The focus of our October discussion was a book by Joseph Fishkin and William E. Forbath entitled The Anti-Oligarchy Constitution (2022). It was summarized for us by Rob Katz. The book is not about creating a new Constitution, but focuses on how the Constitution has been interpreted at many points in our history to establish greater economic justice.
The point of the US Revolution was to overthrow oligarchy, but early in our history a new ruling class was quickly established. Various movements and leaders periodically challenged our oligarchical trends, particularly under the administrations of two presidents named Roosevelt. Teddy Roosevelt sought to break up monopolies, and FDR argued that it was a constitutional necessity to overthrow “economic royalists” and build a “democracy of opportunity” for all Americans. The book argues that “we cannot keep our constitutional democracy — our republican form of government — without (1) restraints against oligarchy, (2) a political economy that sustains a robust middle class and (3) the constitutional principle of inclusion — across lines such as race and sex.”
The authors tell us that “The principle upholders of the Constitution are not the courts but Congress and the legislatures and executives … the Constitution imposed affirmative obligations on all branches of government, but especially the elected branches, to pass and implement the legislation needed to enforce the Constitution.” It is up to the courts to support the intent of laws created by the other branches, but not to impose their own interpretation.
The phrase “political economy” is essential to understanding our present crisis. Adam Smith, John Stuart Mill and Karl Marx held economics and politics to be inseparable. They wrote about how those with economic power control our political system. In the twentieth century, mainstream economics became more technical, concerned with growth and divorced from the value questions regarding distribution of political and economic power. The Right, on the other hand, had a vision of political economy that included low taxes and deregulation, and fostered economic redistribution in favor of the oligarchical class.
Our country has a long anti-oligarchical tradition. The US Constitution abolished abuses such as hereditary offices that were common in colonial America (and in England) and prohibited titles of nobility and primogeniture, which was passing on of estates and wealth to the oldest son. Thomas Jefferson, who is revered by conservatives for his supposed small government positions, argued for legislation that would guarantee every man in Virginia 50 acres of land, and also for providing basic education and permitting students from all classes to receive higher education.
Andrew Jackson made a stand against oligarchy when he vetoed a bill that would have renewed the charter of the Second Bank of the United States (1832), as he invoked “equal protection of the laws,” which, for him, concerned economic classes, not race. Jacksonians supported the “principle of Equal Rights … which lies at the bottom of our Constitution.” Abraham Lincoln supported the free labor system of the North, as opposed to the slavery system of the South, making the claim that the free labor system presented all workers a chance to advance themselves.
After the US Civil War, there was a discussion of redistributing slaveholders’ land to former slaves which never became law, but the Freedman’s Bureaus established schools and material assistance including homesteading on public land, to newly freed slaves to ensure equal citizenship under the Thirteenth and Fourteenth amendments.
Later in the 19th century, large corporate monopolies gained great power, which was fought by the Populist and Progressive movements into the next century. The 16th Amendment (1913) established the Federal income tax, and the 17th (1913) provided for direct election of senators, rather than being appointed by their legislators. The right of women to vote was established by the 19th amendment (1920). The rights of workers to fair pay and safe work conditions — and the elimination of child labor — was a significant emphasis of that period.
But the Supreme Court, as it has for most of our history, maintained a more regressive view. It ruled in Lochner v New York (1905) and other cases that the Fourteenth Amendment, which guaranteed that all citizens would not be deprived of liberty without due process of law, incorporated the principle of “liberty of contract” that restricted the government’s ability to regulate the conditions of employment, ignoring that workers often had little ability to bargain with their employers. These rulings meant that states were, in many cases, prohibited from legislating limits on working hours and other conditions of employment.
FDR was concerned that The Wagner Act (1935), which created the National Relations Labor Board to enforce employee rights to collective bargaining, also would be overturned. But public opinion, reflected in FDR’s landslide re-election in 1936, may have persuaded the Court to uphold this landmark legislation.
During the McCarthy era of the 1950s, anyone proposing legislation that was seriously pro-worker or favored redistribution of income was in danger of being labeled a communist. This moved economic rights for workers a step backwards.
The Civil Rights Act of 1964, signed into law by President Lyndon Johnson, prohibited discrimination in public places, provided for the integration of schools and other public facilities, and made employment discrimination illegal. The Voting Rights Act of 1965 outlawed discriminatory voting practices, including literacy tests, as a prerequisite to voting. However, the Johnson administration failed to address trends such as automation that were leading to a decline in the good-paying working-class jobs that were the basis of post-war prosperity and could help raise the economic fortunes of Blacks and other minorities that had suffered from discrimination.
Starting in the 1970s, and particularly in the Reagan years, there was a steep decline in union power and membership with Democrats unwilling to defend union rights. An increasingly conservative Supreme Court promoted corporate power. The movement toward “limiting government” protected the rich and undermined efforts to include those previously excluded from equal economic consideration. The authors suggest that the political left now must counter with its own constitutional economic program, that would include a wealth tax, greater enforcement of antitrust laws, and reinvigorating labor law to empower unions.
Next month’s topic: We will discuss The Nature of Conspiracy Theories by Michael Butter.
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Steve Zolno is the author of the book The Future of Democracy and several related titles. He graduated from Shimer College with a Bachelor’s Degree in Social Sciences and holds a Master’s in Educational Psychology from Sonoma State University. He is a Management and Educational Consultant in the San Francisco Bay Area and has been conducting seminars on democracy since 2006.