This is Democracy – Episode 187: Anti-Oligarchy Constitution

This is Democracy, a podcast about the people of the United States, a podcast about citizenship, about engaging with politics and the world around you. A podcast about educating yourself on today’s important issues and how to have a voice in what happens next. Welcome to our new episode of this is democracy.

This week’s episode is going to focus on one of the core questions of democracy. A question we revisit, it seems with every generation, which is the role of equality and the role of efforts to limit unfair and excessive allocations of resources and concentrations of those resources. What is the role of our democracy and preserving equality?

Limiting oligarchs. And ensuring opportunity for citizens and in particular for today’s discussion, what is the role of the politics of law? And by the politics of law, we mean the discussions that debates over the meaning of law, how do those debates overlap with our questions of economic justice, equality opportunity.

Anti oligarchy. Uh, we’re joined today by two distinguished scholars and public intellectuals who have written an absolutely fantastic book. It’s a very thick book. It was a little heavy for me to carry it on the plane where I was reading it, uh, this weekend. But it’s, it’s a wonderful book, uh, that really addresses these questions in an interview.

Thoughtful rigorous, rigorous, and really quite persuasive way. Um, the title of the book is the anti oligarchic constitution, wonderful title. And the authors are Joseph Fishkin and Willie for bath. Uh, Joseph Fishkin is a professor of law at UC. Where he teaches and writes about employment discrimination, law, election law, constitutional law, education law, fair housing, law, poverty, and inequality, and distributive justice.

Uh, so Joel, you don’t really cover much at all. You’re pretty narrow aren’t you? Before joining the UCLA faculty, he taught at the university of Texas school of law here in Austin. And he’s the author of numerous articles and other books, including bottlenecks, a new theory of equal opportunity, uh, which won a number of book awards.

Uh, the second author and our additional guest is William Forbath. Uh, he holds the Lloyd Benson. Uh, at the UT law school, and he’s also the associate Dean of research at the UT law school. Uh, he’s a distinguished, a historian of labor and law and related topics. He’s the author of law and the shaping of the American labor movement, uh, which is a book that influenced me quite a lot when I read it years ago.

Um, he is of course, a coauthor of this new book, the anti oligarchic constitution. He’s written dozens of articles, book chapters, and he’s completing another book that we’ll have him on to talk about in the future book that is. As interesting as this one on transnational Jewish lawyers and the politics of the 19th and 20th century, Willie has taught at UCLA CEO’s poll in Paris, Tel Aviv, university, Columbia, and Harvard.

So Joey and Willie, thank you for joining us today. Great to be here. Happy to be here before we turn to our discussion, uh, with the two distinguished authors we have, of course, our distinguished young poets, uh, Mr. Zachary Surrey, what is the title of your poem this week? Secondly, Of oligarchs and idealists.

Okay. This is not about a family discussions is no. Let’s hear me. When we sit down and write our constitutions, maybe in the side room of a city hall or in a dining room, overlooking the. What passes between us? What do the handshakes mean? Is each one, the acknowledgement of personhood, each glance across the room at the man from the south or the farmer dreaming of the hay at the bottom of his oxcart is each glance.

The beginning of a nation. When they sit down and write our constitutions, one realizes that they are bored and restless that their idealism is just to cover for the old pathologies, just a band-aid over the old disputes, the old feuds, the Wells sucking rivers dry before they can reach the fields downstream.

When they sit down and write our constitutions, we want to think of them. Somehow, as God’s sitting there with a singular purpose, spinning gold out of stale air, pulling something valuable out of the Quill so that it could sing a thousand years later, our chorus singing our ghosts back into oblivion.

These are our ghosts. When we sit down and write our constitutions, they are not written for the next millennium. They are not even meant to survive a decade. We just sit down and look up and look around and right. Then have the only principal in a room of oligarchs and idealists. Equality. I love that finale.

There is equity. What is your poem about? Well, my poem really arose out of me trying to make sense of the title of this book. Right? It seems, it seems very hard to believe that that, that a group of oligarchs and, and, and idealists could come up with a document that that is so radically. And I think part of the point of the poem is just that those contradictions are there and, and are so, are so prominent, but sometimes we’re too afraid to see them.

Yeah. Yeah. That’s a great place to start. Joey. I thought I’d ask you that the natural question that follows from Zachary’s poem, uh, how is it that, uh, our constitutional politics in, in your analysis and Willy’s, how is it that we have this alternative tradition you’re pointing to you call it a democracy?

Tuna D tradition, not the conservative tradition. I think we associate with slaveholding and wealthy landed elites, writing a document to unify the colonies. You see a democracy is opportunity, a more radical tradition. How, how does one understand that? The story that we’re telling in this book is not necessarily, um, with, with, you know, respect to that, to that really interesting and great poem at the, at the beginning, it’s not necessarily a story of.

This is there in the constitution as the dominant force at the very start. We’re not saying the founders all believed in the tradition were sketching, but some of them did, especially people like Thomas Jefferson, uh, who began to articulate some ideas that would be later taken up by future generations of increasingly, uh, radical interpreters of.

Original document. And really by the time you get to, uh, to reconstruction in particular, you have the materials to pull together a constitutional story that embraces, uh, a set of principles that we think are worth salvaging and digging up today that our book is. It’s about great. And, and, uh, Willie, these principles is, as you described them early on in the book and then carry the thread forward, it seems that there’s a Trinity of them, right.

They involve anti-corruption protections for the middle-class and opening new opportunities. Can you say more about what these principles are and how we should understand them? Absolutely. So the first two, um, or really there. From the beginning, the third was only on the fringes or recessive element in the political conversations at the founding.

So the first two are anti oligarchy. Um, the principle that the constitution requires us, both its texts and principles and provisions, and also. Sustaining it over time requires us to restrain oligarchy, to take measures, to prevent excessive concentrations of wealth and economic power. All right. What the right Jeffersonians called prevent, uh, money to aristocracy.

Right. Um, the second principle is. Take measures to, to preserve a broad wide open middle-class a middle-class that’s open right. And wide enough to accommodate everybody. But of course, who is included in everybody changed over time and for even the sort of most radical Jeffersonians and Jacksonians by and large, everybody meant every white guy.

Um, abolitionism always existed from the founding onward. So there was always a handful and then a growing number who expanded that to really honor the third principle, which is inclusion, inclusion of groups, hitherto excluded racial groups. Somewhat later, but really overlapping, you know, groups, isolated by sex and gender.

But inclusion is the third principle and all throughout the 19th and early 20th century, plenty of proponents of the first do principles, right? Scorn the third one and others not. We tell that story and we carry it through to the. And you make a very strong argument that we have to think in terms of the intersection between the politics and the economics of these principals who say repeatedly that this is a story of political economy and your critical, it seems to me in my reading of those who either.

Just focus on the politics or want to just focus on the economics, Joey, how should we understand the concept of political economy as you’re, as you’re articulating it throughout the book economy is an old phrase, but lately you may be hearing it, uh, around because it’s coming back into use when you had.

Uh, people in the 18th, 19th century, uh, who studied many of the subjects. We now think of as economic, like who has more or less money, what are the wages? What are the rents? Who, how do we divide the spoils of, of our, you know, bountiful society among different people? Uh, and what are, how do the prices end up shaking out?

All that stuff was part of the same conversation. As a set of conversations about political power and authority. And so the phrase political economy was kind of the old economics today. Uh, we’re living in. Uh, a long period through the 20th century, the rise of economics left us with a more, uh, rigorous in some ways more scientific, uh, let’s lease.

That’s what its proponents argued, um, view of, of economic matters. But one that was also a little more, um, hived off. From thinking about questions of politics and some of the questions of distribution that we’re always at the center of what political economists a hundred years ago and more cared about.

And so today, as we recognize, uh, increasingly again, we’re living through kind of another gilded age and we can see that we have some problems with the way that. Politics and economics interact in the way that wealthy interests have a lot of political sway and may be able to block things that most ordinary people would benefit from politically and economically.

It becomes very useful to kind of revive this idea again, of political economy, which is just simple idea that politics and economics are mutually interdependent and constitutive that you don’t have one. Ever kind of going along totally independent. And Willie, this seems to echo a lot of your work as well.

Uh, I think many people, if they read the New York times on a day to day basis, uh, they think the court and our constitutional debates are debates that are not about economics, but what Joey has just described. So, well, it seems to me. It’s the necessity of bringing economics into those debates. Um, so you’re arguing in here, as I understand it, Willy that, that actually constitutional debates have to be debates about economics.

Am I correct in that you are, and, and the historical part of the book, which is to say the first two thirds or so show how. Not only that they must be because you can’t sort of sustain political equality without attending to social and economic equality and the distribution of, of wealth, power, and opportunity in social and economic life.

Not only that you can’t put that th that we never did that from all the great cases of the. Marshall court with a handful of exceptions, the great cases of the Tawney court, all the way up through the new deal. That’s what the justices were doing and quite self-consciously. So they were saying the constitution speaks to our economic arrangements and the disagreements were just what the constitution has to say.

But what you rightly say. Is is kind of the, the, the default assumption that taken for granted view these days is that when they’re talking and fighting about the constitution, the justices on the Supreme court, Talking and fighting about economic measures or economic arrangements. Um, they do that, but in a much more technical sphere, um, and with bodies of law that are most emphatically, not constitutional, that’s something new and unusual in the broad arc of American history.

Then an argument that we should maybe treat the law and these institutions as something a little. Sacrosanct to something that is, that is more relevant to people’s lives and open to the changes and, and dynamism of our society. Willie we’re certainly in, in favor of, of w w w it, I guess so. Sure. I wouldn’t, I wouldn’t have thought to put it that way, Jeremy, in terms of, of sort of sacrosanct or not, we definitely are sort of.

Joining hands with the tradition, which for, for which always treated the what’s going on on the Supreme court in a, um, debunking and skeptical spirit. Um, and with a sharp eye for sort of who’s, who’s, who’s gaining in virtue of the courts interventions and. Refusals to intervene. So in that respect, yes.

And that it, and that it, um, it matters for ordinary people to keep an eye on what the courts are doing and, and, and push back through the avenues that are most often more available to them, which is to say party politics, movement, politics, um, and local politics. So that one reason. Back in the early Republic in the Jacksonian era.

One reason that the Jacksonians, um, stood for states’ rights and localism was the. Um, lamentable one that they thought they could safeguard slavery, those slaveholders among them. But another equally important reason for much of their constituents was, was instead that the notion that local and state governments were more accessible to ordinary working people, or at least again, ordinary working white men.

Um, sorry, I just wanted to have been an. One piece of the story, which I think might be helpful here, which is the tradition that we’re sketching in this book, uh, was primarily not about what goes on in courts. I mean, as Willie says, many of the. Political leaders and activists who are articulating arguments in the tradition.

We’re sketching. We’re pretty skeptical of courts, but they also thought the constitution, isn’t just something for lawyers to interpret in courts. It’s something that impels legislation to try to safeguard the values that need to be protected for the constitution to run. And so it’s a constitution that had a lot to say about legislative.

Duty the duty of the political branches to enact things. And in that way, it’s less of a kind of special only for lawyers, uh, in the special temples of the law kind of view of, uh, what the constitution is, resolutely anti judicial supremacy. And so even when the, the tradition sort of in some ways, flipped from.

Cherishing local and state government to seeing an urgent need for national action. The through line was that in any event, the constitution belongs to the political branches to elaborate. And so. When it went to a great emphasis on the need for strong legislation from Congress to counter the power of, of nation spanning corporations, it was still, the constitution is a charter of legislative duties.

In some ways, Jeremy, that may be the sort of in purely intellectual historical terms. Uh, one of the most important kind of. Discoveries of the book of, of the research behind the book is just how consistent both the phrase oligarchy and the idea of affirmative legislative duties run through so much of our constitutional history, which again is not about what the court says.

The constitution means at all. It’s interesting because in my reading, uh, the presidents also were very important to your interpretation, right? I mean the, the role of Jackson Lincoln and Roosevelt. And so is it, is it as Jackson himself argued, uh, are you arguing as well that the, that the president has a role as constitutional interpreter and constitutional fiduciary is.

Is that how we should understand this too? Yeah, I think so. I think that while not embracing the sort of full on Jacksonian, uh, departmental list perspective on this matter, I do think we are at odds with the contemporary Supreme court’s view that the court is almost the first, last and only interpreter of the constitution.

It’s definitely. Our sense that that’s an aberration in American life. And that for most of our history, even if the court is perhaps first among equals, there’s certainly a, uh, a big role for all of us to play and all of the parts of the government to play in fulfilling. Our constitutional obligations.

We’re in a kind of interesting position with respect to this question, because, you know, there were Progressive’s a hundred years ago who were so convinced that the court was only doing damage only protecting rich people’s property and contract rights and striking down necessary legislation that helped the people and blocked oligarchy.

Uh, that really the best thing would be to just. Not have judicial review, just let legislators judgments about what’s constitutional stand and we are not quite in that same place. Because we do think we need courts. Uh, but we do want to move us out a few clicks back toward having the other parts of the government, uh, play independent interpretive roles and thinking about how we should understand our constitutional obligate.

I thought a place where this distinction comes in very clearly where you situate yourself in a sense between two poles on this, where your chapters, your side-by-side chapters on the new deal and the great society. Uh, in a sense, I think the new deal is the, is the manifestation of your argument, maybe in its clearest form, at least it seemed to me, but then your, even though the great society is of course, in some ways inspired by the new deal and has echoes of the new deal in it.

You also associate the great society with what you call this great forgetting of the tradition of these other branches being intimately involved in the constitutional debates or constitutional politics as you call them. So Willie, what’s different between these moments between the new deal moment and the great society moment.

A couple of things are different. The, the tragic dimension of, of the story we tell about the relationship between the new deal and the great society and. And, and, and it’s not original to us as a sort of piece of political narrative. I think we have some important things to add as, as, as, as a constitutional story, but the tragic element is the new deal by and large was crafted to exclude black Americans.

And that proved at the end of the day, part of it’s on. Um, but the, the, so that the price that Roosevelt and, and the more racially liberal or a gala Tarion new dealers paid for the ascent they needed from Dixie Kratts right in Congress, was to craft new deal legislation, um, in ways that in, in that, that excluded particularly black Southern labor.

Um, and. Uh, second difference was they were however right. Deeply committed. To write to the idea that in order to underpin to the idea that that working class America by which was meant white working class in America had been left out of the running of the political economy as the nation, you know, became more and more of a sort of, uh, an, uh, an industrial nation and one dominated by large corporations.

And that in order to. Get rid of what Brandeis called our financial oligarchy and, and Roosevelt economic royalists. It wasn’t enough. Alright, to make sure that the right sort of democratic party sort of was attentive to the industrial working class and, and, and past protective laws. It was also important to empower that working class in the economic sphere, through very broad and robust protections for union organizing and the light carefully excluding black Southern labor from that deal, but including right Northern black workers, um, who got.

Right. Who, who played an essential part in building the industrial unions have became the backbone of the new deal. Fast forward to the great society. The great society came as, right? The sort of what Joey described as the forgetting a political economy, the ascendancy of a more technocratic sort of Keynesian approach, the economic experts in the, in the great society, white house who, um, Who lost a grip on many of the ideas that they themselves, the older ones had once entertained about what it meant to have a sort of full employment economy in, in the sense that it once meant for the sort of social democratic new deal.

And instead we’re interested in, in a much more impoverished notion as it were of, of, of things like employment. Nevertheless, the great society was riveted on including black American. In it’s great society, um, and in, in, and, but it did so with a, with a different view of what it meant to include black America, a view that was focused more on integration and fair employment and less on sort of reconstructing and reforming what we call the political economy.

Joey I’m sure has something important to add. Well, let’s just say. Um, you know, one of the things that’s so appealing, uh, to me about the, the great society is it’s the first time that our politics really centered a focus on the poor, the problem with the great society, from the perspective of our, uh, tradition that we’re sketching in the book is that, that was really, as far as it went, there was no longer in the, in the kind of war on poverty.

And in the great societies, racial justice initiatives, there was not a, an effort to ensure that there would be a broad distribution of jobs and opportunities for everybody to enter the middle-class. And so you have this problem, this situation, which later conservative politicians were very. Eager to exploit and successfully did exploit that you were suddenly telling, uh, through civil rights legislation, you were suddenly telling, you know, unions that, and, and, you know, industrial workplaces that they had to suddenly, you know, integrate racially.

They had to have black workers in them, which was good. But you were saying that at the same time, As those, uh, industrial settings were kind of beginning to fall apart. And the middle class jobs that had sustained the mid 20th century, middle-class in America were disappearing with deindustrialization and nothing was taking their place.

And so you have this. This acute problem, that in retrospect is obvious, but that couldn’t be seen very well at the time that because the great society liberals were not focused on the big political economy questions that the new dealers had focused on. That they could, they could try to make jobs more inclusive or they could try to help the poor, but they were going to end up with a lot of embittered, uh, white workers who were, uh, not having the economic prospects that the generation before, uh, had had, and politically this turned out to be pretty disastrous for the great society code.

Absolutely though, of course not always recognized at the time. Um, I, I guess to me, and this is not an original interpretation that I have, but it does seem that one of the costs of the, uh, somewhat heroic war in court and the civil rights decisions, obviously brown V board among many others, was that it, it may be over elevated the.

Uh, as a, as an actor. Um, and so this is not an argument against those decisions, but it’s an argument about the ways in which perhaps what you’re criticizing, right? This, um, making of the court into this oracular, um, God-like, uh, interpretive space for the constitution that no one else can touch, uh, that, that in some ways is, is, is an outgrowth of the, of the Warren court.

Is it not? It’s both. I think there, there it’s both the Warren court and the, the backlash on the part of white, Southern racist politicians and, and the folks who may could mobilize against the court, which pushed liberals, um, into a defense of the courts, Supreme authority as the one and only. Legitimate interpreter, right?

It was, it was the, the ways in which the, the Warren court’s enemies grabbed hold of old traditions of, from the left of criticizing the court for its interventions on behalf of, of. You know, the oligarchs and the, and the well-heeled. Those became the weaponry of, um, Southern white reactionaries and racists.

So that, to some extent, at least liberals were boxed into defending the court’s authority. They. Overboard in the sense that they, they, they didn’t, um, hold on to, uh, an older tradition that was skeptical of what courts couldn’t couldn’t do. Courts are great at stopping things and saying no, and they were great at laying down principles of equal justice and integration, which the civil rights movement, right through mobilizing.

Um, in spaces far from the courtrooms help the, to push through Congress. And just one other note about, about that moment of what we’re calling a great forgetting and what you mentioned, Jeremy is saying, people couldn’t see at the time, people like Dr. King Pauli, Murray, Bayard, Rustin. Those right. Black thinkers and activists were very clear about the thinness of what that, what king called fair employment without full employment, about the need for a deeper kind of economic reconstruct.

Um, in order to sustain the kind of political economy he understood full, full well, which is why he marched with right unions and, and sanitation workers in the like, And turn to a poor people’s campaign that was meant to be right. Both about economic and, and racial justice. So, so he saw what was coming and, and the perils for black America have a one-sided notion of, of civil rights that didn’t include economic citizenship.

Absolutely. And I think the scholarship on the civil rights movement, particularly the scholarship of the last 20 years has certainly underlined that point that you, that you made so well. Um, so, so Joey, if we’re living in a sense then with the, um, consequences of, uh, the over emphasis on the role of the court and the mobile.

Push back against, uh, the grassroots politics and the political economic activism that Willie was just describing. So well, uh, your, your, your final chapter, your longest chapter, I think in the book is about what we’re supposed to do now, what we should, what we should do now. So sketch out the, the answer to Lennon’s question, right?

What do we do now? So part of it, the part that connects most directly to what we’ve just been describing is liberals are still living. In this strange kind of Warren court inflected posture of defense of the court. And this is understandable in some ways, because you know, conservatives are still busily attacking the court, even though conservatives have dominated the court for many decades, conservatives still are kind of.

Um, dining out on what was wrong with the liberal decisions of the Warren court. And so liberals are still saying we should defend precedent. Don’t overturn things so much. We think that’s not quite the right posture for the current and next generation of progressives to take toward, uh, the Supreme court.

This court is a radical court. It’s quite similar to courts we’ve seen before a hundred years ago. Uh, it’s writing into. Doc constitutional doctrine, a variety of principles that protect property contract and those sort of old, uh, conservative values in new doctrinal forms against egalitarian legislation.

So we need to begin to turn the battleship of progressive attitudes toward the. Uh, in a different direction, we need to think about political confrontation with a hostile court in the hope that as with FDRs famous, but often misunderstood court packing plan, uh, threats by the political branches to. Push in a different direction might hopefully cause the court to back down or think a little differently about what it’s, um, decisions that are so far out of step with what the American people want would mean for the court’s own continued kind of power and role in American life.

So I think we need to have some check and balance against the court. Um, and so the first thing I would say to, to your big. We need a legislatures as they craft a lot of the different kinds of egalitarian pieces of legislation that we think are needed, which range from, uh, antitrust and corporate law to wealth taxes to, you know, we have, we have a wide variety of areas where we can see future constitutional confrontations between progressive legislation and a hostile court.

And in anticipation of that, Progressive’s need to think about the relationship between politics and the court in a more confrontational way. We need to stop just sort of accepting the, this obviously untrue, but for some people kind of comforting mythology in w that says the court is a kind of neutral umpire rather than a body engaged in its own specialized form of, uh, uh, Constitutional politics.

And you have some startling. At least they were startling to me proposals in this chapter, including changing the jurisdiction of the court, writing into legislation. It seemed to me the way you described it, provisions for what would happen if the legislation were overturned, uh, Willie, what would this look like in practice?

Because this seems to me actually quite different from FDRs efforts to. Simply changed the number of judges, but that was something that had happened throughout the 19th century as well. This, this seems to go beyond that. Some ways it’s actually in some ways, Stops short of the idea that you simply pack the court with.

Um, Progressive’s it, it, although we’re, we are not shy of, of seeing that as, as, as one part of a sort of, um, arsenal of, of measures to, to put on the table. The idea is that often, right. Say with respect to, uh, Obamacare and the, the courts having throttled, what was in some ways, the most important part of OCA Obamacare, which was not the individual mandate, but rather the expansion of Medicaid.

So it included really sort of all Americans sort of in near, you know, just above or below the poverty line, a sort of a huge swath of Americans. Uh, score millions of whom are, are, are uninsured. Thanks to what the court did. Um, if, instead of simply saying, uh, That if the states want to right. Enjoy right. A huge federal contribution to a vast expansion of Medicaid and good public medicine, they, they, they have to, um, sign up for the, this, this expansion or they will lose the stingy and mean-spirited Medicaid they currently have.

And the court said you can’t connect. The enjoyment of this expansion of Medicaid, right. Um, on, on, uh, on staying on with the, with, with, with the whole gamut, you can’t condition, keeping the old Medicaid on joining onto the new, right. And having struck that many states, including our own Texas stuck with the stingy mean part, um, having been invited to do that and, and, and said, no, And we’re allowed by, you know, this intervention by the court to refuse this, but instead the bill could have been crafted so that if the court strikes down this arrangement, which gives the states, right, some, some greater measure of autonomy, then there will simply be a nationalization of Medicaid.

And, and, and there are several other examples of how you can kind of condition various measures that are. Somewhat exposed to some new move on the court’s part on, um, and saying, if you strike this down here, a another, you know, more centralized in some ways, but also more insulated from, from sort of the obvious next move by the court.

So that the idea is to have backup plans with respect to many measures, which are. Less easy for the court to strike down. And I I’m betraying my ignorance here will, even though I’m an historian, have we ever done this before? It’s not totally unheard of. In fact, you’ll see that there are, there are some proposals floating around at various different areas of conflict between the representative branches and the court today.

Uh, actually you’ll see. You’ll sometimes see, uh, jurisdictions unusual. Enact a say a redistricting map that they know is going to get struck down and there’ll be a backup provision in there saying, uh, here’s the map in case you strike down the first one, but yeah, it’s very, very rare to see this even proposed, let alone enacted.

But I think this is a story of, uh, we think it’s important for there to be a Y. Range of tools that legislatures can bring to bear in conflict with the courts so that it’s not just, we have to either expand the cord and packet or do nothing. There need to be some more options in there. And, uh, Congress has before exercise some of the other options that are part of that, uh, spectrum, including limiting in some limited respects, the jurisdiction of the.

Uh, courts or when the court gets to review a measure, you know, so that there are ways of deferring linen measure is, is ripe for judicial review. And obviously the court can overstep those, those restraints and that, you know, can intensify the battle. And, and, and so it, it’s sort of a dynamic that, that these kinds of measures would sort of.

And able to unfold. So this is super helpful and really widening. I think the way we talk about these issues, you’re broadening and deepening our discourse. The final question I wanted to ask was just to apply this to, I know a topic you, you both thought a lot about, and many Americans are thinking about now, um, the, the legacy of Roe V Wade, which clearly is.

Being torn down now and by the court, uh, chipped away at and more than chipped away at it seems to me, what is your advice, obviously, without any guarantee of success, but what is your advice to those who I think represent a majority in much of the country who want to see some protection for, um, women’s women’s right to choose and don’t want to accept the court’s ruling.

Uh, what, what do you, what do you suggest they do in your constitutional politics? So, first I would say legislate, there’s no reason that rights have to come from the court. We can through legislation at the federal level, which of course is difficult to pass right now, but also through the states in the states that have majority’s that favor, abortion rights, you can enact legislation to protect these rights.

One of the insights that I think you might bring to this question from our book is also to look at abortion rights, not only through the lens of kind of the individual personal, uh, autonomy, uh, Rights aspect, even the sex equality aspect of the right, but also to think about it in political economy terms, because there is a, a reason why the people who have the hardest time obtaining an abortion in a state like Texas are always poor women.

And that’s because. The anti-abortion forces have been very good at understanding how to make it more economically difficult for clinics to continue, so that it’s harder for poor women to get to where they need to go. So legislate, uh, but don’t just legislate a right. Also think about the political economy.

Think about the funding thing. Who can go, where to obtain an abortion and try to build, uh, this is drawing on, uh, on Carrie Franklin’s work. Try to think about building an infrastructure of provision that makes it possible for, uh, abortion to not become basically, uh, a right of. Of people wealthy enough to travel, uh, to other states, try to find ways to make it as accessible as possible in the economic, uh, try to make it as accessible as possible to people whose economic means may be as big of a barrier as a anti-abortion.

Willie. I want to give you the last word and I anticipated a little, a little bit what Joey was going to say and why isn’t the solution. Cause I’m sure this is not your, your advice. Why isn’t the solution then just to support the proposals like the Missouri law that would actually prohibit people from traveling out of state they’re in eliminating the oligarchic advantage that those who can afford travel would have, obviously that’s not going to be your advice on this, but how would you respond to that?

Run that by me again. Not to. So as I understand it, right, states like Missouri are proposing laws that would actually prohibit people from doing what Joey said, uh, oligarchs do. Right. Which is to, uh, avoid the laws they don’t like in their own state that they’re imposing on poor people by traveling out of state, uh, and Missouri, what I think penalize correct me if I’m wrong, Joey.

Right. They’re trying to penalize people who would try to do that in the name of antianxiety. Saying, we’re not gonna let anyone travel out of the state. So everyone is subjected that in a sense of. It’s at least it’s being dressed up as however, cynically as a leveling move. So that even, even the, the well-healed Missouri to be clear, I’m not sure it’s even being dressed up that way.

I would have thought it was aimed fairly, you know, transparently. Against the poor women who would seek to get an abortion out of state and those who had helped them, but it was certainly have both effects. One of the, one of the sort of most, you know, I think robust. Constitutional rights is the right to travel and, and the, and the right to sort of both travel and engage in commerce, including, you know, buying or taking advantage of medical services across the country.

That’s one that, that, that even this court I suspect would have a hard time spurning. Um, so I must say that the, the sort of freedom to move about goes, you know, You know, has one of its kind of, you know, anchors in Blackstone and, and, and even this court, even, even this court loves to quote Blackstone, uh, often to conservative purposes.

But in this case, no, Um, so, so I must say I’m happy to take that case even to this court idea that you could, you could prevent someone from traveling, but Joey, Joey may, may see a more, you know, cynical move awaiting, you know, from this court. I don’t know. I, I totally agree. I think this actually illustrates well, Last last, last word, but I, I think it illustrates well, the interesting dynamic where we as liberal and progressive, you know, uh, thinkers today are both interested in confronting the court.

And sometimes we have to rely on it and we have reason to think that there might still be times where we can. I think that might be what. That’s that’s a great way of thinking about it. Zachary a as we close as a young person who clearly thinks a lot about these issues and is concerned about oligarchy and inequality, um, D does this argument about a more confrontational and less reverential approach?

To the court, which in some ways runs against the way civics is taught. And I think the way history is taught in high schools, does this resonate with you and other young? I think it certainly does. I think that the key point that I think will resonate with a lot of young people is this point that our democracy, our institutions, and even the law is, is, is living.

It can change and, and, and we can change it, uh, and it has changed. And I think part of the point here, That we, we, we can’t simply rely on, on precedent, both legal and, and societal, uh, to, to make these, these decisions moving forward, that we actually have to have an honest, good faith conversation about what is important to us as a society, right.

And one that is, is rooted in political economy. Indeed. Uh, this has been so enlightening and, uh, it, I think captures why this book is so important. I want to reemphasize for all of our listeners that this is, this is a book that you should read and it’s a book that’s, uh, not only intellectually rigorous, but really is.

There’s a fundamental story of our society. And I think resonates with so many of the issues. The final chapter talks about affirmative action talks about healthcare does sort of range of issues and connects them to this important history and argument. Uh, the title is the anti oligarchic constitution, uh, by our terrific guests, uh, Joseph Fishkin and William for Beth.

Uh, thank you, Joey and Willie for joining us today. And thank you to Zachary for his poem as always. And thank you most of all, to our loyal listeners for joining us for this episode of this is democracy. This podcast is produced by the liberal arts, its development studio and the college of liberal arts at the university of Texas at Austin.

The music in this episode was written and recorded by Harris. Codine stay tuned for a new episode every week. You can find this as democracy on apple pod. Spotify and Stitcher see you next time.