Episode

6/28 The Anti-Oligarchy Constitution w/ William Forbath & Joseph Fishkin

June 28, 2022

Sam hosts William Forbath, Associate Dean for Research at the University of Texas at Austin Law School, and Joseph Fishkin,  Professor at the UCLA School of Law, to discuss their recent book The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of Democracy. Sam first runs through recent updates, from AOC and progressives pushing the White House to take action on Roe and the discovery of 46 dead migrants in an abandoned San Antonio trailer, to the GOP’s insistence that, no, fundamentally undermining reproductive rights in the country ISN’T important, and everything is basically the same. Then, he’s joined by William Forbath and Professor Joseph Fishkin as they dive right into the state of the public’s relationship to the US Constitution, with the left lacking a vision of how it functions within the political society and the right having successfully ingrained it as central to how the constitution shapes policy, before situating our political era as a second Gilded Age defined by economic and political inequality, and why the left’s lack of a constitutional vision means that these are not seen as constitutional issues. Next, they trace the recent history of how the two US parties relate to the court, with the institutionalist liberals basking in the afterglow of the Warren court while the GOP, since at least Nixon, has seen opposition to the Court’s “progressive” nature as central to their victories. Forbath and Fishkin then jump back to the founders, assessing how they weighed their beliefs of a judicial system as central to a functioning democracy while understanding that it had no right to overrule the will of the people via the legislature, seeing the constitution as a check on the concentration of power to be used against governmental institutions, and thus puts forward a duty to legislate against economic and political concentration. They then shift to the rise of the anti-slavery Republican Party in the mid 19th Century and their vacation of the South as any semblance of a base until they had begun to dismantle the concentration of economic and political power in the region with the prevalence of slave owners and the electoral role of the 3/5ths clause, moving into an era of egalitarian constitutionalism emphasizing checks on concentrations of economic and political powers and a distribution of opportunity that extends across race gender, that saw the Reconstruction amendments (despite clear loopholes) attempt to reshape the role of the constitution. Next comes the 20th Century, as they walk through the rise of federal courts in the wake of the industrial revolution and the simultaneous populist political movement that came out against the rising concentration of wealth, with Taft attempting to build up the Court’s stature as it became clear they were on the side of the corporation, only for his (physical and meta) attempts to culminate during the reign of FDR after he forced the anti-democratic court into lockstep with him. They wrap up the interview by looking at the lasting effects of the post-FDR Warren Court, and the current shattering of the view of the courts as apolitical, before looking forwards to the upcoming judicial attacks against legislative capacities and how we can move forwards in a way that bolsters the will of the people rather than the deification of the Courts.

And in the Fun Half: Sam interviews special guest Saul Seder on the state of the 3rd grade, parental rights in the state of Disney, the superiority of Jim Carrey over his father, and summarizes highlights from the 2022 little league season. Then Sam and the crew dive into Cassidy Hutchinson’s surprise hearing for the 1/6 committee, Kamala Harris’ only solution to the Dobbs decision being still holding midterm elections (rather than…?), and a GOP candidates’ commitment to cop brotherhood by refusing to acknowledge the existence of rape. Rudy describes the reverberations of his assault, Hutchinson covers Trump’s violent outbursts on and leading up to 1/6, and Russia goes after Ukrainian civilians, plus, your calls and IMs!

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