WASHINGTON — You cannot talk for very long to a conservative these days without hearing the words "constitutional" and "constitutionalist."
Formulations such as "I am a constitutional conservative" or "I am a constitutionalist" are Tea Party habits, but they are not confined to its ranks. Many kinds of conservatives contend that everything they believe is thoroughly consistent with the views and intentions of our 18th-century Founders.
Wielding pocket-sized copies of the Constitution, they like to cite it to settle political disputes. However, because the Constitution was written primarily as a foundation for government, it can answer only so many questions.
David Strauss of the University of Chicago Law School authored a book called "The Living Constitution" to make plain that there is a lot more to this concept than its detractors suggest. He notes that "a great part of the framers' genius lay exactly in their ability to leave provisions general when they should be left general, so as not to undermine the document's ability to serve as common ground."
The problem with "originalists," Strauss says, is that they "take general provisions and make them specific," even when they're not. One might add that the originalists' versions of specificity often seem to overlap with their political preferences.
In the May issue of the Boston University Law Review, Joseph R. Fishkin and William E. Forbath of the University of Texas Law School show that at key turning points in our history (the Jacksonian era, the Populist and Progressive moments, and the New Deal), opponents of rising inequality made strong arguments "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."
Guarding against oligarchy
Their article is called "The Anti-Oligarchy Constitution," though Forbath told me that he and Fishkin may give the book they're writing on the topic the more upbeat title "The Constitution of Opportunity." Their view is that by empowering the wealthy in our political system, Supreme Court decisions such as Citizens United directly contradict the Constitution's central commitment to shared self-rule.
"Extreme concentrations of economic and political power undermine equal opportunity and equal citizenship," they write. "In this way, oligarchy is incompatible with, and a threat to, the American constitutional scheme."
The authors remind us of Franklin Roosevelt's warning that "the inevitable consequence" of placing "economic and financial control in the hands of the few" would be "the destruction of the base of our form of government." And writing during the Gilded Age, a time like ours in many ways, the journalist James F. Hudson argued that "imbedded" in the Constitution is "the principle" mandating "the widest distribution among the people, not only of political power, but of the advantages of wealth, education and social influence."
Robust middle class
The idea of a Constitution of Opportunity is both refreshing and relevant. For too long, progressives have allowed conservatives to monopolize claims of fealty to our unifying national document. In fact, those who would battle rising economic inequalities to create a robust middle class should insist that it's they who are most loyal to the Constitution's core purpose. Broadly shared well-being is essential to the framers' promise that "We the people" will be the stewards of our government.