The Unbearable Lightness of Tea Leaves: Constitutional Political Economy in Court

Abstract

This paper addresses the latest iteration by Joseph Fishkin and William Forbath of their project on the “Anti-Oligarchy Constitution,” sometimes also called by them the “Constitution of Opportunity.” Fishkin and Forbath seek a restoration to American constitutional debates of recognition of the pursuit of republican-compatible distributions of wealth, status, power, and opportunity as a committed guiding norm for the conduct of American government. Professor Forbath (recalling words of Jedediah Purdy) has described the project as one that is more concerned with “growing tea” than “reading tea leaves.” Growing tea means working in public communicative channels where the Constitution figures symbolically and expressively in processes of public-will formation meant ultimately to drive our politics and the resulting policies in one or another direction. Reading tea leaves means trimming and shaping constitutional argument to responses anticipated from an expected judicial decider. It seems the ambition to restore full constitutional dignity and force to claims regarding basic economic policies (contrary, it may seem, to the New Deal Settlement) must take into full account the presence of the Supreme Court as a leading player on the American constitutional stage. The authors’ perceptions of, and their reckonings with, the risks and opportunities presented by this fact form the topic of this essay. Some tea-leaf reading is involved.