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The Crisis of the Middle-Class Constitution

WHY ECONOMIC INEQUALITY THREATENS OUR REPUBLIC
Written by GANESH SITARAMAN
Format: Hardcover, 432 pages
Publisher: Knopf
On Sale: 03/14/2017
Price: $28.00
ISBN: 978-0-451-49391-0
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open close ABOUT THE BOOK
An original, provocative contribution to the debate over rising economic inequality that argues that a strong and sizable middle class is in fact embedded in the very framework of our government and its founding document.

For two thousand years, constitutional republics assumed class divisions a priori. But as Ganesh Sitaraman reminds us in this exceptionally lucid study, our Constitution, growing as it did out of a society of almost unprecedented economic equality, made no provisions to prevent the upper class from seizing the levers of power, as previous constitutions had. Now that the wealthy are doing just that, Sitaraman argues Americans face a choice: Do we want to live in the kind of equal society our founders always assumed we would, or do we want to adapt our Constitution to fit the kind of inequality they believed America was an exception to? In deciding that question, he reasons, we should be heartened by the fact that we've taken steps to reduce inequality and strengthen the middle class before now, but we can and should take those steps again

“In his fine book, both history and a call to arms, Ganesh Sitaraman argues that the contemporary explosion of inequality will destroy the American Constitution. . . . He has done all of us a great service, taking an issue of overwhelming public importance, delving into its history, helping understand how our forebears handled it and building a platform to think about it today.”  —Angus Deaton, The New York Times Book Review (cover review)

“Ganesh Sitaraman is a bold and visionary thinker whose new book, The Crisis of the Middle Class Constitution, shows that the disappearing American dream is more than a policy problem—it is a constitutional crisis. In our age of growing inequality, the stakes couldn’t be higher. Every American needs to read this book.” —Senator Elizabeth Warren

“The Crisis of the Middle-Class Constitution may well prove to be the most important political book of the year.”  —The Huffington Post

“In a powerful new book, the legal scholar Ganesh Sitaraman argues that America’s government will fall apart as inequality deepens.”  —Rebecca Rosen, The Atlantic
 
“Sitaraman’s valuable book invites a set of questions that it alone cannot resolve. But they are the right questions, and part of the proof is that they’re hard to answer.”  —The Nation
 
“In a wonderfully concise and well-documented chapter, ‘How Economic Inequality Threatens the Republic,’ [Sitaraman] explains the dynamics of rising inequality and its impact on the political system. . . .  [P]athbreaking exploration. . . . The book succeeds in its central objective: presenting a strong case that economic inequality isn’t just a matter of fairness or economic efficiency; it’s about the survival of our constitutional order. Americans who value the republic can only hope that judges, legislators and we the people take heed.”  —James Gray Pope, The Washington Post

“Mr. Sitaraman is onto an important insight, or at least a pressing question. Evidence
from around the world strongly suggests that liberal constitutions do not fare well in countries with oligarchic social structures. Today, America's middle class is indeed beleaguered. . . . [This] book provides a much-needed reminder: For all our legendary good luck, nothing ordains that all our constitutional stories will have a happy ending.” —The Wall Street Journal

“Sitaraman provides us with a much-needed reminder of how economic inequality has been adjudicated in the past—and how it can be more effectively alleviated in the future.” —Win McCormack, The New Republic
 
“Sitaraman . . . brings a fresh eye and an impressive range of historical thinking to an ageless question: What are the conditions for freedom? He tours the intellectual struggles of the 19th and early 20th centuries, as progressives worked to reconcile industrialization and democracy. He gives us a glimpse of episodes that led to the progressive creation of the income tax, the development of antitrust laws and enforcement, the creation of a welfare state . . . and through the demise of those achievements—a generation in which we’ve reduced taxes, stopped investing in public infrastructure, and stopped enforcing antitrust. According to Sitaraman, we’ve lost the policies essential to the preservation of the middle class.” —Zephyr Teachout, The American Prospect

“What Piketty was to economics, this book is to our constitutional tradition. Sitaraman uncovers the lost essence to our constitutional past, and renders it as important today as it ever was. His beautifully written and powerfully argued book will change the discourse of constitutionalism—for the better.” —Lawrence Lessig, author of Republic, Lost, and Furman Professor of Law and Leadership, Harvard Law School
 
“A pathbreaking effort to rethink the past, present, and future of American constitutional development.” —Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University
 
“Ganesh Sitaraman has reached broadly into history, economics, and politics to provoke concern about the risks that wealth inequality poses to the stability of our constitutional system. This is a brilliantly inventive argument, especially sobering in light of the populism of the right and the left during the last presidential election.” —David K. Shipler, author of The Working Poor: Invisible in America
 
“Can American democracy survive the decline of the American middle class? With The Crisis of the Middle-Class Constitution, Ganesh Sitaraman has provided a strikingly original, provocative and timely intervention in this urgent debate.” —Michael Lind, author of Land of Promise: An Economic History of the United States
 
“American democracy cannot stand too much economic inequality. In fact, American democracy is built on a robust idea of economic fairness among citizens. In this new Gilded Age, these principles have been easy to neglect. In his timely and important book, Ganesh Sitaraman makes a strong case that economic fairness is a constitutional principle, and that if we give up on it, we will have given up on our democracy altogether. In making this argument, he gives readers a powerful and useful narration of the long American struggle for genuine self-government. He also pays close and valuable attention to the concrete reforms that can move us closer to real democracy.” —Jedediah Purdy, author of After Nature: A Politics for the Anthropocene and Everett Professor of Law, Duke University School of Law
open close ABOUT THE AUTHOR
GANESH SITARAMAN is Professor of Law at Vanderbilt Law School and a senior fellow at the Center for American Progress. He has been a longtime advisor to Senator Elizabeth Warren, serving as her policy director and senior counsel. Sitaraman has commented on foreign and domestic policy in The New York TimesThe New RepublicThe Boston Globe, and The Christian Science Monitor and is the author of The Counterinsurgent's Constitution: Law in the Age of Small Wars, which won the 2013 Palmer Civil Liberties Prize. He is a graduate of Harvard Law School, where he was an editor on the Harvard Law Review.
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Chapter One

From Athens to America: The Two Traditions

By the time the Constitution was ratified, John Adams was out of touch with the mainstream of American constitutional thinking. He was perhaps the deepest thinker, the most thoughtful, and the best read among the revolutionaries, and his Thoughts on Government in 1776 guided them as they drafted state constitutions. Adams himself drafted the Massachusetts Constitution of 1780. But in 1787, his tome titled A Defence of the Constitutions of Government of the United States of America appeared to come from a bygone era. Adams himself recognized this, writing to a friend, “This Book will make me unpopular.”

What made Adams an outlier wasn’t the structure of the government he proposed. His suggestion looked similar to the Constitution drafted at Philadelphia that summer. He, too, proposed a system of separated powers, with an executive branch and a bicameral legis­lature. The difference was his justification for that structure. By 1787, Americans firmly believed in popular sovereignty, and they saw both the House of Representatives and the Senate as rooted in the will of the people. Two houses in the legislature simply served as a check on the exercise of power by slowing the legislative process and cooling passions. In the Defence and in his other writings, Adams justified the two houses based on social class. He believed, in the words of the historian Gordon Wood, that “government bore an intimate relation to society and unless the two were reconciled no state could long remain secure.” While America seemed like an egalitarian society without “distinctions of ranks,” Americans would be driven to “better their condition [and] advance their fortunes[] without limits.” This natural desire to acquire more wealth would cause social divisions between “the rich and the poor, the laborious and the idle, the learned and the ignorant.” The task of constitutional government was to “regulate and not to eradicate” such divisions, which would invariably be reduced to two—­the rich and the poor. No society, Adams thought, could be truly equal. There was “no special providence for Americans,” who were just “like all other people, and shall do like other nations.” And so John Adams, a hero of America’s democratic Revolution, argued that there needed to be one house for the “rich, the well-­born, and the able” and another for the common people of the country. Each class would serve as a check on the other because “[n]othing but Force and Power and Strength can restrain” groups of people against “their Avarice or Ambition.” Adams thought he was protecting against oligarchy by confining the rich to one house of the legislature. It was an “ostracism,” he said. But critics at the time found Adams’s position surprising. America did not have an aristocracy, they said. So why create one? Decades later, John Taylor (“of Caroline,” as he was known) called Adams’s Defence a “caricature or travesty” of American constitutional thinking. It made a “radical errour” in envisioning “our division of power, as the same principle with his balance of [social] orders.”

It might seem puzzling that the man who would become the first vice president of the United States thought the American Constitution should align economic classes with the branches of government. But it is only puzzling when compared with the democratic tendencies unleashed by the American Revolution and by our own modern commitment to an egalitarian democracy. To understand why Adams was such an outlier—­and how radical the American Constitution was—­we have to go back in time, to the intellectual traditions that Adams and the founding generation inherited.

For much of the history of constitutional thought, political theorists and statesmen believed economic inequality was inevitable in society and was one of the central challenges, if not the central challenge, of constitutional design. Either the rich would tyrannize the poor, or the poor would oppress the rich. The result would be oligarchy, mob rule, or constant strife. The way to create a stable government was to build economic classes directly into the structure of government, thereby creating a balance between wealthy and ordinary citizens. These class warfare constitutions mirrored the economic inequality in society and mitigated its deleterious effects. For political theorists, the Roman republic, with its patrician senate and tribune of the plebs, served as a detailed case study in this tradition of constitutional design.

But there was a second response to this problem as well, albeit one that was much more speculative. Political theorists in this second tradition recognized that societies might not be divided only into rich and poor. There could be a third group—­a middle class. In these societies, if the middle class was large enough and strong enough, it could hold the balance of power between rich and poor. The middle class would govern wisely, without any of the vices that afflict the impoverished or the affluent. Middle-­class constitutions would not need to be defined by structures mirroring economic inequality. A different kind of governmental structure—­a democracy or commonwealth—­might be possible.

The intellectual history that undergirds these two traditions is obscure today, and it requires an in-­depth exploration into history from ancient Greece through the eighteenth century. But it provides the baseline for understanding what made the American Constitution exceptional and for seeing the connection between political power and economic conditions. If economic power and political power became mismatched, the result would be instability, strife, and even revolution.

Athenian Exceptionalism

Around 600 b.c., economic tensions in Athens were running high. Overseas colonization meant greater wealth for the already wealthy landowners, in addition to access to foreign luxuries. At the same time, poorer families were at risk of being sold into slavery or forced to sell their labor to pay off their debts. “The disparity between the rich and the poor had culminated, as it were, and the city was in an altogether perilous condition,” the historian Plutarch wrote. “It seemed as if the only way to settle its disorders and stop its turmoils was to establish a tyranny.” But the Athenians did not establish a tyranny. Instead, they called forth one of their more distinguished citizens, Solon, who “was neither associated with the rich in their injustice, nor involved in the necessities of the poor.”

In 594 b.c., Solon adopted two major reforms that fundamentally changed the relationship between the rich and the poor in Athens. First, he abolished debt bondage and forgave existing debts. The poor could never be truly equal citizens if they were at risk of needing to sell themselves into slavery. Ending debt bondage meant that over time poverty would not lead to political inequality. The second reform was a significant revision of the political and legal system, particularly an expansion of the scope of who could hold office. Instead of relying on birth status as a qualification for holding office, Solon shifted to a wealth requirement, based on agricultural production. Here, too, the reforms had longer-­term significance: they expanded political mobility. With the shift from birth to wealth, even the poor could potentially raise their economic standing and attain political leadership. As part of his legal reforms, Solon also created a popular law court in which anyone who was injured—­rich or poor—­could bring suit against those who had wronged him, and he established the Council of 400, an assembly with members from different wealth classes. Solon’s reforms, Plutarch tells us, “pleased neither party.” “The rich were vexed because he took away their securities for debt, and the poor still more, because he did not redistribute the land, as they had expected, nor make all men equal and alike in their way of living.” Solon’s reforms put Athens on the path to becoming the democracy that Pericles would herald as a model for the world, where “everyone is equal before the law” and “political life is free and open.” Over the next few hundred years, Athenian reformers would expand political equality even further, making Athens the deliberative democracy we think of today.

What made Athenian democracy work? First was a set of political reforms that established democratic equality. The second great Athenian reformer, Cleisthenes, helped create a democratic identity with his reforms in 507 b.c. He eliminated Solon’s wealth classes and instead divided Athens into ten tribes based on 140 different areas of residence, with each tribe sending members to the now-­expanded Council of 500. The result was a shift from wealth to geography, creating broader, more equal representation in the council. In addition, Cleisthenes adopted reforms to prevent notable individuals from accumulating too much power within the city. Members of the Council of 500 could serve only twice in their lifetimes and for one year each. He also introduced the practice of ostracism, by which the assembly could exile a member of the city. In the fifth century, Athens used ostracism fifteen times, largely to exclude people who were feared to have grown too powerful and were suspected of wanting to become tyrants. Ostracism ensured that the people writ large had a check on the wealthy and powerful.

After Cleisthenes, further reforms extended equality in Athens. The city-­state shifted selection of its top officials from election to lottery. Property qualifications for office were reduced and then eliminated altogether. At the end of the fifth century, the march of Athenian democracy was halted by a generation of warfare during and after the Peloponnesian War. Starting in 411 b.c., Athens went through a series of constitutional revolutions in just under a decade: an oligarchy took over in 411, only to be swiftly replaced by the rule of “the 5,000,” followed by the reintroduction of democracy in 410. Sparta defeated Athens in 404, and the “thirty tyrants” took over the city. Finally, in 403, Athens again became a democracy.

For much of the next century, Athens flourished. This was the golden age of Athens—­of Plato and Aristotle, poets and playwrights. It was also the pinnacle of Athenian democracy. The assembly was no longer restricted by wealth or property qualifications: any male citizen could participate. Within the Council of 500, which set the agenda for the assembly, a tenth of the members composed the executive body, whose rotating chair was selected by lottery and only served for twenty-­four hours, to prevent the chair from accumulating inordinate power. The courts had juries of between two hundred and fifteen hundred people, chosen by lottery from panels of six thousand. Jurors had to be citizens over the age of thirty. Of the twelve hundred officials in the city, only about a hundred were elected, which included ten generals—­the rest were selected by lottery. Throughout this time, economic inequalities never resulted in rebellion.

Of course, by modern standards, Athens doesn’t seem like the ideal democracy. Women, foreigners, and slaves were excluded from participating in politics. But although Athenian political freedom was in part built on the backs of women and slaves, the story is not so simple ­as that might suggest. When compared with other city-­states at the time, Athens was extraordinarily open. Not only was oligarchy the most common form of government in fourth-­century b.c. Greece, but, as the classicist Josiah Ober once noted, “[f]or the first time in the recorded history of a complex society, all native freeborn males, irrespective of their ability, family connections, or wealth, were political equals, with equal rights to determine state policy.”

Just as important, democratic deliberation in Athens was not limited to wealthy elites who did not need to work. At the time, there were twenty thousand to thirty thousand Athenian citizens: adult men who were not foreigners or slaves. About twelve hundred to two thousand of these citizens were wealthy enough to form the “leisure class” that did not need to work, a number that jumps to forty-­eight hundred to eight thousand if we include their families. In other words, only about 5 to 10 percent of citizens were in the highest echelon of economic class. When the Athenian assembly met at Pnyx, the hill that was home to the city’s six-­thousand-­citizen democratic debates, it was not a gathering controlled or dominated by the richest Athenians. Even if all of the economically elite citizens in Athens attended, they would compose only about one-­third of the assembly.

While some at the time, like the now cheekily named “Old Oligarch,” complained that the poor ran the government, Athens was remarkably wealthy and surprisingly equal in its distribution of wealth. Estimates we have of wages suggest that a great number of Athenians earned enough “to enable them to live decent lives.” Our evidence of housing patterns corroborates this evidence. If ancient Greece was severely stratified by wealth, we would expect to see archaeological evidence of mansions (for the rich) and small huts (for the poor). But the archaeological record instead clusters around the middle, with few extremely small or large houses. “Wealth was distributed relatively equitably across Greek populations”; Josiah Ober concludes, “there was a substantial middle class of people who lived well above bare subsistence yet below the level of elite consumption.”

To enable the many working middle-­class citizens to participate in politics, the people of Athens made a second policy choice. They did not assume that relative economic equality would prevent those who were on the wealthier side from dominating politics. To make democracy work, they paid for widespread participation. Starting in the mid–fifth century b.c., Athens paid citizens a per diem for attending the assembly and later expanded the per diem to include jury service.35 Normally, men, women, and children all had to work simply to sustain the family. The payment for political participation offset the losses that accompanied being absent from a day of work. The result was to expand who could govern the Greek city-­state to those even of modest means.

Economic equality and equal political participation were not the only features that allowed Athenian democracy to flourish. Athenian political culture worked to guard against the informal advantages that wealthy individuals could parlay into outsized political power. Because the wealthy could pay for education and had leisure time to develop oratory skills, they were more likely to participate in and dominate the assembly. The famed orator Demosthenes is said to have deliberately shaved off half the hair on his head. Too ashamed to leave his house, he would have to practice oratory for months at a time while his hair grew back. Speakers before the assembly knew that the crowd was vigilant and skeptical of those who accumulated influence, and so orators (especially wealthy ones) were careful to flatter the people. Demosthenes himself captured the depth of this concern, attempting to clothe his oratorical preparation in a populist garb: “[H]e who rehearsed his speeches was a true man of the people: for such preparation was a mark of deference to the people, whereas heedlessness of what the multitude will think of his speech marks a man of oligarchical spirit, and one who relies on force rather than on persuasion.”