Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?

Sabeel Rahman employs a wide lens of a different sort. Drawing on his own book manuscript in progress, he begins with the Progressive response to Lochner, especially the hostility of the Progressives and legal realists to the courts. He argues that from this key moment in constitutional and political history we can learn something broader about both social and constitutional change: that restructuring the political economy is a quintessentially democratic process. He argues that we should understand this process—by which democracy asserts itself against various forms of domination—as a constitutional process in a “small-c” sense, as distinct from the “large-C” constitutionalism of constitutional text and constitutional rights.