Evidence from around the world strongly suggests that liberal constitutions don’t fare well in countries with oligarchic social structures. Michael Greve reviews “The Crisis of the Middle-Class Constitution” by Ganesh Sitaraman.
Our Constitution establishes a handful of institutions; vests them with limited powers; and imposes a set of decision rules. End of document. If that minimalist model has proved stable stateside but nowhere else, that is because it presupposes a great deal, including a constitutionalist tradition that long predated the written document and a kind of middling, bourgeois virtue among its citizens. It may also require a certain social and economic structure.
That, at any rate, is the contention of Ganesh Sitaraman, senior fellow at the Center for American Progress and professor at Vanderbilt Law School. The Constitution, he argues, presupposes a stable and politically potent middle class. That class is now nearing collapse, and “economic inequality threatens our republic.” He foresees the corruption and hollowing-out of the constitutional order—a plutocratic regime run by and for a small moneyed elite.
Mr. Sitaraman is onto an important insight, or at least a pressing question. Evidence from around the world strongly suggests that liberal constitutions do not fare well in countries with oligarchic social structures. Today, America’s middle class is indeed beleaguered. Constitutional forms have given way to congressional polarization, executive imperialism and judicial improvisation, and voters left and right have concluded that “the system is rigged.” Mr. Sitaraman plausibly insists that these phenomena are connected. Unfortunately, he fails to pursue the thought with the rigor it deserves.
Societies that are deeply divided by class (or, for that matter, by race or religion) cannot afford a minimalist, U.S.-style constitution: It leaves too much to chance and politics. They have to acknowledge the existence of classes; give them constitutional recognition; and provide incentives for cooperation. That, Mr. Sitaraman explains, was the point of ancient, “mixed” or, as the author prefers to say, “class-warfare” constitutions. One might add that modern-day constitutions for divided societies (think Iraq) follow the same logic.
PHOTO: WSJ
THE CRISIS OF THE MIDDLE-CLASS CONSTITUTION
By Ganesh Sitaraman
Knopf, 423 pages, $28
Knopf, 423 pages, $28
Our Constitution rejects that model. While its formal structure resembles a mixed constitution between the one (president), the few (the Senate) and the many (the House), that division serves to stabilize a system of checks and balances, not to entrench class positions. The dreadful slavery bargain aside, the Constitution recognizes no class distinctions and, in the one provision that speaks directly to the question, prohibits titles of nobility.
America’s escape from the logic of class-warfare constitutions, Mr. Sitaraman argues with a nod to Alexis de Tocqueville, was made possible by the remarkable degree of economic equality at the time. But eventually, he says, the vibrant spirit of commerce and industry unleashed by a constitutional order that knows no class distinctions, undermined the very democracy that brought it into existence. The author offers a withering account of the plutocracy of the Gilded Age, followed by a conventional account of the Populist, Progressive, and New Deal heroes who sought to bring corporations to heel.
The postwar era, in Mr. Sitaraman’s telling, resembled a golden age. Operating under a broad New Deal consensus, the country experienced a “great compression” of incomes and wealth. The economic model of that era was embodied in the “Treaty of Detroit” between the auto makers and their unions, which guaranteed middle-class incomes and job security for millions of workers and their families.
All that ended in the 1970s. Mr. Sitaraman paints a grim picture of rising inequality, a devastated middle class and a political system that “is best characterized no longer as majority rule but as rule by economic elites.” Think tanks and politicians do the elites’ bidding. Lavishly funded legal organizations, including the Federalist Society and my “powerhouse” institution, the Antonin Scalia Law School, promote a libertarian “Constitution in Exile.” Corporations have hijacked the First Amendment and “captured” the courts.
Mr. Sitaraman complements this lamentably polemical account with a list of familiar and ill-conceived reform ideas. We should revitalize antitrust law to break up big firms; subject more industries (especially internet providers) to regulation; promote pro-union arrangements to create “industrial democracy”; impose much higher tax rates on the wealthy; and (of course) overrule Citizens United and block corporate campaign contributions. Those reforms, he says, would help “rebuild the middle class” and “bring economic power and political power back into realignment.” In a word, no.
Progressivist bromides are no substitute for the missing examination of “middle-class constitutionalism’s” harder questions. For example, Mr. Sitaraman’s Populist, Progressive and New Deal heroes all had a dim view of the written Constitution. Barack Obama —a self-declared heir to those traditions—was not terribly fond of constitutional formalities either: Confronted with an uncooperative Congress, he governed by edict. The dynamics between “middle-class” orientations and constitutionalism are more complex than Mr. Sitaraman suggests.
Similarly, the author is silent on the less appealing aspects of the “great compression” and on the reasons for its demise. Draconian limits on immigration and trade barriers permitted the Treaty of Detroit partners to turn perfectly fine car companies into pension funds that produced clunkers on the side. Some politicians and pundits now advocate a return to immigration and import quotas. If they win the argument, we should indeed start to worry seriously about the middle class—and the Constitution.
Our minimalist Constitution, Chief Justice John Marshall wrote, is intended “to be adapted to the various crises of human affairs.” It may be more resilient to plutocratic tendencies, and more open to meaningful political responses, than Mr. Sitaraman suspects. That said, his book provides a much-needed reminder: For all our legendary good luck, nothing ordains that all our constitutional stories will have a happy ending.
Mr. Greve is a professor at the Antonin Scalia Law School and author of “The Upside-Down Constitution.”
