.

The Court can do this with near-total impunity because many Americans accept the idea that the Supreme Court is the only institution with any role in saying what the Constitution means. Congress and other elected leaders, at best, can fill in the few blanks that the courts have left open. Rather than contesting the Court's power to make highly questionable judgments about the meaning of the Constitution, most liberals today defend the Court's authority. Their top complaint about the current Court is that it doesn't have sufficient respect for its own precedents, which today's majority is fast overturning as it lurches further right.

Mounting an effective challenge to our conservative juristocracy requires understanding how we got here. It is not just that the right out-organized the left. On the contrary, liberals have contributed to conservatives’ success by imagining constitutional law as an autonomous domain, separate from politics. Liberals have likewise imagined that most questions about how to regulate the economy are separate from politics, best left to technocrats. These two ideas have different backstories, but both were at the center of a mainstream liberal consensus that emerged after World War II. For postwar liberals, constitutional law was best left to the lawyers, economic questions to the economists. These two key moves sought to depoliticize vast domains that had previously been central to progressive politics. Together they tend to limit the role of the people and the representatives they elect.

Conservatives never accepted either of these moves. They have a substantive vision of a political and economic order they believe the Constitution requires, and that vision translates easily into arguments in court—arguments against redistribution, regulation, and democratic power. Inspired by their forebears a century ago in the Lochner era, when conservative courts routinely struck down progressive reforms for violating protections for property and contract, today's conservatives have methodically installed movement judges who reliably advance those goals. And they are succeeding. Witness the litigation over the Affordable Care Act (ACA). Although the law narrowly survived, conservatives outside and inside the courts embraced novel arguments that Congress had transgressed constitutional limits on its powers. Liberals disagreed, offering arguments that the ACA was permissible. But they never made the argument their progressive forebears might have made: that something like the ACA is required to meet our constitutional obligations.

In response to the right's decisive politicization of the courts, some liberals and progressives have proposed judicial reforms aimed at restoring an imagined past of judicial nonpartisanship. But that golden age is a myth. Constitutional confrontations over rival visions of our political and economic future are inevitable; courts are always engaged in such contests. The problem is not that the judiciary has a vision of constitutional political economy. The problem is that that vision has strayed much too far from the views of the elected branches and the people.

Bringing the Court back in line will be a challenge. Fortunately we have precedents to draw from. For the first two-thirds of U.S. history, generations of reformers—from Jacksonian Democrats to Reconstruction Republicans to New Deal Democrats—made arguments in what we call the democracy-of-opportunity tradition. These reformers argued that the Constitution not only permitted but compelled legislatures to protect U.S. democracy in the face of oligarchy and (later) racial exclusion. The Constitution, in this tradition, not only permits, but compels, the elected branches to ensure the broad distribution of power and opportunity that are essential to a democratic society.

Reformers made these arguments in the teeth of hostile courts determined to impose court-made doctrines to shield elites from democratic encroachment. But the elected branches could and often did challenge the Court's interpretation of the Constitution, especially about the trajectory of the nation's political economy—the political decisions that shape the distribution of wealth and power through our laws and institutions.

This vision is worth retrieving today. Some progressives will think this is a misguided, even dangerous, proposal. If constitutional law is the domain of the courts, and courts are dominated by conservatives, why should we risk re-constitutionalizing our claims about political economy? Why, in short, should progressives make our politics constitutional again? The fear—that any talk of the Constitution cedes power to courts—is understandable.

But the opposite is true. Not speaking about the Constitution in politics cedes power to courts. By making claims on the Constitution, we show that all branches of government, and the people themselves, have the authority and duty to debate what our constitutional principles require.

There is no future for the liberal idea (never adopted by conservatives) of a sharp separation between constitutional arguments in court and political arguments outside the courts. The border between the two is too thin and porous. Arguments move across it both ways, with profound effects. Declarations by courts shape the terms of public debate and move the horizons of political possibility; arguments in politics shape arguments in court. We are all responsible for participating in debates about the meaning of the Constitution, and we ought to recognize the power of this shared commitment. In the long run, it can help us build a more egalitarian and democratic society than some of our elites, on and off the Court, would accept.

What might such efforts look like? Today's conservatives