“Eminently readable, and anybody who cares about the future of American democracy in these perilous times can only hope that it will be widely read and carefully considered.”
—James Pope, Washington Post

“Fishkin and Forbath’s accessible work serves as both history lesson and political playbook, offering the Left an underutilized—and perhaps counterintuitive—tool in the present-day fight against social and economic injustice: the Constitution.”
—Benjamin Morse, Jacobin

“Aims to recover the Constitution’s pivotal role in shaping claims of justice and equality…in engaging, imaginative prose that makes even the present court’s capture by the ideological right a compelling platform for a revived social-democratic constitutional politics.”
—New Republic

Oligarchy is a threat to the American republic. When too much economic and political power is concentrated in too few hands, we risk losing the “republican form of government” the Constitution requires. Today, courts enforce the Constitution as if it had almost nothing to say about this threat. But as this revolutionary retelling of constitutional history shows, a commitment to prevent oligarchy once stood at the center of a robust tradition in American political and constitutional thought.

Joseph Fishkin and William Forbath demonstrate that reformers, legislators, and even judges working in this “democracy-of-opportunity” tradition understood that the Constitution imposes a duty on legislatures to thwart oligarchy and promote a broad distribution of wealth and political power. These ideas led Jacksonians to fight special economic privileges for the few, Populists to try to break up monopoly power, and Progressives to battle for the constitutional right to form a union.

But today, as we enter a new Gilded Age, this tradition in progressive American economic and political thought lies dormant. The Anti-Oligarchy Constitution begins the work of recovering it and exploring its profound implications for our deeply unequal society and badly damaged democracy.

Why did American workers, unlike their European counterparts, fail to forge a class-based movement to pursue broad social reform? Was it simply that they lacked class consciousness and were more interested in personal mobility? In a richly detailed survey of labor law and labor history, William Forbath challenges this notion of American “individualism.” In fact, he argues, the nineteenth-century American labor movement was much like Europe’s labor movements in its social and political outlook, but in the decades around the turn of the century, the prevailing attitude of American trade unionists changed. Forbath shows that, over time, struggles with the courts and the legal order were crucial to reshaping labor’s outlook, driving the labor movement to temper its radical goals.

Over the course of his career at Harvard, Morton Horwitz changed the questions legal historians ask. The Transformation of American Law, 1780–1860 (1977) disclosed the many ways that judge-made law favored commercial and property interests and remade law to promote economic growth. The Transformation of American Law, 1870–1960 (1992) continued that project, with a focus on ideas that reshaped law as we struggled for objective and neutral legal responses to our country’s crises. In more recent years he has written extensively on the legal realists and the Warren Court.

Following an earlier festschrift volume by his former students, this volume includes essays by Horwitz’s colleagues at Harvard and those from across the academy, as well as his students. These essays assess specific themes in Horwitz’s work, from the antebellum era to the Warren Court, from jurisprudence to the influence of economics on judicial doctrine. The essays are, like Horwitz, provocative and original as they continue his transformation of American legal history.