How to use the Constitution to rein in American oligarchs and save democracy

In 1787, when the framers of the United States Constitution assembled in Philadelphia to launch a new democracy, there was one known form of oligarchy in the Western world: aristocracies consisting of dukes, viscounts and other titled nobles. Accordingly, the framers inserted a clause forever prohibiting titles of nobility in the new nation. Job done. Except that the framers had no way of anticipating that a novel form of oligarchy would soon emerge to challenge constitutional democracies: moneyed aristocracies ruling by virtue not of formal titles but of concentrated wealth.

Today, we hear a lot about Russian oligarchs but not much about the American variety. And yet, according to Joseph Fishkin and William E. Forbath in their trenchant new book, “The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy,” rich Americans have accumulated enough economic power to threaten the very existence of constitutional democracy.

The basic facts are familiar: for example, that the 20 wealthiest Americans own more than the bottom half of the population - 152 million people. So are many of the mechanisms by which wealth is parlayed into political power: for example, campaign contributions, lobbying and the proverbial revolving door. A single donor, Peter Thiel, has already invested more than $20 million in pro-Trump Senate and House candidates, many of whom are spreading the lie that Donald Trump won the 2020 election.

So what does the Constitution have to say about economic oligarchy? According to the Supreme Court’s conservative majority, the Constitution not only permits the rise of concentrated economic power but also shields it against democratic countermeasures. Over the past few decades, the court has repeatedly struck down legislation enacted to curb the burgeoning power of wealthy individuals and corporations. Rich Americans now enjoy a courtcreated constitutional right to spend unlimited money on elections. And in the famous 2010 case Citizens United, the court extended that right to for-profit corporations. Along the way, it held that corporations are “persons” entitled to the same constitutional rights as natural persons. Never mind that they live forever, are bound by law to act in the selfish interest of their shareholders and accumulate wealth without limit. (As of 2017, 69 of the 100 largest economic actors in the world were corporations; only 31 were nations, according to Global Justice Now.) In the strange world of the conservative justices, it is discrimination for Congress to treat such an entity differently from an individual American citizen.