About

William Forbath holds the Lloyd M. Bentsen Chair in Law and serves as a Professor at the University of Texas at Austin School of Law. His academic work focuses on history, social and economic rights in the courts, social movements in the Southern Hemisphere, and identity politics during the Progressive Era. As a distinguished scholar, he contributes to understanding the intersections of law, history, and social justice, emphasizing the development and impact of social rights and movements in various contexts.

Research topics

• Political Science
• Chemistry

Selected publications

•  Anti-Oligarchy, Anti-Authoritarianism, The Constitution, and the Court

  SSRN Electronic Journal · 2026-01-01

  preprintOpen access1st authorCorresponding
  PublisherDOI

• Short-Circuit:

  2023-11-09

  book-chapter1st authorCorresponding
  PublisherDOI

• 4 CONSTITUTIONAL CLASS STRUGGLE IN THE GILDED AGE

  Harvard University Press eBooks · 2022-02-01

  book-chapterSenior author
  PublisherDOI

• 9 BUILDING A DEMOCRACY OF OPPORTUNITY TODAY

  Harvard University Press eBooks · 2022-02-01

  book-chapterSenior author
  PublisherDOI

• 3 THE SECOND FOUNDING: A BRIEF UNION OF THREE PRECEPTS

  Harvard University Press eBooks · 2022-02-01

  book-chapterSenior author
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• DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

  American Journal of Law and Equality · 2022-01-01

  articleOpen accessSenior author

  We deeply appreciate Frank Michelman’s thoughtful, nuanced, often profound essay about the arguments at the heart of The Anti-Oligarchy Constitution. It is the kind of reading that any writer of a book like ours hopes, but does not dare expect, to elicit. Michelman truly understands what the book is trying to do. His reconstruction encourages us to think more deeply about certain dimensions of the project, which is our task in this response.The Anti-Oligarchy Constitution aims to reclaim for liberals and progressives the forgotten field of constitutional political economy. But it also aims to advance and deepen understanding of popular constitutionalism, offering what Michelman kindly calls a “richer development” of how popular constitutionalism has worked in the past and how it might work again in the future. Michelman asks whether we are “monists” or “dualists”: monists believe that the only democratically legitimate force in politics is the “unbound rule by current majorities,” whereas dualists believe that constitutions legitimately have some force that can conflict with the political preferences of current majorities.1 As Michelman correctly discerns, we are dualists, but of a kind that is unconventional today. We do not view the Constitution as a force outside politics, constraining and setting the boundaries of politics—a view that fits well with the institutional vision that the Constitution must be implemented by a body that stands (purportedly) above politics: the courts. That court-centric version of dualism became the conventional liberal view in the middle of the twentieth century and has stayed that way. It is as familiar as the air we breathe. Researching and writing The Anti-Oligarchy Constitution led us to embrace a different, and older, view.In an arresting metaphor, Michelman describes our approach as “splitting the atom” of constitutional imperatives.2 We say there are such things as constitutional mandates or demands3 that have real force, but often that imperative force operates in politics—by which we mean both the venue (the so-called political branches as well as the courts) and the practice (political persuasion)—rather than through judges who restrain and referee politics. Michelman’s metaphor is apt today because of the present state of liberal, court-centered constitutional culture (although, to be clear: we are not the first to try to split the atom in this manner).4 Part of what we are doing in the book is showing readers that the present state of liberal, court-centered constitutional culture is anomalous in American history. For the first two-thirds or so of the history of the republic, the idea that the Constitution is both a subject of politics and a framework for politics, and not merely an object of judicial interpretation, was commonplace.5For most of U.S. history, voters, political movements, and politicians imagined and inhabited the constitutional order very differently from the way we do. For them, “the Constitution” was at once a text and tradition one interpreted and a system of government—whose powers, purposes, and precepts one implemented and pursued over time through political and legislative action. That is why, as we show in the book, legislative debates about classic nineteenth-century topics—bank charters, tariffs, the parceling out and sale of public lands—brimmed with constitutional arguments. Legislators on all sides believed that they were not only the nation’s primary policy makers, they were also its most important constitutional interpreters or “expositors.”They made first-order arguments about the Constitution’s meaning that were intertwined with policy arguments about the distributional effects of different policies. Many believed that they had a constitutional duty as legislators to enact measures that thwarted oligarchy and built a broad, open middle class. That was how the New Dealers saw the tasks of administrative state building and enacting social insurance; it was how Lincoln’s Republicans saw their Homestead Acts, their creation of the Freedmen’s Bureau, their distribution of abandoned plantations to the freed people. They were interpreting their constitutional obligations and working out and implementing them through policy making and institution building for their times. For most of our history, this was constitutional common sense.Today, much of it seems foreign. The weighty constitutional significance assigned to (what we would now call) economic policy choices seems strange. Partly this is because, as Michelman ably distills, economics has supplanted political economy. And partly it is because the pervasive talk of affirmative legislative constitutional duties is foreign to today’s highly judicialized constitutional culture: today we tend to think of the Supreme Court as the primary, if not the sole, expositor of the Constitution’s meaning. This turns the Constitution into a set of court-enforced limits the political branches must not transgress. That is what sets up the apparent “paradox” Michelman finds lurking in the ideas we have sketched.6 The Constitution, as higher law, is “necessarily conceived as distinct … from a politics it is there to instruct.” Yet, at the same time, the Constitution “leaves to determination by politics the meaning of its instructions to politics.”7This is exactly right. And it is only a series of relatively recent changes that have led these ideas to seem striking and innovative, perhaps even paradoxical, in their dualist conception of politics—so that the idea of a constitutional imperative operating in politics can draw a plausible metaphorical comparison to nuclear fission. Generations of Americans found these ideas obvious. (And they didn’t even have radio!)Part of what Michelman’s response prompts us to explore, more deeply than we do in the book, is the nature of dualism itself, as we conceive it. What exactly does dualism mean if constitutional debate and argument are part of politics? What force does constitutional argument have? Is it just a matter of rhetoric, a form of political persuasion to be judged against other rhetorical strategies? The next section of this response explores that question.Michelman also prompts us to ask: what is the role of courts in a political culture where constitutional arguments are being made both in a more legalistic register inside the courtroom walls and in a more political register outside them? The third section turns to that question.The final section turns to Michelman’s challenge toward the end of his essay: why, he asks, do we commend the renewal of political economy as constitutional subject matter for the progressive side of national policy debates? Is this chiefly instrumental advice? Are we instructing progressives to talk about the Constitution in the way our book invites because it will be politically effective? Or are we championing this renewal “for its own sake,” as a better way to run a constitutional democracy?8Writing this book, we followed the trails of some important pioneers. One is Bruce Ackerman.9 Ackerman opened the door to projects such as ours that explore the dynamics of American popular constitutionalism in theory and historical practice with his pathbreaking We the People series.10 Ackerman’s initial insight in these books is that our constitutional order has been repeatedly and dramatically altered by the American people in ways that do not comport with Article V of the Constitution (which provides the means of formal amendments). He convincingly demonstrates that the founding itself, and the massive constitutional changes of moments such as Reconstruction and the New Deal, have in common the fact that they do not follow the rules of formal amendment. Instead, through politics, Americans have changed our Constitution. Ackerman recognized that one way to understand this history, both positively and normatively, is what he called “monism”: the idea that there is no such thing as a constitutional constraint, and that really, political majorities should and perhaps do have “plenary power” to enact their policy program. Ackerman rejects monism, as do we. But, of course, he also rejects (indeed, rather demolishes) the simplest modern form of dualism, which imagines that law is separate from politics and that the only way for the people to alter our Constitution is through Article V. Instead, Ackerman imagines a more modern and more political sort of dualism. Americans, he argues, engage in both “ordinary politics” and “higher lawmaking.” Higher lawmaking, in his view, is a multistep process in which national majorities, under conditions of heightened political engagement and deliberation, repeatedly win popular support for their plan to move our higher law in the direction they advocate. Thus, for Ackerman, distinguishing ordinary politics from periods of higher lawmaking is a central intellectual preoccupation.For us, it is not. We view ordinary politics and constitutional politics as different but essentially continuous with one another—there is no bright line between them. In our view, it is possible to engage in ordinary politics in a way that does not expressly or implicitly invoke constitutional ideas and arguments; or it is possible to invoke such constitutional ideas and arguments to varying degrees; or it is possible to engage in a highly self-conscious form of constitutional politics that emphasizes constitutional ideas and arguments. Sometimes these forms of politics change our constitutional order after something that looks like a moment of higher lawmaking in Ackerman’s sense, and sometimes they change our constitutional order without ever even convincing a durable majority of Americans, simply through a gradual accretion of judicial appointments leading to court decisions that alter the of the in distinguishing higher from ordinary lawmaking is on the that we to which is which to which constitutional changes are legitimate and which are reading of American historical practice is that such are they seem there is to about the or meaning of that or or Americans to about the first-order of whether the constitutional changes of the past are constitutional or to be and Thus, we view constitutional politics as an in which a central part of the subject matter of the is how to view the and force of past changes to the constitutional the recent the of the the New Reconstruction Anti-Oligarchy Constitution a tradition of constitutional argument that for the most part through its from constitutionalism to to the modern forms of that are central to the on the American right. Sometimes the constitutional dimensions of the political arguments were more sometimes it was by the Supreme Court and other courts that progressive political to up a more constitutional set of arguments by way of That is one we in a way. The present Supreme Court is doing to the republic, but there is a if the Court modern progressives to a of how to do constitutional will that from the of the of dualism into monism, we a than he has a between ordinary politics and higher lawmaking, we both all the he a rule that to some forms of constitutional politics and it to we the of as through constitutional politics This is part of Michelman exactly what our version of dualism looks like or whether we are dualists at our view, political are by the higher law of the Constitution because Americans believe that to be the For over Americans have in a practice of making on the Constitution and that have a force that and be by the political will of a only but also politicians and think this practice of constitutional politics has real It a kind of common but common which Americans can out of our political as we to one of the and of an national political they to into made of this The same for of as well as in the who changes in the constitutional Many were they were not They like the and the Court and called for to But they so in the of the constitutional we have for and and They were interpreting and making on the Constitution, and they as they to change the and sometimes a form of dualism is into American politics constitutional arguments not simply as a way of a rhetorical on something they think very but because we an understanding that part of our of is to be by certain are the U.S. Constitution is a of national we about constitutional and their we about who we are as a and what kind of national the Constitution to and the Constitution this role in the national it is not that people with about the direction of the nation’s political economy and much have worked to their in arguments about the Constitution. This the of the constitutional politics that into in the That constitutional politics to the modern of an on and and the of this to a of and judges to on its today. It not only with but them as a form of constitutional from our current constitutional politics is a progressive of the kind of the Constitution to for of an of national in the They that the Constitution us to with a rather than political one in which all Americans a and a not only to a but to do something with in their own and to engage in the of their and the This how the Constitution can rather than to a distribution of and that progressives as to a the of this forgotten Michelman that the of American political as we is not a history of “the over time, it at The side at as past as it and it should be by now that we no about the future. of a We some between past and present the Reconstruction Republicans has the U.S. a all of the tradition as it The the New the nation’s economic and by the and the imperative to a middle open and to the nation’s That the of a that to the and into the New of of economic and is the first one in our history Reconstruction in which there is a that might once again all at the of its the no in the of the or not it will do so is history not is it possible to how the conflict will out between a majority and a and highly politically Supreme the and more of constitutional history in The Anti-Oligarchy Constitution, courts are on the or This is a we very much our more progressive readers to century the courts in were the of to to the economic of in an of of by and to and popular to the economic of the as ever the are once again in a at the political aims of the a more deeply political economy. This is not a of We that there are not only in practice but also in courts are more often than to be the most to the who through of the book might well be with the that its are with the we are to for an end to constitutional judicial Many people have that a century and that we are not them. this important do we understand the role of the we view them as a role in implementing an constitutional In the book we talk about judicial in constitutional political economy in of a a it against and a This way of the which we in response to an with is for a one of them is that it why, even our for courts is that they should out of the way of their role is more than is more for them to tradition we has the of and in building a political economy. This work much that courts initial social public in and much But courts often to and and administrative of all these can and should of constitutional political economy they do. It is not simply a matter of against constitutional (the it is also a matter of and implementing and interpreting the and in a way that force to their important aims (the what about the some are once again for an end to constitutional judicial at an end to the Supreme to As a matter of they the and their should have the final in national lawmaking, not the courts. We the of judicial in a more and a progressive in the tradition would much that with the today’s and progressives and this with constitutional arguments in we progressives will with a of popular and legislative and should that to law, law, social and a of other are constitutional must to such popular constitutionalism to breathe. the present Supreme Court will and the should force the to a of at what calls the of from the Court as much as the this some but we for a a court very differently than the present to with the in such as or that the Constitution that some to a so that they are from any real to in our economic all of which have in this have that it is possible for courts to the in a way to and legislative sometimes to up their constitutional duties in such we do not to the Constitution from the courts because courts at their can do work of the work of the most and politically such as the work of the political process from and and at the of our these the liberal work of and the and in our doing what they can to the of liberal into some form of courts are the to do of these of in part because of the forms of that the courts have over our national with constitutional judicial a court something is by the Constitution, a of people will tend to believe it. That can be the modern has made of arguments from the courts into politics and from politics into in the that the same by a of the Supreme Court what the Constitution us as a view that some constitutional important work in this field would That some constitutional are not in court but through politics. We who this view with us might to a of distinct where courts should in or a a of and in the possible institutional like and are in constitutional politics. That is very often courts the they it is often courts rule as they and it is so arguments from politics into courts and from courts into politics as they do. and have different but forms of and in constitutional their have our history and will view is that the courts to a from their present a form of judicial so that it is to judicial over constitutional We for this but we do not it in the Instead, we conflict in the between the branches and the courts over the direction of the nation’s political progressive would have a of at its to force the courts out of the way if the in the we are differently from our who were of the courts of their time, and of the institution of judicial to the that some of them called for its were operating in an without the without by and most without the of important to be by in way of has had a of It has from popular and the of constitutional duty and that are at the heart of the It has to the of very constitutional about and social But even in their deeply and can do much for us to up on them is in our is a in the of that would the and the American that courts do not have a over constitutional as part of a more an over constitutional meaning and courts should to a role in constitutional would such on the of the constitutional arguments more than the boundaries of judicial and legislative We are that the tradition a role for legislative and popular must and the must them if they But there is a of history not in which the Court might a but even perhaps role in a of for all us to the set of Michelman toward the end of his essay the political effects of the choices progressive politicians might to in a constitutional register about what is now as social and economic Is it to and do we Michelman asks, that in more talk about things like and social and on the or in state or on the is to to the of progressive we are we do not We are not political That is an but it is not our We in the book that today’s progressives over time, to something of the of arguments and outside of court that were central to their constitutional politics. But we this without any about the the we do have a view about what this would do. It would the of constitutional politics. such constitutional arguments in the political over time, a more of constitutional debate in which a of political and other institutional operating in politics, out the Constitution’s meaning. In the run this would be more than the present one to the arguments of the is important to the of the as a arguments often in of legislative constitutional duty rather than constitutional forgotten that is to the constitutional for the kind of of and at the heart of much of the progressive same is not for the constitutional against such The constitutional now in the courts and public debate can work the of our court-centered constitutional in which the Constitution operates to courts to politicians and the have much over the past to certain forms of constitutional argument into politics. They have ordinary to some at the very constitutional interpretation, and they have the same to a about judicial What was an challenge to the Court through politics has a through which our of Supreme Court and other judges must their political in order to be for by have a and to the of constitutional law from It is time for this to and for progressives today to their constitutional arguments in politics, as their a of and administrative state building will building a durable majority on the national It will a that can to a politics of and also a politics of economic and political That is an political of whether or how progressive politicians about the that to on that challenge today a of One in is the profound and about the of to that have in Americans over the past They have this in part by state and making of economic and social or They have also it in part through and constitutional They have Americans a in which American and is our constitutional of us as a this view, of the progressive are foreign that our constitutional modern administrative state social public and in the of social and economic and the popular constitutional such is it can only deepen and about the progressive Anti-Oligarchy Constitution that one of these ideas was in the that all of them were by of Americans, often by majorities of Americans and their to be exactly what the Constitution of That was how of movements, and the constitutional of their a constitutional without a that a of our constitutional one that by the has we are not in the of politicians what will win them or next we are that in the this constitutional about the of is It is a in a form of constitutional that with the now in our It is a about what we and do under our Constitution to the economic of our think a move toward a self-conscious constitutional politics on the progressive will not only but also the constitutional politics central to the some other of the that is for the we have just But we also believe that making arguments about constitutional political economy as part of Americans have for most of our history, and as Americans to do “for its own is a social We can try to the constitutional part of the practice to courts and to do that for over a But in the we think it can and have important to in any constitutional But if the people and their the practice of constitutional their of constitutional duty and with to political is that the constitutional system will be by some with its own to the think there is one thing that the right. politics must political economy. We first to think these with the work of a constitutional who is also an in the present Frank things we have from Michelman is constitutional order must what it to a the political Michelman in his engagement with we that this means our of constitutional argument and debate be to the social and economic conditions of has its about the constitutional of a political economy that such We have We think that a political economy that measures up to the of the tradition is for and constitutional in this We Michelman as it would be better for constitutional “for its own if progressives no of Americans, on the of constitutional politics and lawmaking, that this is

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• 5 PROGRESSIVE CONSTITUTIONAL FERMENT IN THE NEW CENTURY

  Harvard University Press eBooks · 2022-02-01

  book-chapterSenior author
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• 7 CONSTITUTIONAL COUNTER REVOLUTION AND THE LEGACIES OF A TRUNCATED NEW DEAL

  Harvard University Press eBooks · 2022-02-01

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• 8 THE GREAT SOCIETY AND THE GREAT FORGETTING

  Harvard University Press eBooks · 2022-02-01

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• CONTENTS

  Harvard University Press eBooks · 2022-02-01

  paratextOpen accessSenior author
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Frequent coauthors

• Joseph Fishkin

  77 shared

• Nicole Hassoun

  The University of Texas at Austin

  64 shared

• Miranda Perry Fleischer

  University of San Diego

  64 shared

• Robinson Everett

  Duke University

  64 shared

• David Lyons

  University of California, Riverside

  64 shared

• Jedediah Purdy

  Binghamton University

  64 shared

• Jeffrey Winters

  Utrecht University

  64 shared

• Lloyd Bentsen Chair

  The University of Texas at Austin

  64 shared