Journal of Law and Political Economy

This essay appraises Joseph Fishkin and William Forbath’s The Anti-Oligarchy Constitution (2022). The book proposes that an examination of American history since the founding of the republic discloses a polity that, at least incipiently and thereafter occasionally explicitly, promised its members lives of material well-being sufficient to their responsibilities as citizens of a republic. The authors argue that this promise, which they dub “democracy-of-opportunity,” was honed in battle down the years with champions of “oligarchy and exclusion” for mastery of the instrumentalities of “constitutional political economy.” They affirm the constitutive capacities of constitutionalism as a progressive fighting faith that can revive democracy-of-opportunity in the twenty-first century. This essay sympathizes with the authors’ broad objectives, but does not agree with their arguments. It argues that the lesson LPE scholars should take from this critical encounter is that the law of the current conjuncture cannot reconstruct that conjuncture’s economic foundations.