William Forbath

America has awakened to the threat of oligarchy. While inequality has been growing for decades, the Great Recession has made clear its social and political consequences: a narrowing of economic opportunity, a shrinking middle class, and an increasingly entrenched wealthy elite. There remains broad agreement that it is important to avoid oligarchy and build a robust middle class. But we have lost sight of the idea that these are constitutional principles.These principles are rooted in a tradition we have forgotten – one that this Article argues we ought to reclaim. Throughout the nineteenth and early twentieth centuries, generations of reformers responded to moments of mounting class inequality and crises in the nation’s opportunity structure with constitutional claims about equal opportunity. The gist of these arguments was that we cannot keep our constitutional democracy – our republican form of government – without constitutional restraints against oligarchy and a political econom...

IntroductionWhen you are writing a book, the best thing you can hope for is to find thoughtful readers and interlocutors. We are enormously grateful to have the opportunity to be in conversation with the other participants in this Symposium-especially the ones responding to our book, and even more especially at this stage in the process, when we are still writing it. in this brief response, we will focus first on one issue that is central to many of the other contributions to the Symposium. Then we will briefly address a series of objections or concerns about our project that different contributors to this Symposium helpfully raise.The contributions from Jed Purdy,1 Cynthia Estlund,2 and Jack Balkin3 responding to our manuscript, as well as contributions from Frank Michelman4 and Sabeel Rahman5 earlier in the Symposium, circle around a common question that is easily stated: in what sense, exactly, is our project about the Constitution?We are all asking versions of this question for ...

In the wake of the crash of 2008, some economic facts have become impossible to ignore: we are becoming a startlingly unequal society, in terms of both wealth and economic opportunity. With post-crash wages stagnant, the vaunted American middle class today is on precarious ground. With opportunities for a middle-class livelihood shrinking, a large part of the former middle class is edging downward toward a more precarious place, closer to that of the poor, while a much smaller group is edging upward toward great wealth. The poor are becoming more geographically concentrated, separate from the rich and even from the middle.1 The very wealthy are ascending to heights of wealth, power, and influence that recall the last Gilded Age a century ago. And where economics goes, politics seems to follow. As the presidential campaign unfolds, we see candidates whose financing (through Super PACs) depends to a startling degree on a number of wealthy backers you can count on one hand-backers who ...

Reports of the Strange Death of Liberal America are greatly exaggerated. James Henretta's essay of that title offers a shrewd and insightful portrait of Charles Evans Hughes. But the liberalism whose death Henretta reports did not die. And the “statist,” “centralization,” “economic planning,” and broad “social insurance” minded liberalism he reports as prevailing did not prevail. From a certain lofty altitude (and rueful attitude), all “big,” “modern” “welfare states” look the same. That is Henretta's viewpoint. His wonderfully suggestive comparative framework has as one of its premises that America and England proceeded along the administrative-and-welfare-state-building path at different paces but arrived at the same destination. For me, a comparison of the law and politics, processes and outcomes of twentieth-century state-building in the U.S. and England prompts different conclusions. There were conspicuous differences between the New Deal state that was fashioned in 1930s and '40s America and the welfare state England created in those decades. More interestingly, the ideology and institutional contours of this new American state were deeply influenced by that ambivalent (and lawyerly) brand of American liberalism Henretta rightly attributes to figures such as Hughes and Roscoe Pound—poised between “progressive” commitments to social reform, social provision, and administrative-state-building, on the one hand, and older, “classical” liberal commitments to limited (and decentralized, dual federalist) government and the primacy of courts and common law and traditional legal and constitutional niceties, on the other. My notion is that this “transitional” and “forgotten” liberalism and its champions won more important battles than they lost against their “statist” rivals. A “strange death,” indeed!