Their usurpers became the orbiters of conservatism. Even now, 50, 60 years on, we liberals and progressives have a hard time with the idea of returning to our fore bears at the political branches and people themselves should have the last word on what our constitutional principles mean. And thats especially poignant because when it comes to political economy, the conservative tradition, antiredistributive, antiregulatory is one courts can take up as the court has shown because it often involves striking things down. But the progressive tradition i just sketched is one that takes legislative work. And administrative work. And the courts role is often simply to stay out of the way. Bless you. And that may require taking seriously the idea that the legislation at hand, the redistributive legislation that progressives aim to push through congress, is not just Economic Policy but Economic Policy with a constitutional purpose and constitutional principles driving it. So that now that the Roberts Court is acting like a new lockner court, eviscerating measures like Medicaid Expansion and Campaign Finance laws, with student Debt Forgiveness in the federal courts cross hairs and a court thats likely to strike down labor laws should they emerge like the one the house passed last year which proect techs broad strikes and union organizers. And how are liberals and progressive responding . How are we going to respond . For over half a century our response to such constitutional claims when they came if the constitution in exile on the fringes maps on to how so far we seem mostly to be responding to these arguments that are coming from a rightwing majority on the court. Namely, youre wrong. The constitution doesnt forbid, it permits. These forms of redistribution and regulation. We say the constitution is silent about the distribution of wealth and economic power. But as ive sketched, that has not historically been the way progressives and liberal responded. They didnt say the constitution only allows, they said the constitution requires such measures. They said that congress and others have a constitutional duty to enact and implement measures. To build and maintain the kind of political economy, right, that can undergird a democratic republic. Let me wrap up. One High Water Mark of this tradition was reconstruction. The framers of those amendments, right, held that congress had a duty to enact laws that protected the exslaves new civil and Political Rights but also a duty to provide land and, to break up the old slaveholding oligarchy, to provide a social base for the exslaves standing as citizens. So the idea was, it wasnt enough as conservatives today imagine, to enact a color blind principle of racial nondiscrimination. What was needed on their account and impelled by their constitutional life was an upending of the whole southern plantation oligarchy system. Its that outlook that distills antioligarchy abroad, wide open middle class and Racial Inclusion that we say is at the heart of the tradition weve reconstructed. I could go on if we had world enough and time to show how again and again, through the new deal, lawmakers in this ethos and spirit would say, we are not simply doing this because right now the constitution allows it. Again and again in ways we have quite forgotten, they said were wise to do these things. This is what the constitution demands of the government and of the legislature and administration in particular. So what part of as joey said what we hope to rekindle today is what those languages and arguments sound and feel like in this register that i can assure you, one of the richest illustrations of the kind of argumentation, benkle rervetion pointed us to years ago, in respect of homesteads. Sort of a great reconstruction congressman and homestead advocate saying, we, lawmakers, having have a duty to enact laws that put land under the feet of landless citizens. In order to underpin their citizenship. So this goes on and on and and the question now is what would it take to rekindle it . Is it a good idea . As i have made clear, joe and i think it is a good idea. Ill note that many, many of our comrades on the left, including ryan dorfler, one of the most elegant critic os of this idea, is here. So well hear from those who think it may not be such a good idea but i hope ive told you enough to at least get the conversation started. Thank you very much. [applause] thank you so much, willy, for a great beginning. Im not doing introductions of these panelists because it goes without saying none of them need an introduction. If you want more, you can use the information, you can find online biographies and so forth. It would take us an entire day to go through all the various accomplishments. Were not going to do that. Instead well turn it tore michael i thought it was going through. Its ok. Thank you. Can you hear me ok . Thank you for allowing me to take part in this conference. Thank you to willie for writing his book which we could talk about for a long, long time. I was talking to e. J. Before, i think were the only two nonlawyers on the panel today. So while my allotted 10 minutes or so may come off as ignorant or obvious to those who know con law better than i do, but the questions that came from reading their book and the overall premise of the conference, i think willie stated it very well. What will it take to bring this perspective back to american law and american politics. The question i want to raise is, how have americans on the broad left for whom we now use the spongy term progressive, participated in changing how the constitution is interpreted, and was interpreted, to advance a more egalitarian and democratic economy, one that can get us closer to a true definition of true equality. What will it take to rekind until tradition as willie mentioned at the end of his remarks. Interesting review of their book in the journal of democracy, mark gleyber, who argued only congress can employ, quote, its tawtionally mandated duties to reate a democratic motivated economy with parties in control of the national government. That control only happen, i would argue, in social movements exist at a Strong Enough and follow a prudent enough strategy to put pressure on elected officials and work with them to advance legislative desires. Only those circumstances can elected officials win the Popular Support to appoint judges, friendly to their point of view or able to make it difficult to have judges. Progressives have used the constitution to create a more egalitarian policy in certain circumstances. I want to talk about three of them. Willie touched on all of them already. I want to revisit them in a somewhat different way only three times in u. S. History has one Political Party been dominant in Political Party and american politics. It was led by progressive, liberals, leftists at times who initiated legislation to further Economic Opportunity and justice. And this was always, all three instances, environments shaped by social movements on the left. The first is reconstruction. 1864 election, the Democratic Party campaigned on the slogan, the constitution as it is, the union as it was. To which one democrat added, and nwords where they are. Fortunately lincoln won that election and after his assassination, democrats in congress defeated his successors plan to let the south back into the union then Congress Passed the 14th and 15th amendments and sent them on to the states for ratification. But the movement for Racial Justice shrank rapidly as reconstruction came under attack and became unpopular and federal courts turned against antiracist legislation. That was aimed to build on those amendments. When congress debated the 1875 Civil Rights Act it was in the wake of the democrats taking control in the house for the First Time Since the civil war. The wake court with a majority of republican appointees struck the law down and demonstrated without a powerful and enduring Antiracist Movement the beliefs and practices of social inequality would endure whatever the constitutional arguments. Therefore to the new deal. The second time when progressives, you know, had a leg up on their opponents political and constitutionally. As you know the court in 1937, in joans v. Lockland, in effect reversed its ruling at least in terms of labor. They rules the n. R. A. Unconstitutional together with section 7a which protected union organizers. In jones v. Lockland they upheld the Labor Relations act, still the guiding legislation in labor law today. Im sure the creative arguments that senator wagner and his team of attorneys made about how to interpret the Commerce Clause had something to do with persuading chief Justice Hughes to change his mind and write the majority opinion. Theres a wonderful bit about this, but what if f. D. R. Had not won a land slied, what if Union Membership were not surging with workers in the autoplant in flint, michigan, at the time the decision came down from the court in february, 1937 . Hughes himself argued and this is a quote from their book, the Economic Impact of a strike at jones and lackland would be, quote, immediate and might be cat stosk. The contrast is a victory for Economic Opportunity. With labors failure in the previous era to ward off prosecutions under antitrust legislation. And uphold laws on marriage in the case. Congress itself was about constitutional interpretation more than any of the leaders of labor in the 19 30s and he argued his case often with people on the right. But he lost, he lost, i think, because it was not large enough or Strong Enough to press politicians or convince judges to agree with their arguments. At the time the union that was organizing work for jones and lockland later in the 19 30s was much too weak in the era to win recognition antisteel plant at the time. Finally theres example of how the warren court broke the pow over states rights in the 19 50s, 1960s and early 1970s. What can explain the rulings for that, to loving v. Virginia, without the transformation of white Public Opinion about race beginning in world war ii and continuing over the next two decades. If liberal republicans like warren hadnt supported striking down legalized racism the considerate would have been far more divided on cases of that era. Im not arguing that judges should follow election results. Sound and create v constitutional argues must be made to win the day. But how those arguments emerge and triumph depends largely on the composition and relative power of social and political forces. Finally what is the place of constitutional argument in our Politics Today . Can we engag ordinary people with those arguments . Or is constitutional political economy just a matter for academics, politicians and attorneys to discuss among themselves in forums like this one . Alas for me the answer to that question, at least right now is a qualified no. Few americans outside the ranks of law schools, offices and courts know much about the constitution. I teach a class on voting and elections at georgetown to very smart, pretty wellinformed undergraduates. And every time i teach it i get the question, why the hell cant we abolish the senate . Or at least elect senators by population, wouldnt that be reasonable . Clearly no one ever told them about the final clause in article 5. They built a large opposition move to opposition to roe v. Wade and plessy. Whats important for progressives to accomplish a similar breakthrough in the cause of Economic Opportunity. With a farreaching and easily understood decision to oppose, not surprisingly, the on stoition roe v. Wade, the opposition to plessy of course there was a Positive Side to that in boast cases. They found an important ruling that they could build a movement to oppose. So whats going to be the decision by the Roberts Court which were going to build that movement on . I dont know what it is yet but i think therell probably have to be one. My point is really quite simple. To change how the courts interpret the constitution we will first have to change the minds of enough americans who can mobilize to pressure the courts to change. Thank you. [applause] i do want to say i think probably even a lot of lawyers done know about the final clause of article 5, they take it on a given that its in the constitution and they dont know that you cant amend that part of the constitution. It is kind of shocking to find out. So with that, i think it would be great for you to pick up on this theme of popular movements and how it affect ours constitutional understanding. Thanks, carlene. Thanks for having me here. Thank you, joey and willie for writing this book. Thank you more importantly for continuing in the project. But this book that this book is motivated by. I want to start by my account of the constitution. My account of the constitution as originally formulated by an ol garric oligarchic, antidemocratic government. The reason i say that is it rose out of conservative reaction to what was going on in the 17 80s. What was going on in the 17 80s is a movement and push for redistribution that was made by the many poor american who found themselves in debt after the american revolutionnary war. And that movement led to such rebellions as happened in massachusetts, the shaes rebellion. It led to pushes by those who were indebted folks to their government to engage in different types of policies such as paper money policies that would diminish the value of credit and reduce the cost of debt. It was a movement to create a more level playing feel for those who were in a sense left out of the Economic Opportunities set forth after the revolution. And i think that once we recognize that, we recognize that part of the project that the court is engaged in is one of reconstructing that conservative ol gar kick oligarchic antidemocratic constitution. If were going to have a step forward we need to recognize a focus, recognize that reality and try to shift the focus toward what i think was a truly antioligarchic democratic moment, the reconstruction era. That was a moment after the civil war of course in which there was a program to produce and advance the tawes of Racial Justice after many centuries of slavery in this country. But it was not only a Racial Justice project. It was an Economic Justice project as well. And that Racial Justice and Economic Justice project had a constituency. That constituency were those africanamericans who were formerly enslaved that we know about. Its also a constituency of white americans in the south seeking opportunity as well. Many of whom were poor and also many of them who didnt live in the south as well. I think that once we recognize this new Framing Movement and sort of focus on this constitutional moment as being the constitutional moment that is entitled to our attention, we can start to push this idea of antioligarchic constitution in a way thats consistent with the Historic Development of our constitution. What we learned in terms of the pushback against the antioligarchic original constitution is the movement in the recon instruction era was an important part of it but what occurred before that was also important. This occurred in the states, where there were movements by people to demock rahtize their state governments and democratize elections to make opportunities for people to make claims on Economic Justice. That was the genesis and found fairgs the reconstruction, reconstruction of republican government. Republican government as not simply a means by which the wealthy and elite would control power but a means by which the economic downtrodden would also have a say and a voice in our development of policies and laws. Now, once we recognize the importance of constituencies, we can start to fast forward to what made the new deal effective. The new deal was effective because of what occurred in terms of economic collapse after the stock market collapse and the economic pain that Many Americans were suffering thru at the time. What that resulted in was a natural constituency for movement for Progressive Political economy. Many americans were poor. Many americans were suffering. Many americans were making demands on their legislators, both in the federal government and state government, to provide some form of relief. And that relief came in the form of quite Progressive Political economy poll icies in the new deal era. Social Security Administration perhaps being the key policy but also a host of programs that were designed to get americans back to work, produce Economic Opportunity, and to advance this redistributive idea of government role. Now i want to sort of glor i dont want to sort of glorify this moment too much, because it was a Discriminatory Movement as africanamericans were left out of programs that were designed to advance the opportunity or downtrodden white folks. Nonetheless it was an important moment in rethinking the role of government, rethinking government as a means of redistribution. We saw the remnants of that play forth in the war on poverty. The remnants of that brought about by the fact that many of these new deal constituents were still alive and around and still believed in this role of government as to advance the redistributive political economy led to the war on poverty that involved the establishment and passage of laws such as medicare and other programs that are designed, again, to put the government in the role of redistributing resources from the wealthy to theless well off. But the problem with this particular program was that it didnt build the constituency for it. The war on poverty was motivated, the story is told, by john f. Kennedys trip to appalachia and seeing the other america. Seeing the poverty that existed around us. And that moral sense that we need to do something about it. And then theres lyndon bainesjohnson who grew up in west texas, not particularly well off and awz able to empathize with those downtrodden. That led to the passage of laws at a moment in which we had this idealistic notion of the role of government. There were attempts to build a constituency so it would be sustainable. There was the Community Action programs that were created in the war on poverty that was designed to allow members of the community to engage in antipoverty projects and create Economic Opportunities in their communities. The idea being that these folks who are working on antipoverty measures would be the future of supporters of future antipoverty redistributive measures. There was also Martin Luther kings Poor Peoples Movement he advanced and pushed toward his toward the end of his life. This could have been a tool to create a redistributive notion of the role of government. Ultimately these movements failed for a variety of reasons i went go into now but what we were left with was a conservative backlash against redistributive political economy that contributed backlash not only involved legislators in a neoliberal project that was antiredistributive but also in a court that would not recognize any sort of economic claims. And i think that one of the things that, thinking about Going Forward is how do you sort of build that movement . I think that the project of constitutionalizing or thinking about these things in constitutional terms can be an important motivating tool. But i dont think thats the whole game. I think that the mobilization push is going to be critical. Bringing these elite notion of political economies down to the people is going to be a critical part of the project. Has to be a critical part of the project. One of the things we can learn from the conservative counterparts is they have done some of that work. Its not simply Federalist Society talking at the elite level. Its connecting with the tea party. Folks on the ground. Something i talked to about with someone before coming up here. That mobilization that have of that Grassroots Movement that is working against the interests of many of those that are part of the movement has been quite successful in halting Progressive Political economy movement. So how do we rethink things . How do we think about things Going Forward . I think there are two major obstacles right now to any sort of Progressive Political economy from a mobilization perspective. The first obstacle has to do with the racial divisions. That exist. Especially when it comes to Economic Justice, one of the things that has been so successful in maintaining oligarchies worldwide is dwidding those lower income and working class individuals according to some basis. In america that basis is race. And those racial divisions that arise from the notion that identity politics and advancing the causes of Racial Justice are against the interests of those who are lower income white folks in a sense that those folks are being left behind and we need to make America Great again. Nostalgia i think about the past of white glory. Thats part of the racial divisions that act as a major obstacle to mobilization around redistributive political economy. The second obstacle is that we have a complete disconnect between the elite and the poor and the parties are perhaps the best agents of social movements right now. What we are seeing is they are not making those connections with those who are least amongst us. What we see consistently and persistently is a gap in terms of who Political Parties contact who they engage in political campaigns and who are part of a process of democratization. Its not a democracy for all of us, it seems to be a democracy for the middle class and wealthy. The poor and less well off will be ripe for recruitment by antidemocratic, antiredistributive forces. To think about constitutionalizing political economy, we need to think about engaging how to engage and bring those least amongst us into this. [applause] i want to turn to savile next becausic you brought up several things savile will touch on. Thank you for that. Its a treat to come in on willie and joeys book, i feel like ive been learning from the book in the whole course of its creation. Very early on, one of the first panels i started i did when i first started teaching was when this book was just a germ. So i say thanks to them. And i should say im here in my personal capacity not speaking on behalf of where i work. Let me pick up on a couple of threads that everyone has laid out so wonderfully. First a little bit about what the kind of moral force of a constitutional, or bringing the concept of constitutional in my due. Second a little bit more about what the theory of change is here we could imagine when we knit together the movement and building policy and a little by about how ideas operate in the world. First on what we mean by constitutional. I. This may be more of a stretch than willie and joey want to make with the concept but in some ways i feel like the force of the argument doesnt necessarily depend much on the paper constitution at all. But its really about the highest moral stakes of the conversation that were trying to have about literally who and what constitutes this country. Who is a part of the polity. What are they owed, are we owed, as being part of that polity . And what are the teugs we are institutions we are literally construct, build, creating, or deconstructing to make possible the idea of inclusion and membership. This challenges part of what you were say, the institutions we have are not always motivated by that ethos but the different institutions over time, the reconstruction, the new deal, the second reconstruction of the civil rights era, are about an attempt to constitute a different democracy. I think thats helpful to sort of see, excuse me, the questions about how to use the arguments in court, say, as a subset, i think of questions the book is prompting us to think about. How do we make real those aspirations for an inclusive democracy. Let me say a little bit about institutional change. I want to continue with some historic examples. One is, if we think back to sort of the early new deal an even before in the progressive era, one thing ive always been fascinated by is the kind of late 19th century battles over public utility, monopoly and the early rise of the Administrative State. Lots of amazing folks in this room and in our larger ecosystem has been writing about. This but i think its notable that we have this sort of hayday of laissezfaire political economy there are all these early battles at the state and local level as you were saying, and driven by social movements, to your point, michael, that are about wresting back control over those basic necessities on which everyone depends. So you see all these fights over gas works. Electric utilities. Water. Its nuts and bolts stuff but its actually those instances where individuals and communities are experiencing that reality of domination of arbitrary power, that they now depend on these services that are run by private companies, that are not accountable to the public and not obligated to provide those services freely and openly to all who need them. And out of that emerges a bunch of new policies, a bunch of new institutions. Thats why we have Public Utilities at the state and local level. Thats how they cut their teeth literally as early stage bureaucrats in the state level from which they then learn and help inform what comes later in the new deal. I think its an interesting story about localism, experimentation, movements and the interaction between ideas and institutions that emerge. A couple of other quick ones, fast forward then to the civil rights era, another example that i love is thinking about the early days of the implementation of medicare. So after the Civil Rights Act was passed and medicare was put in place, it was not obvious that it would be implemented in a racially nondiscriminatory way. That was a fight. It was a fight that played out in through this interaction between movements and the Administrative State. You had the naacp, different sort of leading civil rights figures and organizations, pushing far more way toimplement the policy and you had a parallel fight within what was then the department of health, education and welfare to try to think through what that would men. The end result was decision to actually take on board title vi of the Civil Rights Act and incorporate it into the poll sois they have department to say that we are actually, it is actually in fact part of our job as h. E. W. To enforce civil rights through the funding streams and the way we monitor hospitals to make sure theyre not operating in a racially discriminatory way. But that was a choice that had to be made and it was contested. It was contested under conditions of pressure from social movements. So i think its another kind of pris tallization of what were talking about on the panel. To me the payoff then is when were thinking about how ideas like those trace through willie and joeys book become real, its about this interaction in my mind, between the ideas themselves, like what is a moral goal were trying to achieve, the organizations, movement organization, Civil Society organizations that incubate, exanl and advocate for those ideas, and the institutions in which those ideas become established and substantiated. You need all those things for the end result to be felt in the world the way we want you remove one of those three and it doesnt quite jell or doesnt quite stick. Thats when we talk about series of change thats a lot of what we are struggling with here. Let me say a couple of last quick words. We want to get to the discussion and about what this means in term of the Administrative State. We have an idea, we have a bureaucracy that exists that executes a lot of these functions. And i think its worthying through the constitutional, Political Economic stakes of debate over administrative policy. So when we have privatization of state and local function, for example, or the rise of administrative burdens that might make it harder for individuals to access critical services, safety net programs. Or if we think in sort of the criminal law or immigration, the unchecked power of agencies. These are all instances in which the operation of the daytoday operation of bureaucratic institutions have to have a higher Political Economic stakes. Conversely, if were trying to make that inclusionary democratic ideal real, i think that means we need to think about what are the new institutions that need to be created, right. D. O. J. Comes out of reconstruction in a lot of ways. Out of the weight crisis came a bunch of other new administrative institutions. So what is the sort of state build, Institution Building project to which this enterprise corresponds. By way of closing ill say i think these conversations are why we want to see more of. Were knitting together communities and practitioners across academia, policy, law, organizing and so appreciate the organizing attempts thanks to that we all get to be in this conversation together. Thank you, sabeel. Made me think about how the department of Homeland Security came about after 9 11. Sort of what can happen in the other direction. So e. J. Theres a lot to talk about here. And i know you have a lot of comments about the book and how we should respond to it. Thank you so much. I want to thank the society. And never has its work been more sornt important so thank you for being there and doing that work. Secondly i want to acknowledge a very old friendship which is with the gentleman to my right. Only in terms of location on this platforming aye not making a political platform, im not making a political comment there. One of the few advantages to growing old is to have old friends. Willie has been teaching me stuff for 50 years. Its a real blessing. I really wish i didnt have to say this, this book is extraordinarily important and relevant to the crisis of our time. I wish i didnt have to say it. Because i wish we didnt have the crisis that it addresses. But i have to say that i was deeply excited by this book, not just because willie is a coauthor, but because i think it answers some real problems we have. When i was looking at the form we had to sign to, when you come in here, its a 501c3 and theres a sentence in here that says please refrain from express anything views this cowl reasonably interpreted as endorsing any candidate or party in an election. So i would like to shout out republicanappointed judges such as stevens and souter and brennan and warren. I shout those out to underscore how radical the situation we confront is because these republican judges did not try to push our nation in the direction that we are being pushed in now. They did not try to undercut all the new deal every remark postnew deal jurisprudence accomplished. They did not try to bring us back to a socalled constitution in exile. So i was excited by this book because i think that those of us who believe in a by the way, i also want to shout out, i think he left for the moment but ganesh was in the audience, edge his book, the crisis of the middle class constitution is a brotherly or sisterly book to this one. I would like to think were at the beginning of a movement. Remember when the Federalist Society was founded, what was the early history of that . Maybe this meeting will be the early history of what happens this gathering will be the early history of what happens next. But the think about what we are confronting now. The Dobbs Decision obviously created a democratic discussion around constitutional decisions like we have never seen before and has not been the case for the entire period since the warren court that when voters said they were concerned about the courts or concerned about Court Decisions they were not voting for the more conservative party. They were voting for the more progressive party. But this is only one of a long list of decisions the courts have made that i think can fairly be seen as dedemocratizing or antidemocratizing decisions on voting rights, gerrymandering, labor law, finance firearms regulation, and of course quite directly to the title of the book, on Campaign Finance regular lition. And in many of these decisions, conservative justices have overturned understandings that were 30 to a century old. Campaign finance reform is a good example of a set of understanding of what government could do to ensure a more democratic republic that go back to the progressive era. So thats what theyre confronting now. I am not up as a constitutional lawyer or a historian. But i do write a lot of columns. I suppose my conservative friends would say i pretend to be a constitutional lawyer or at least a lawyer in many of my columns because this is an issue that i have been deeply concerned about for a very long time. The rise of conservative judicial activism. Notice that phrase by the way. Judicial activism. Until, oh, about five years ago, that was the attack that conservatives leveled against liberals. We are against judicial activism. Suddenly, im hearing fewer arguments about judicial activism from the right and more fundamental arguments about how we have to undo a whole series of Court Decisions from the past. Why i think this book is so important is precisely because of what mike said about the importance of social movements, which is i think it is deeply important now to link smalld Democratic Politics to our arguments over the judiciary. It is at the risk of paraphrasing richard nixon, more important now than ever, do what joey and willie prescribe in this book. As somebody who tries to make arguments about what is flued flawed about this new round of conservative jurisprudence, i think their argument that constitutional. I has been part of the american political argument from the beginning of the republic is deeply important. Just a couple of exciting moments in the book early on when i was reading, an americans making argues in what they call the dmok i have so opportunity tradition, through most of American History did in the view their constitutional arguments or for their matter those of their opponent as outside constraints on Democratic Politics. Instead they were the sub stns of democratic constitutional politics. They saw the political branches, that the political branches were crucial for in which constitutional conflicts and deliberations unfolded. Far from being conversation stoppers, constitutional claims were central to Great National political debates. Thats where we are now. And if the Supreme Court is going to set itself up as a body which can stop democratization, can stop the decisions made by the democratic branches, with no accountability, we are giving it power that in our history we never did. And willie is absolutely right that liberals got themselves out of the argument because they trusted the courts. For a listening time. Were happy with the results. And sort of lost track of the tradition that joey and willie try to bring back. Two points ill make in closing. First, i am very happy that he raised the issue he is did. Theres been an argument among progressives going way back about whether the constitution itself is dmokrytizing or antidmokrytizing or antidemocratizin. I appreciate the distinction you made between the constitution as amenned in the second founding versus the constitution we had in the first place. And i think the importance of your point is underscored by what conservative justices have been appealing to of late. Talk about not appealing to the language of the constitution. They have started using the terms quite promiscuously, history and tradition in making decisions. And somehow the history they appeal to and the tradition they appeal to somehow goes all the way back to before the civil war amendment. Somehow kind of writes them out or blurs them and i think thats very important. But one of the questions i would love willy to confront is about the constitution itself. A great lawyer at u. T. With willie wrote a book called our undemocratic constitution, i want you to engage that. I think the constitution has, if you will, corrected by the civil war amendment, is a more democratic document but i think its still a fundamental debate. Last point i want to make. I said im in the middle of these argues. About the court. And theres sort of two broad arguments liberals have relied on. One is the living constitution that worked for a long time and there have been some great cases made for the living constitution. David strauss at the university of Chicago Law School wrote a great book on the living constitution. But ive always thought as somebody in the field of making arguments that it didnt stand up very strongly against originalism. Now its delight to feel see originalism come under scrutiny in a way, i dont think its come under for a long time. And somehow about 80 of the time it leads to the results that youd think the people using that term would reach where they had the original whether they had the originalist theory or not. But i dont think the originalist constitution in the sphere of Public Opinion ever fully answered the argument. It made it easy for them to say, you guys are just making stuff up and calling thit eliving constitution. I think the view that joey and willie advance actually is a stronger argument that this constitution is designed to create a democratic republic and a democratic republic has certain requirements when it comes to the kind of society that undergird it. Then the other is, the new deal settlement which we were quite happy with in terms of results. But i dont think had the strong undergirding of a theory of democracy and what it requires. When many of you know that one of the pushbacks always against progressives who talk about democracy is the old line, i think it may go back to the John Birch Society but may predate that, were a republic not a democracy, they say. Actually, our answer to that is we are a democratic republic, or at least aspire to be one. A democratic republic does require a sufficiently democratic economy to support it. The constitution begins with the words, we the people. The preamble imagines an active government that is responsive to the interest of the people, including the yen welfare, i love to tell conservative friends the word welfare is right there in the first paragraph of the constitution of the united states. Including the general welfare. I think joey and willie have outlined an argument that we need to build the social movements that michael talked about to defend the rulings, to defend the role of an Administrative State designed to secure the public interests and to fight the injustices. Historic injustices we are still trying to overcome. So i thank you and i hope you begin a movement with this book. [applause] you gave us a lot to think about. You talk about history and tradition, i think it goes become to the 13th century. There are some pitches in there, i think some witches in there, i think. Yes. I would also say your fellow columnist at the washington post, george will, gave up a fierce callout to judicial activism just a few years ago. I think as soon as he saw where the he was intellectually honest in saying no, we should not be as conservatives against judicial activism. He was the first one who was honest like that. Who said, hey, lets be activists because lets get what we want finally. And the other thing that sort of lead into a general question and maybe start with willie because i think e. J. Kind of threw out a challenge for you to respond to the idea that its not an antioligarchy constitution, its an oligarchy constitution, right . Who founded this constitution. I want to go back to the judges, the republicanappointed judges and say at best they were certainly open to the idea of regulation of the economy. But they wouldnt claim there was a duty either by congress, that there was an antioligarchy impetus for legislative action. So is there or is there not antiol gar kick push in our constitution . How do you challenge, willie, the idea that its an oligarchy constitution . Ok, first, thank you to one and all. Then let me plunge into, let the wild rumpus begin. The way we take on bertrals point is this. Bertral is absolutely right. The most sort of radical and democratic elements in the constitutional poll thoisks revolutionary era were at the state level and the gentlemen who gathered in philadelphia gathered in significant part for many reasons. But one of them was surely as they put it, to subdue the states because they were too democratical, as they put it. And the story we tell which draws on a wealth of constitutional, historical work all around us, is that that impetus, at first found expression as resistance to the constitution, and it was brought forward for ratification. The antifederalists, those who opposed the new constitution, were the antioligarchs in their discourse and their framing of the question. And what happened almost immediately when the handywork was ratified, the arguments that were the most robustly democratic work a small d, an antioligarchic, became part of our constitutional politics. The tradition that were reconstructing is one that takes on board that moment when, right, the most sort of oligarchic aspect of the constitution, and bear in mind that what hamilton an others had in mind would have been vastly more oligarchical had it not been the case that the gentlemen of philadelphia said no, the people wont accept that. We wont enact what we want if we go full bore oligarchic in the ways we want. Or as they saw it, a more elite republic a republic in which traditions ruled. They had many provisions. Hamilton was a past master at conjuring up a truly oligarchic constitution. They tempered it. But nevertheless, it was a document that could have been, right, used to build a very highly centralized, very elite republic, but what emerged swiftly were movements to grab hold of the antioligarchic aspects of the politics of the revolution and bring them into our constitutional policies and create our first mass party. The Democratic Party was created to save the republic from the oligarchic projects as they saw it, right, and obviously we progressives have good things to say about hamilton even before linmanuel, but the point was that antioligarchy entered our constitutional tradition and history as a rival interpretation of the constitution itself, one that left more space for more decentralized political economy because that was willynilly part of or constitutional politics and part of what was being argued about. So yes, we can take on board bertrals points about the ways in which the constitution was framed to subdue the most democratic aspects of our revolutionary politics but we would push back any proposition that it was so rijt rigidly, right, confined that it didnt immediately open up to interpretations that were small to be more democratic than the gentleman who philadelphia would have preferred and some of those gentlemen became leaders of a democratic opposition as they put it. That was still a bunch of slave holders. Which is why the second founding plays the role it does in our book. The only other thing ill say and then ill sort of return it the floor to caroline and you all is that, make no mistake. Joey and i are not chiefly about making arguments to the court. This is partly in response to mikes points. Were not waiting for the day when the court will welcome the arguments on offer here. We see these arguments as ones not just to make in congress but ones to make in service of attacking the court, taking power away from the courts. So that we see a long tradition of, lets abolish the senate. Lets reform the senate. Lets take judicial review away if ethis court. Lets take bits of judicial away from the court. Lets pack the court, lets shrink the court. What struck joey and me is that this kind of hardball politics against the courts power and its doctrines was again and again, no matter how radical the claims, framed as, lets, right, lets bring back the most radical but robust elements of our constitutional tradition. Even if that requires taking power away from the court or changing the senate. So that were saying this tradition is, right, capacious enough and rich enough and substantive enough to animate the most deep Structural Reforms our polity can require but if we just say lets ignore the court, lets ignore the constitution, lets you leave on the table, right, arguments that might bring on board more of the American Public for deep, structural changes that otherwise seemed scary and right, motivated by simple tit for tat politics. Thank you. Im sadry very conscious of the fact that we only have about a halfhour left. I want to ask one question of the panel and then engage, im sure there are questions out there. If we are looking ahead and we as progressives or liberals of whatever is the term we want to use these days, wan to actually make arguments about a progressive or about a constitutional political economy, what are the areas we should focus on . Should we focus on health care . On education . Or maybe take on competition itself . The whole idea of oligarchy and mo nply directly, what are the issues we should engage and how should we do that . Ill start sense im on the end and go that way. A couple of things in response to willys point
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