David Lebow on Joseph Fishkin and William E. Forbath *The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy*

The Law and Political Economy movement (LPE) assigns significant responsibility for the roiling crises of the contemporary United States to two interrelated developments characterizing prevailing modes of legal thought and practice.[1] Certain legal subfields have been reoriented to depoliticize the economy by supplanting considerations of power and inequality by economic efficiency as their singular value. Meanwhile, constitutional law and its adjuncts have been delimited to exclude attention to economic power and structural inequality, while also being colonized by market rationalities that erode participatory democracy. Progressive reformers call for repoliticizing the economy, recognizing economic power and distribution as constitutional matters, and retrieving democracy from “antipolitics.”

Joseph Fishkin and William Forbath’s opus, The Anti-Oligarchy Constitution, is the most significant and wide-ranging LPE intervention into the scholarship of constitutional law and history to date. It makes three distinctive contributions. First, their uniquely wide-ranging history recovers a “democracy-of-opportunity tradition” with a pedigree as old as the Republic. Constitutional democracy depends on (I) a political economy that sustains a middle class that can accommodate everyone; (II) a principle of inclusion across lines like race and sex; and (III) restraints against oligarchical concentrations of economic and political power. These three threads have been woven into different periods of the American constitutional tradition, but they have never all been successfully knitted together at once. The book’s radical exhortation to “fulfill the promise” (387) of the Constitution finds its special persuasiveness in its conservative lawyerliness: the prescribed reforms are not alien novelties, but recoveries of ingrained commitments.

They show how, until very recently, all constitutional debate agreed that the guarantees of the Constitution were inextricable from economic and political structures. The book’s second major contribution is to highlight how, in this shared culture of “constitutional political economy,” the democracy-of-opportunity tradition has stood out for asserting affirmative constitutional duties on the government to organize a political economy that is middle-class, inclusive, and anti-oligarchic. This is incompatible with today’s hegemonic but baleful equations of the Constitution with the Court and constitutional law with the negative of judicial review. Taking the Constitution away from the Court does not merely mean withdrawing constitutional limits on lawmaking. It means acknowledging constitutional duties to legislate. Because republican government depends on an egalitarian, inclusive, and unconcentrated economy, the economy is a matter of public as well as private concern (348). Dissolving the false “autonomy of economics from politics” requires dissolving the false “autonomy of constitutional law from politics” (420).

Their third major contribution distinguishes them from many in the LPE movement who closely associate the economics/politics diremption with neoliberalism. Fishkin and Forbath see that the critical juncture came decades earlier at the heyday of New Deal liberalism. Erasing the imprinted view that the economy was intrinsically political, neo-Keynesian economists propounded economics as an apolitical, technocratic sphere with expert solutions. Traditional “questions about the distribution of social and political power” (365) were set aside as the goal shifted from restructuring the political economy to stabilizing and growing it through the “Olympian manipulation of macroeconomic levers” (26). Most provocatively, their eponym for the fateful turn toward dematerializing constitutional law is not Roberts, Rehnquist, or even Burger, but Earl Warren (347). Self-congratulatory legal liberals were convinced that they oversaw an essentially sound and righteous market society of individual rights, legal processes, and a safely privatized welfare system. Concerned foremost about Communism, their “antitotalitarianism” played out as skepticism toward mass democracy, elevation of legal elites, and apotheosis of the Court (356). Cold War constitutional law disclaimed constitutional political economy and reduced constitutional guarantees to inclusion through court-enforced civil rights. Fishkin and Forbath intimate that a fair share of the blame for our predicament lies with Boomer lawyers, still lionizing the Warren Court from their endowed chairs even after all these years.

Fishkin and Forbath articulate the most persuasive Progressive program available within the constitutional tradition of the United States. But despite the book’s sweeping breadth as a synthetic history of constitutional arguments about political economy, it says surprisingly little about political economy itself. Their program nevertheless turns on—as does, I think, the entire LPE project—the viability of a certain political economic framework. The vital but unsubstantiated conjecture of The Anti-Oligarchy Constitution is that the sovereign people can use the state to exercise political rule over the economy without the politicization of economic regulation necessarily subjecting politics and the state to the class rule of capital. My three comments, each corresponding to one thread of the democracy-of-opportunity tradition, all probe this basic supposition.

I

Above all, the book has a peculiarly equivocal relation to Keynesianism. As villain, the neo-Keynesian economic establishment was culpable for the “Great Forgetting” that pivoted from constitutional political economy to economics as a depoliticized domain managed by experts. It wrote the grammar that marginalized arguments about class and distribution in favor of the macroeconomics of growth and inflation. But Keynesianism is also the book’s secret hero. Keynes himself thought that capitalism tends to destroy itself by endogenously creating unemployment and intolerable poverty amid plenty.[2] Economic intervention by the state—foremost, deficit spending to sustain demand, investment, and employment—can save capitalism from itself. To achieve a “universally accessible middle-class standard of living” in modern market society through reforming the political economy (364), Keynesianism must be right about the state’s capacities, independent of its embrace of undemocratic rule by expert.

The paramount historical question for Fishkin and Forbath is therefore: Why did Keynesianism fail? Their answer is that it failed by losing touch with the mass mobilization, class struggle, and regulatory choices that made the mid-century “Great Compression” possible (372). But this seems to get things backwards. Wasn’t the chief failure of neo-Keynesian political economy that it ceased to effectively contain class struggle through deficit-financed growth? It was stagflation that delegitimated neo-Keynesian pretensions to an expert science capable of managing the economy (369). Depoliticization surely hollowed out labor’s bargaining power, making it easier for capital to win the distributional conflict unleashed by stagflation. But it is hard to see how it could be argued that Keynesian depoliticization of the market economy itself somehow caused stagflation.

The right question to ask about the political failure of the Keynesian paradigm is instead whether it was only temporarily derailed in the 1970s by historically specific events and choices, offering a momentary political opportunity seized by its rivals and left open by its own abandonment of mass politics, or whether fundamental economic developments had rendered it permanently infeasible as a means for the state to save capitalism from itself. But for Johnson’s simultaneous spending on Vietnam and the Great Society or OPEC’s oil shock, could Keynesianism have continued to work? Or perhaps if Keynes had gotten his way at Bretton Woods and imbalance had not been baked into global trade by the dollar standard? Or did strong unions only temporarily push wages above what that time’s productivity level could bear? The basic alternative structural explanation that needs to be rebutted is that the profit-diminishing overaccumulation of goods and capital on the global market, thanks most proximately to tougher competition with the resurgent industries of Germany and Japan, obsoleted expansionary Keynesian policies. On this view, state-subvened expansion of domestic production to keep up wages and employment was only reconcilable with profitability sufficient to incentivize private investment and pacify capital during an exceptional moment in the history of capitalism—the trente glorieuses of postwar Fordism.

Fishkin and Forbath’s assertion that the economy is not natural or self-regulating but constituted by “political choices” (29) is indisputably right. It simply does not exist without a pervasive regulatory architecture structuring fields including banking, antitrust, labor, finance, property, tort, and contract. But their book persistently seems to elide “economics is irreducibly political” with “economics is reducible to politics” (483). Dispensing with the myth that economics is an apolitical science does not prove that there are no powers subsisting in the market economy that enforce consequential constraints on political possibilities. It is missing the point to criticize the “economics profession, which had collectively decided in the 1970s that substantial unemployment was necessary to fight inflation” for erroneously alleging that their claims were apolitical science. It is true that “an economic problem like unemployment is ‘at base a political problem’” (407). Dressing up the Phillips Curve as some timeless economic truth (with or without the rational expectations proviso) is indeed vulgar pseudo-science. But the real question remains unaddressed: why shouldn’t we think there was a fundamental tension between inflation and deficit-funded middle-class employment in the capitalism of the 1970s? Or, indeed, of the capitalism of the 2020s?

Nor is it evident than the responsiveness of economic regulation to political struggle that Fishkin and Forbath advocate makes full employment policies easier rather than harder to achieve. Kalecki also vigorously challenged the Keynesian faith in a state run by experts insulated from the masses, and for the same reasons—class matters, and the economy is suffused by ideological and political struggle.[3] But he took this to indicate precisely that there are insuperable political barriers to full employment under capitalism. Employment through public deficit spending disempowers capital by undermining “‘the sack’” as a “disciplinary measure.” But so long as investment decisions remain preponderantly in private hands, economic wellbeing will depend on the “state of confidence” among capitalists. Should government spending overly threaten capital’s power over labor, it will lose its support, and legitimation crisis will manifest as an “investment strike” precipitating economic crisis. The state’s need to placate capital, Kalecki thought, gives it indirect political control, foreclosing full employment.

The pivotal crisis of the 1970s could be plausibly characterized along these lines as capital ceasing to invest out of fears that the inflationary “revolution of rising expectations” would further erode its class power, force expected profits below the tolerable minimum, and drive down the road to a regulated, planned economy verging on socialism.[4] The ensuing Volcker shock—the big bang of neoliberalism—was also unquestionably a political choice to deploy astronomical interest rates to impose money scarcity suppressing inflation. Monetarism was certainly no apolitical science, even if the pretense that it was helped the tough medicine go down (376). Once again, though, unmasking the Volcker Shock as intensely political does not by itself disprove that something like it was necessary to refloat capitalism. From a Kaleckian perspective, it signified the capitalist state in crisis restoring its own legitimacy by decimating the domestic workforce and catalyzing financialization to renew capital’s conjoined class power and profitability.

Fishkin and Forbath’s prescription for politicizing economic regulation to achieve universal access to the middle class depends on the soundness of a theory of political economy in which meaningful full employment is compatible with the containment of inflation and in which the political power afforded to capital by its control over investment can be overcome. It must be possible to have a sovereign state with control over the economy that is not a class state controlled in the last instance by capital.

II

The second strand of the democracy-of-opportunity tradition is to win extension of equal racial and sexual inclusion in an economy of opportunity through democratic political mobilization—and not through the “expert” fiat of unresponsive administrative and judicial elites. This is consonant with the signature prescription of the whole LPE movement for overcoming the specious divisions entrenched by neoliberalism: “democratize the economy and Constitution.” Neoliberals believe markets cannot fail; they can only be failed. Faltering prosperity can never be due to markets themselves but only to political interference. But what if the LPE movement inverts without overcoming the credo of their antagonist, cleaving to its own faith that democratized capitalism cannot fail, but can only be failed? In a genuinely democratic capitalism, they seem to assume, the form of popular authority over the economy and the Constitution would coincide with the content of egalitarian and inclusive policies—that the right reforms could activate a virtuous circle between democratizing politicization and democracy-reinforcing outcomes.

For Keynes himself, the reason that unemployment was intrinsic to, but fixable within capitalism was inextricable from his view that economic regulation had to be conducted by undemocratic administrative experts. The full productive capacity of the economy could go systematically unused—Say’s Law that supply always creates its own demand was false—because the fact of an uncertain future actuates human psychological dispositions toward fear and mistrust. This leads people to favor hoarding money over risky investment, bringing about the very economic distresses they are anxious about. As opposed to the fantastical rational calculators that compose the social theory underpinning laissez-faire, when real human beings each privately do what they think best, the aggregate results are systematically irrational and anti-social. Because the problem of unemployment was rooted in psychology rather than the structural dynamics of capitalism itself, capitalism could be saved by the administrative state. But because underinvestment and underemployment were concomitants to endemic collective irrationality, the state had to be operated by undemocratic scientific experts insulated from the political ramifications of mass psychology. Keynes worried further that if administrative experts did not remedy poverty and unemployment, mob irrationality would metastasize as illiberal politics opposed to private and political freedom.

The Volcker Shock was a cornerstone of the counterrevolutionary conservative project to reconstrue rather than allay the widespread fear and mistrust emanating from the economic anguish of the 1970s. Inflicting scarcity to crush the power of organized labor and resubmit workers to market commandments implemented the quintessential conservative prescription—discipline. Discipline is as much a cultural as a monetary category of rationalizing and ordering conduct. The conservative prescription was so successful because it was based on an accessible and persuasive moral worldview that explained anxiety-inducing material crisis in terms of social flux. Improvident overspending by a welfare state that had lost the “old time fiscal religion” had led not just to inflation but also to a general decline in Protestant self-denial whose symptoms included (racially coded) criminality and liberalized attitudes to sex.[5] Licensing dread of social anarchy and inviting its attribution to moral permissiveness warranted reimposition of moral discipline by political and economic force from above. The retrenchment of capital’s power came through the revived hegemony of moralized asceticism and personal responsibility. By remaking political consciousness, and economizing democracy, conservatism tapped into mass economic anxiety to generate mass political support for scarcity and discipline. The retrenchment of minority rule by the rich was acclaimed by majorities interpellated by austere bourgeois common sense.

If capitalism does require politically enforced scarcity to maintain worker discipline and profitability, then some people will always be excluded from access to its riches. Precisely because Fishkin and Forbath are right that economics is always also politics, this will cry out for alibis to legitimate and systematize the distribution of these exclusions across status axes of ascriptive identity like race and sex. Conservatism’s principled commitment to the tiered inclusion of rightly unequal status groups would then make it the organic ideology of capitalist scarcity. If scarcity limits opportunity and necessitates exclusion, then it is no accident that the “most enduring and successful political strategy of the past fifty years” has been “convincing many white people that the most salient threat to their economic security and middle-class status comes from runaway, often court-enforced liberal drive toward racial and gender inclusion” (27). Nor should it be surprising that the mission of reasserting discipline to displace anxiety should so effectively combine populist participation with anti-inclusion policies (391). Or that fear of disorder was so thoroughly cathected as hostility toward liberal courts deemed authoritarians trying to remake morality from above by undoing the family and redistributing to undeserving minorities. Because conservatism advances such intelligible moral theodicies for suffering and fortune in capitalist society, the people themselves may very well generally favor substantively illiberal, undemocratic exclusion and hierarchy. Trump 2024 won an outright majority, after all, campaigning on racism, patriarchy, and xenophobia more explicitly than any mainstream candidate in at least a century. Neither generational replacement of hidebound Boomers nor the coming multiracial majority in America are reliable demographic fixes if we should expect the scarcity/anxiety/discipline trifecta to continue inducing identity-based rationalizations for hierarchy. For instance, thanks to insecure social and economic status coupled with women’s independence, we are already seeing a great mass of young men breaking bad.

Fishkin and Forbath are vehement that the three strands of the democracy-of-opportunity tradition “cannot succeed when separated and isolated” (353). But can they be successfully unified and integrated? Republicans betrayed Reconstruction as soon as it occurred to them that racial redistribution in the South might upset property relations in the North. The gains of the early New Deal required capitulating to demands by Southern senatorial barons to leave out race; the later effort to “complete” the New Deal with social and economic rights was thwarted largely by the Dixiecrats preserving their racially segmented labor market. The civil rights movement only held mainstream support in that brief instant when the neo-Keynesian conventional wisdom was that science had solved the major economic problems once and for all. Disadvantaged groups won some further cultural and constitutional acknowledgement under neoliberalism but only as the security of work and affordability of assets were forsaken. The past testifies repeatedly against effectively pursuing egalitarian politics of class and status at once. If scarcity, anxiety, and discipline are organic to capitalist society, then perhaps the discordance between redistribution and recognition is structurally rooted. The cogency of Fishkin and Forbath’s ambitions for unifying the democratic form of popular regulation of distribution with the democratic content of inclusive regulation of recognition depends on countering these structuralist hesitations.

III

For Fishkin and Forbath, oligarchy is the great threat to the Constitution’s democratic foundations. Mutually reinforcing concentrations of economic and political power enable the few to dominate the many. The Anti-Oligarchy Constitutions contends that fending off oligarchic class rule requires a “relentless focus on the distributional questions that were always at the heart of political economy” (407). For this anti-oligarchic prescription of redistribution through reform to be sufficient medicine, the etiology of oligarchic class domination must indeed be maldistribution of wealth and power.

This diagnosis is inaccurate, or at least incomplete, if concrete class relations of arbitrary power are a derivative expression of a more abstract wellspring of domination, i.e. to survive, most people must work for wages in jobs that contribute to the production of profits. If the root of class domination lies in the abstract power of money, then the fundamental political economic problem is not how wealth is distributed but how it is produced. Once again, a view broadly associated with Keynes—the credit theory of money—would have to be valid to keep the anti-oligarchy agenda aloft. Within this paradigm, the value of money is rooted in public debt supported by taxation, and it indexes political trust in the community and confidence in its future. At a key moment in their argument, Fishkin and Forbath favorably advert to the Chartalist theory of money as debt issued by the state (481). The contemporary Chartalism of Modern Monetary Theory tries to model a politics of democratization without endemic class struggle. The theory’s Wilhelminian originators, by contrast, understood these positions to be inverted. They conceived of the state as a monetary demiurge precisely to stand it above and beyond civil society so it could forcibly suppress sharpening class conflict through scientific administration.[6] Characterizing money as a measure of public debt rather than of labor time acknowledges it as a medium of circulating political power but holds it innocent with respect to class power in production. If the “monetary sovereign” is instead essentially riven between representing its citizenry and attending to the general class interest of capital, then any interventions on behalf of the working many will be circumscribed. The adequacy of fighting oligarchy through redistribution alone depends on the soundness of the credit theory: money must essentially be a debt-based measure of political trust, not a class-inflected measure of labor time.

The unspoken wager of Fishkin and Fobarth’s left-liberal hopes is that capitalism can be a political economy of abundance. Material productivity surely increases daily thanks to new technologies and organizational efficiencies, reaching vastly higher levels today were ever attained in past moments when the democracy-of opportunity-tradition unraveled. The gambit is that rising productivity has not translated into rising wages and inclusive employment because of a lack of appropriate state action. Alongside productive capacity itself, the decisive political economic determinants of the distribution of economic opportunity would be public spending on employment, progressive taxation, and the legal calibration of both labor’s bargaining power and the concentration of firms’ market power.

But the anti-oligarchy program is cut adrift from the anchor of abundance if the declining fortunes of labor ultimately result from the productivity gains themselves. On this view, competition itself tends inexorably to generate the profit-eroding overaccumulation of goods and capital. Competition drives expanding investment in mechanization, which raises productivity but lowers the ratio of profit-generating labor to total investment, undermining the overall rate of profitability. The remedy of robust antitrust to restore competition is not a panacea if concentration is as much an effect of stagnation as a cause. Nor can Keynesian deficits indefinitely absorb the glut of excess capital. If profitability derives from the total surplus extracted in production and not from demand artificially sustained by the state, then deficit-financed redistribution comes at the expense of current or future accumulation. According to this line of thought, the Keynesian state cannot overcome capitalism’s contradictory tendency for productivity gains to exacerbate rather than ameliorate distributional conflict. Furthermore, if that tendency frames the present, then the tension between organizing principles of social need and private profit—briefly reconciled for the white working-class family during the Keynesian era—would likely be more rather than less acute than ever today. The pressures to appropriate a stagnating pool of global profits squeezed from increasingly massive investments might also be expected to intensify geopolitical rivalries (like between the US and China), redounding to a culture of nationalist jingoism far more favorable to the rightwing authoritarian than the progressive democrat.[7]

From this point of view, our enormous scientific and technological advances and astonishing material riches would, perversely, tend to make it harder rather than easier to keep people gainfully employed. The basis for realizing profits is shifting ever more from the production of tangible commodities to drawing digital and intellectual rents from intangible assets.[8] As firms come to rely more on algorithms and less on workers to appropriate money, the fraction of the economy that can provide well-renumerated jobs continues to shrink. And AI has not yet executed its potentially apocalyptic culling. If there is an emerging rentier economy that is decoupling the profitability of firms from production, then an anti-oligarchy politics of redistribution through employment seems increasingly inadequate to fend off intensifying domination.

Fishkin and Forbath’s consistently ambivalent Keynesianism reflects a more general ambivalence about what sort of political economy they ultimately prescribe. They bemoan Cold War liberalism’s purge of socialists (373), favorably cite calls for “national economic planning” (387), and seem open to “controls on wages and prices” (405). They advocate a public banking system (482) and a massive expansion of provision for social needs through care jobs supported by public spending (483). Despite these gestures beyond a political economy organized by private investment for profit, their general agenda—and here too they are wholly representative of LPE—is to Make America a Great Mixed Economy Again (this time without the racism, sexism, and elitism). The beating heart of their political economic renaissance is a restoration of unions and a revitalization of antitrust that squarely addresses the distribution of power in production but not the fastening of production to profit. They are at pains to explicitly reject decoupling wages from survival: UBI cannot substitute for remunerative work “which continues to play a central role in most Americans’ conception of what it is to live a useful, meaningful life” (482).

The United States may indeed have a robust anti-oligarchy constitutional tradition. Nonetheless, a commitment to the class power embedded in private property and the scarcity value of money could hardly be more engrained in a constitution written specifically in response to Daniel Shays’ debt rebellion.[9] Perhaps the Constitution contradicts itself by promising equal citizenship for all but also entrenching class power for some. If so, how far can the implementation of anti-oligarchy politics get within the confines of capital’s Constitution? The practicability of the democracy-of-opportunity tradition may ultimately depend on how much agential slack there is for redistributing wealth and power within the structures of a constitutional political economy whose reproduction depends on the continued primacy of the private actors who command money and the labor of others.

I hope Fishkin and Forbath are right that we can have democratized political rule of the economy without capitalist rule of the state and politics—that full employment is feasible despite private control over investment, that democratizing regulation of distribution can coincide with pro-democracy regulation of recognition, and that oligarchy can be contained by redistributing money while leaving production for money in place. Otherwise, we may be facing a choice not between which longstanding constitutional tradition will achieve primacy for the time being, but which future beyond our existing constitutional traditions we will enter. Will it be the increasingly likely barbarism of authoritarian lock-up, techno-rentier predation, and rising international hostility, buttressed by white Christian populism, or the seemingly impossible revolutionary reorganization of the conditions of production—that specter that even LPE lawyers still dare not name?

[1] Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski and K. Sabeel Rahman, “Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis,” The Yale Law Journal 129, no 6 (2020): 1784-1835

[2] Geoff Mann, In the Long Run We are All Dead: Keynesianism, Political Economy and Revolution (Verso, 2017)

[3] Michal Kalecki, “Political Aspects of Full Employment,” Political Quarterly 14, no 4 (1943): 322–331

[4] Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism (Verso, 2017): xv-xvi, 25

[5] Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism (Zone Books, 2017)

[6] Jamie Merchant, Endgame: Economic Nationalism and Global Decline (Reaktion Books, 2024)

[7] Merchant, Endgame

[8] Cédric Durand, How Silicon Valley Unleashed Techno-feudalism: The Making of the Digital Economy (Verso, 2024)

[9] Woody Holton, Unruly Americans and the Origins of the Constitution (Hill and Wang, 2007)