The Political Economy of “Constitutional Political Economy”

Jeremy Kessler’s essay argues that contributions to this Symposium would benefit from revisiting the Marxist tradition’s toolkit for understanding the interplay of law and political economy. From a Marxist perspective, Kessler suggests, what was afoot in the “constitution of opportunity” tradition we chronicle may have been not so much an egalitarian critique of emerging industrial capitalism as a battle to purge the American legal and constitutional order of the remnants of precapitalist legal and political-economic formations, such as slavery and the quasi-feudal kinds of property interests in labor that imbued nineteenth- and early-twentieth-century labor law. The New Deal, on Kessler’s account, may have represented “little more than the achievement of properly capitalist labor relations outside the Jim Crow South.” But even if the New Deal’s version of constitutional political economy had more egalitarian force than that suggests, its “discursive supremacy” was short-lived; it was followed by what we call “the great forgetting.” Kessler argues that our account of that forgetting “neglects the determinate political-economic event of the post-WWII period”: a Cold War “between monopoly capitalism and state socialism launched precisely at the moment when the economically egalitarian interpretation of constitutional political economy apparently became unspeakable.” The democracy of opportunity tradition, as Kessler sees it, was not so much forgotten or defeated by forces the symposium highlights, like the anti-New Deal coalition of Jim Crow Dixiecrats and pro-business Republicans; it was purged by Cold War anticommunism. Recovering a more democratic and egalitarian constitutional political economy today, Kessler concludes, may require a direct confrontation with the “material and discursive structures” that anticommunism left us.