In their essay for this forum, and in the book from which it is adapted, Joseph Fishkin and William E. Forbath have provided a pathbreaking intervention in constitutional history and politics, one that will fundamentally reshape how scholars imagine the relationship between the Constitution and the economy. For decades there has been a taken-for-granted left-liberal framework for thinking about the connection between the Constitution and the economy. Its roots stretch back to Oliver Wendell Holmes, Jr.’s dissent to the Supreme Court’s infamous 1905 decision in Lochner v. United States, which struck down New York state maximum hour laws in the baking industry. Holmes defended the legality of such labor protections by saying that the Constitution embodied no “particular economic theory.” As a result, Holmes thought, it should be the political branches’ responsibility to decide how to regulate the market or to determine distributive outcomes.
Fishkin and Forbath rightly note that the liberal embrace of this outlook has had disastrous consequences. The desire to cabin off the economy from the Constitution has left liberal legal voices ill-equipped to address the depredations of U.S. capitalism. It has meant that scholars and lawyers have largely ignored the structural features of the constitutional order that have promoted the business right’s assault on social democracy. It has also meant that while business conservatives have developed a sophisticated judicial analysis contending that the Constitution requires their preferred distributive outcome, left-liberal lawyers have by and large failed to offer an alternative legal vision of what constitutes a democratic political economy. Fishkin and Forbath address this profound lacuna by looking to a democracy-of-opportunity tradition, one critical of oligarchy and committed to socioeconomic equality and broad-ranging inclusion.
All of this is to be applauded. What I want to do here is explore one of the thorniest issues connected to the democracy-of-opportunity tradition: the persistent political link in historical practice between U.S. imperial power and internal economic equality. My comments are less a critique of Fishkin and Forbath’s argument and more an attempt to think through why the tradition has remained historically incomplete and only partially fulfilled. They certainly highlight how the “tragedy of American political and constitutional development” entails the longstanding wedding of “democratic and egalitarian aspirations to the racist causes” of slavery and Indigenous dispossession, not to mention gender subordination. As Fishkin and Forbath are well aware, the problem with U.S. constitutional development has been more than a failure to live up to inclusive ideals. The actual historical high tides for the domestic experience of democracy of opportunity have very clearly occurred during periods of territorial and global expansionism.
One can appreciate this link by exploring the law and politics of the mid-nineteenth and mid-twentieth centuries. With respect to the long Jacksonian era, Thomas Piketty notes in Capital in the Twenty-First Century (2014) that throughout the 1800s—indeed even during the Gilded Age—wealth inequality in the United States was “markedly lower than in Europe.” Piketty does not provide a proper explanation for why, but the answer is fairly evident. Throughout the century, the dominant collective project was the imperial one of “settling” Indigenous land—expropriating territory and demographically replacing Native with white communities. This project provided easy access to property, cut against oligarchic tendencies, and facilitated small-scale white producerist democracy. White settler society did have its persistent class inequalities. But it was empire that fed the cultural embrace of Jacksonian white egalitarianism and made the democracy-of-opportunity tradition real for countless white laborers. In this way, the tradition was inextricably a settler imperial one.
There are striking resonances too with the mid-twentieth century. In his history of labor in the 1970s, Stayin’ Alive (2011), Jefferson Cowie quotes the son of a white steelworker, who recalled the dramatic material improvements his family enjoyed following World War II: “If what we lived through in the 1950s was not liberation . . . then liberation never happens in real human lives.” The background context for this boom was the war and its aftereffects, in particular the transformation of the United States from one among various global players to the dominant economic force in the world. With European powers decimated, the United States essentially became the hegemonic actor. Its currency emerged as the global reserve currency, and through the carrot of development assistance and the stick of military intervention and violent coups, it reconstructed foreign states in its image, in the process opening markets for U.S. goods. Such economic and military dominance was the international underpinning for the domestic promotion of white middle-class prosperity.
This historical connection between empire and the experience of democracy of opportunity carries serious political and constitutional implications. Politically, perhaps the greatest challenge facing any effort to recover the tradition for the present is that it has historically been strongest through the flexing of external power. In other words, while there is a clear record of what amounts to imperial social democracy in the United States, a practical history of linking anti-imperialism with genuine economic transformation is far sparser.
“There have always been powerful examples of efforts to wed anti-imperialism and democracy of opportunity. We must bring them into the mainstream.”
This fact also underscores a key reason why those high tides were so politically partial. In the 1800s, even the more inclusive versions of settler democracy—the agenda Reconstruction Republicans pursued after the Civil War, for instance—by and large rested on an overarching project of settler colonization. White Republicans at their most expansive still saw civil rights for Black people as perfectly compatible with frontier expansion and Native absorption—the elimination of Indigenous nations as independent political communities sharing the same territorial landmass. There was limited space in political life for a truly anti-imperial vision that would have combined Black freedom and Indigenous self-determination.
As legal historian Mark Graber has demonstrated, this phenomenon eventually had effects on white Republican interest in Black voting rights in the South. The continuous party push to open western land to settlement meant that Republicans less committed to Black equality found an alternative mechanism for ensuring that the party maintained its national dominance. Where those like Thaddeus Stevens may have wanted to create a multiracial political coalition built around the southern Black vote, others could imagine the party enjoying permanent majority status through midwestern Republican constituents settling new states and electing reliably Republican politicians to the House, the Senate, and the presidency. In short, empire offered what Graber calls a “westward alternative” to an inclusive democracy of opportunity.
As for the twentieth century, it was not a coincidence that the post–World War II settlement treated jobs, pensions, and health insurance as private entitlements for workers to negotiate from employers rather than as universal public goods. The terms of U.S. global primacy dramatically elevated the position and wealth of U.S. business, in ways that made corporate interests seemingly coterminous with the public interest. The result was precisely that white workers could embrace a settlement as “liberation” that nonetheless gave up on actual economic democracy. Over time, as economic conditions changed and U.S. corporations squeezed workers abroad and then at home, what remained of the mid-century achievements largely disappeared. Thus, not unlike the 1800s, it is fair to conclude that U.S. empire both provided the backdrop for the ultimate postwar framework, but also was partly responsible for why U.S. social democracy fell so short.
There have been constitutional costs as well, with proponents of the democracy-of-opportunity tradition embracing coercive legal regimes. For Jacksonians, the goal of internal white settler democracy justified legal frameworks that gave government actors broad discretion to employ violence in pursuing territorial expansion as well as in organizing the racial management of subordinated communities. During the mid-twentieth century, it was again not an accident that New Dealers and postwar liberals were also the central architects of the national security state. This design went hand in hand with legal doctrines that ensured extensive deference to presidents and to officials when unilaterally applying force overseas or pursuing security crackdowns at home.
None of this is to suggest that one should simply do away with the democracy-of-opportunity tradition. Its political and legal links with empire were complex ideological configurations rather than philosophical requirements. Still, this history is our inheritance, and many of the figures venerated for promoting a more democratic political economy certainly understood their own imperial projects as necessarily and intrinsically joined.
Fishkin and Forbath have provided an essential intellectual and political contribution by placing constitutional arguments from this tradition at the center of our conversations about law and capitalism and in recovering a past emancipatory language. But we must also take the historical record seriously. How can we create political movements that instead wed anti-imperialism and democracy of opportunity, reversing what has been the far more common cultural linkage? Only by severing the ties between domestic economic reforms, nationalist belligerence, and external power projection will the democracy-of-opportunity tradition promote equal and effective freedom for all.
Editors’ Note: This response is adapted from the author’s contribution to a recent Law and Political Economy Project symposium.