The Anti-Oligarchy Constitution

Abstract

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 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 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 form of - without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone. Extreme inequality and oligarchic concentrations of power pose distinct constitutional problems, both in the sphere itself and because and political power are intertwined; a moneyed aristocracy or economic royalists may threaten the Constitution's democratic foundations.This Article introduces the characteristic forms of these arguments about constitutional political economy and begins to tell the story of anti-oligarchy as a constitutional principle. It offers a series of snapshots in time, beginning with the distinctive political economy of the Jacksonian Democrats and their vision of equal protection. We then move forward to Populist constitutionalism, the Progressives, and the New Deal. The Constitution meant different things to these movements in their respective moments, but all understood the Constitution as including some form of commitment to a political economy in which power and opportunity were dispersed among the people rather than concentrated in the hands of a few. We conclude with a brief discussion of how this form of constitutional argument was lost, and what might be at stake in recovering it.INTRODUCTIONThe Great Recession has awakened us to something new in the nation's social and development. Inequality has been rising for decades, but recent shocks have laid bare what this means for our social structure: a shrinking middle and an increasingly entrenched wealthy elite. Americans remain profoundly attached to an idea of America as a middle-class nation, with very few of us on the margins, abundant opportunities to raise oneself or one's offspring into the middle classes, and everyone enjoying a fair shot at wealth and success. In fact we are becoming the opposite. The number of Americans facing real poverty is growing; opportunities for middle-class livelihoods are shrinking; and clout is becoming concentrated at the top to a degree that recalls the last Gilded Age.1 As structures of opportunity have grown increasingly narrow and brittle, and differences have widened, the nation is becoming what reformers throughout the nineteenth and early-twentieth century meant when they talked about a society with a moneyed aristocracy or a ruling class - an oligarchy, not a republic.Not a republic? That claim sounds constitutional in nature. And indeed it is. But it is a claim rooted in a constitutional tradition that we have forgotten - one that this Article argues we ought to reclaim.2 Throughout the nineteenth and early twentieth centuries, waves of reformers of widely different stripes responded to crises in the nation's opportunity structure like the one we are experiencing today with constitutional claims about equal opportunity. These reformers argued essentially that we cannot keep our constitutional democracy - our republican form of government - without constitutional restraints against oligarchy and a political economy that maintains a broad middle class, accessible to everyone. …