Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance with... more Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From “law and political economy” to critical race theory to feminist legal studies to neo-Marxist legal theory, new perspectives have flourished and marginalized traditions have been revived. What they all share, however, is a point of intellectual origin in the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extra-legal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. But others, most especially historical materialism, hailed from the political left. For CLS and its successors, the failure of historical materialism to account for the indeterminacy of law, the contingency of legal development, and the autonomous causal power of law and legal actors to shape society was (and remains) disqualifying. This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law has the resources to make sense of the apparent indeterminacy, contingency, and autonomy of law and legal actors at least as well as CLS and its successors. It can also make better sense of three additional phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world.
The right of conscientious objection to military service is the most startling of human rights. W... more The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state\u27s decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human rights law and national sovereignty
Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schoo... more Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values -- the usual focus of criticism -- for those values are a...
This is a brief surreply to Charles Barzun, Working for the Weekend: A Response to Kessler & Poze... more This is a brief surreply to Charles Barzun, Working for the Weekend: A Response to Kessler & Pozen, 83 U. Chi. L. Rev. Online 225 (2017), which responds to Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016). Our article Working Themselves Impure concludes by calling for lawyers to take more seriously the failure of prescriptive legal theories to produce the results they once promised. When prescriptive legal theories that fail to achieve their initial, publicly stated goals nonetheless gain and sustain broad support, "external" explanations of their persistence may offer a compelling alternative to increasingly convoluted internal explanations. The former kinds of explanation cannot decisively defeat the latter, but they do give the legal community a choice. Barzun would prefer to foreclose this choice: while sociologists and political scientists might be expected to prefer a given external e...
Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a ... more Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath’s new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires — “requires” in the double sense of “demands” and “depends upon.” This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly “one-sided.” First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society’s remaining achievements, trumpeting a constitutional political economy in which private property free of ove...
Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the ... more Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a more egalitarian First Amendment look like today? After describing the phenomenon of First Amendment Lochnerism, we trace its origins to the collapse of the early twentieth-century "progressive" model of civil libertarianism, which offered a relatively statist, collectivist, and labor-oriented vision of civil liberties law. The recent e...
Nearly forty years ago, Professor James O. Freedman described the American administrative state a... more Nearly forty years ago, Professor James O. Freedman described the American administrative state as haunted by a “recurrent sense of crisis.”1 “Each generation has tended to define the crisis in its own terms,”2 and “each generation has fashioned solutions responsive to the problems it has perceived.”3 Yet “a strong and persisting challenge to the basic legitimacy of the administrative process” always returns, in a new guise, to trouble the next generation.4 On this account, the American people remain perennially unconvinced that administrative decisionmaking is “appropriate, proper, and just,”5 entitled to respect and obedience “by virtue of who made the decision” (executive officials) and “how it was made” (the administrative process).6
Between 1953 and 1960, the United States’ overall military and intelligence-gathering capacities ... more Between 1953 and 1960, the United States’ overall military and intelligence-gathering capacities grew enormously, driven by President Eisenhower’s “New Look” approach to fighting the Cold War. But the distribution of powers within this New Look national-security state, the shape of its institutional structures, and its sources of legitimacy remained up for grabs. The eventual settlement of these issues would depend on administrative constitutionalism—the process by which the administrative state both shapes and is shaped by constitutional norms, often through ostensibly non-constitutional law and policymaking. Constitutional concerns about civil liberties, administrative procedure, and the separation of powers ran highest in those branches of the nationalsecurity state responsible for regulating civilian and military manpower, such as the Loyalty-Security Program, an inter-agency effort to root out ideologically deviant federal employees, and the Selective Service System, the civili...
From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic a... more From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did...
A volatile series of presidential transitions has only intensified the century-long conflict betw... more A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance–a kind of provisional “rule” that invites its own revision–mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need of continual correction. Administrative law has the resources to ensure that the provisionality of guidance does not lead to the abuses that conservatives fear. But to deploy those resources–and to carry through the reforms of administrative organization that are their natural complement–progressives must rethink the...
Over the past decade, the Roberts Court has handed down a series
of rulings that demonstrate the... more Over the past decade, the Roberts Court has handed down a series
of rulings that demonstrate the degree to which the First Amendment
can be used to thwart economic and social welfare regulation—
generating widespread accusations that the Court has created a “new
Lochner.” This introduction to the Columbia Law Review’s
Symposium on Free Expression in an Age of Inequality takes up three
questions raised by these developments: Why has First Amendment law
become such a prominent site for struggles over socioeconomic inequality?
Does the First Amendment tradition contain egalitarian elements
that could be recovered? And what might a more egalitarian First
Amendment look like today?
Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schoo... more Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure. This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values—the usual focus of criticism—for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second-and third-order social, political, and ideological effects that the adulterated theory's persistence may foster down the line.
From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic a... more From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative " conscience clauses " are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such " First Amendment Lochnerism " date back to the federal judiciary's initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds.
Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a ... more Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath’s new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires — “requires” in the double sense of “demands” and “depends upon.” This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly “one-sided.” First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society’s remaining achievements, trumpeting a constitutional political economy in which private property free of overweening public management is the pillar of constitutional democracy. Confronted by these dire conditions, legal liberals have forgotten how to fight back, rendered mute by the New Deal synthesis itself, which ironically and erroneously implied that political economy was no longer a matter of constitutional concern. Hoping to even the odds, Fishkin and Forbath offer liberals a grammar of egalitarian constitutional political economy — “the constitution of opportunity” — that was once spoken fluently and effectively by those Americans who argued that the Constitution prohibited oligarchic concentrations of wealth and mandated the political and judicial construction of a broad, inclusive middle class.
By placing the discourse of political economy back at the center of constitutional debate, Fishkin and Forbath have — by any fair measure — done more than enough. Yet scholarly innovators tend to find the ranks of their critics swelled by those who have benefited most from their labor. This Essay is no exception to the oedipal rule. It argues that Fishkin and Forbath could go further still in integrating political economy and constitutional history. At times, their detailed analysis of the discourse of “constitutional political economy” comes at the expense of a more fully materialist account of the political-economic conditions and effects of that discourse. Such a discursive emphasis, in turn, risks an overly optimistic assessment of the past virtues and present utility of “the constitution of opportunity,” the egalitarian dialect of constitutional political economy that Fishkin and Forbath commend to legal liberals today.
Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance with... more Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From “law and political economy” to critical race theory to feminist legal studies to neo-Marxist legal theory, new perspectives have flourished and marginalized traditions have been revived. What they all share, however, is a point of intellectual origin in the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extra-legal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. But others, most especially historical materialism, hailed from the political left. For CLS and its successors, the failure of historical materialism to account for the indeterminacy of law, the contingency of legal development, and the autonomous causal power of law and legal actors to shape society was (and remains) disqualifying. This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law has the resources to make sense of the apparent indeterminacy, contingency, and autonomy of law and legal actors at least as well as CLS and its successors. It can also make better sense of three additional phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world.
The right of conscientious objection to military service is the most startling of human rights. W... more The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state\u27s decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human rights law and national sovereignty
Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schoo... more Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values -- the usual focus of criticism -- for those values are a...
This is a brief surreply to Charles Barzun, Working for the Weekend: A Response to Kessler & Poze... more This is a brief surreply to Charles Barzun, Working for the Weekend: A Response to Kessler & Pozen, 83 U. Chi. L. Rev. Online 225 (2017), which responds to Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819 (2016). Our article Working Themselves Impure concludes by calling for lawyers to take more seriously the failure of prescriptive legal theories to produce the results they once promised. When prescriptive legal theories that fail to achieve their initial, publicly stated goals nonetheless gain and sustain broad support, "external" explanations of their persistence may offer a compelling alternative to increasingly convoluted internal explanations. The former kinds of explanation cannot decisively defeat the latter, but they do give the legal community a choice. Barzun would prefer to foreclose this choice: while sociologists and political scientists might be expected to prefer a given external e...
Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a ... more Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath’s new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires — “requires” in the double sense of “demands” and “depends upon.” This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly “one-sided.” First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society’s remaining achievements, trumpeting a constitutional political economy in which private property free of ove...
Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the ... more Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review's Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a more egalitarian First Amendment look like today? After describing the phenomenon of First Amendment Lochnerism, we trace its origins to the collapse of the early twentieth-century "progressive" model of civil libertarianism, which offered a relatively statist, collectivist, and labor-oriented vision of civil liberties law. The recent e...
Nearly forty years ago, Professor James O. Freedman described the American administrative state a... more Nearly forty years ago, Professor James O. Freedman described the American administrative state as haunted by a “recurrent sense of crisis.”1 “Each generation has tended to define the crisis in its own terms,”2 and “each generation has fashioned solutions responsive to the problems it has perceived.”3 Yet “a strong and persisting challenge to the basic legitimacy of the administrative process” always returns, in a new guise, to trouble the next generation.4 On this account, the American people remain perennially unconvinced that administrative decisionmaking is “appropriate, proper, and just,”5 entitled to respect and obedience “by virtue of who made the decision” (executive officials) and “how it was made” (the administrative process).6
Between 1953 and 1960, the United States’ overall military and intelligence-gathering capacities ... more Between 1953 and 1960, the United States’ overall military and intelligence-gathering capacities grew enormously, driven by President Eisenhower’s “New Look” approach to fighting the Cold War. But the distribution of powers within this New Look national-security state, the shape of its institutional structures, and its sources of legitimacy remained up for grabs. The eventual settlement of these issues would depend on administrative constitutionalism—the process by which the administrative state both shapes and is shaped by constitutional norms, often through ostensibly non-constitutional law and policymaking. Constitutional concerns about civil liberties, administrative procedure, and the separation of powers ran highest in those branches of the nationalsecurity state responsible for regulating civilian and military manpower, such as the Loyalty-Security Program, an inter-agency effort to root out ideologically deviant federal employees, and the Selective Service System, the civili...
From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic a... more From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did...
A volatile series of presidential transitions has only intensified the century-long conflict betw... more A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance–a kind of provisional “rule” that invites its own revision–mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need of continual correction. Administrative law has the resources to ensure that the provisionality of guidance does not lead to the abuses that conservatives fear. But to deploy those resources–and to carry through the reforms of administrative organization that are their natural complement–progressives must rethink the...
Over the past decade, the Roberts Court has handed down a series
of rulings that demonstrate the... more Over the past decade, the Roberts Court has handed down a series
of rulings that demonstrate the degree to which the First Amendment
can be used to thwart economic and social welfare regulation—
generating widespread accusations that the Court has created a “new
Lochner.” This introduction to the Columbia Law Review’s
Symposium on Free Expression in an Age of Inequality takes up three
questions raised by these developments: Why has First Amendment law
become such a prominent site for struggles over socioeconomic inequality?
Does the First Amendment tradition contain egalitarian elements
that could be recovered? And what might a more egalitarian First
Amendment look like today?
Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schoo... more Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure. This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle counsels a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values—the usual focus of criticism—for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second-and third-order social, political, and ideological effects that the adulterated theory's persistence may foster down the line.
From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic a... more From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative " conscience clauses " are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such " First Amendment Lochnerism " date back to the federal judiciary's initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds.
Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a ... more Joseph Fishkin and William Forbath’s book-in-progress, The Anti-Oligarchy Constitution, offers a radical alternative to the constitutional histories that emerged in the 1990s to defend the New Deal synthesis. Fishkin and Forbath’s new constitutional history promises to recast the New Deal as a contingent and incomplete resolution of a centuries-long struggle to achieve the political-economic conditions that the Constitution requires — “requires” in the double sense of “demands” and “depends upon.” This struggle is still ongoing and even accelerating, Fishkin and Forbath report, yet it has become increasingly “one-sided.” First, the post-WWII economic boom dissipated, taking with it much of the middle class that the New Deal and Great Society legal orders had hoped to create. Then, conservative lawyers and politicians stepped up their attacks on the New Deal and Great Society’s remaining achievements, trumpeting a constitutional political economy in which private property free of overweening public management is the pillar of constitutional democracy. Confronted by these dire conditions, legal liberals have forgotten how to fight back, rendered mute by the New Deal synthesis itself, which ironically and erroneously implied that political economy was no longer a matter of constitutional concern. Hoping to even the odds, Fishkin and Forbath offer liberals a grammar of egalitarian constitutional political economy — “the constitution of opportunity” — that was once spoken fluently and effectively by those Americans who argued that the Constitution prohibited oligarchic concentrations of wealth and mandated the political and judicial construction of a broad, inclusive middle class.
By placing the discourse of political economy back at the center of constitutional debate, Fishkin and Forbath have — by any fair measure — done more than enough. Yet scholarly innovators tend to find the ranks of their critics swelled by those who have benefited most from their labor. This Essay is no exception to the oedipal rule. It argues that Fishkin and Forbath could go further still in integrating political economy and constitutional history. At times, their detailed analysis of the discourse of “constitutional political economy” comes at the expense of a more fully materialist account of the political-economic conditions and effects of that discourse. Such a discursive emphasis, in turn, risks an overly optimistic assessment of the past virtues and present utility of “the constitution of opportunity,” the egalitarian dialect of constitutional political economy that Fishkin and Forbath commend to legal liberals today.
Uploads
of rulings that demonstrate the degree to which the First Amendment
can be used to thwart economic and social welfare regulation—
generating widespread accusations that the Court has created a “new
Lochner.” This introduction to the Columbia Law Review’s
Symposium on Free Expression in an Age of Inequality takes up three
questions raised by these developments: Why has First Amendment law
become such a prominent site for struggles over socioeconomic inequality?
Does the First Amendment tradition contain egalitarian elements
that could be recovered? And what might a more egalitarian First
Amendment look like today?
By placing the discourse of political economy back at the center of constitutional debate, Fishkin and Forbath have — by any fair measure — done more than enough. Yet scholarly innovators tend to find the ranks of their critics swelled by those who have benefited most from their labor. This Essay is no exception to the oedipal rule. It argues that Fishkin and Forbath could go further still in integrating political economy and constitutional history. At times, their detailed analysis of the discourse of “constitutional political economy” comes at the expense of a more fully materialist account of the political-economic conditions and effects of that discourse. Such a discursive emphasis, in turn, risks an overly optimistic assessment of the past virtues and present utility of “the constitution of opportunity,” the egalitarian dialect of constitutional political economy that Fishkin and Forbath commend to legal liberals today.
of rulings that demonstrate the degree to which the First Amendment
can be used to thwart economic and social welfare regulation—
generating widespread accusations that the Court has created a “new
Lochner.” This introduction to the Columbia Law Review’s
Symposium on Free Expression in an Age of Inequality takes up three
questions raised by these developments: Why has First Amendment law
become such a prominent site for struggles over socioeconomic inequality?
Does the First Amendment tradition contain egalitarian elements
that could be recovered? And what might a more egalitarian First
Amendment look like today?
By placing the discourse of political economy back at the center of constitutional debate, Fishkin and Forbath have — by any fair measure — done more than enough. Yet scholarly innovators tend to find the ranks of their critics swelled by those who have benefited most from their labor. This Essay is no exception to the oedipal rule. It argues that Fishkin and Forbath could go further still in integrating political economy and constitutional history. At times, their detailed analysis of the discourse of “constitutional political economy” comes at the expense of a more fully materialist account of the political-economic conditions and effects of that discourse. Such a discursive emphasis, in turn, risks an overly optimistic assessment of the past virtues and present utility of “the constitution of opportunity,” the egalitarian dialect of constitutional political economy that Fishkin and Forbath commend to legal liberals today.