The Missing Jurisprudence of the Legislated Constitution

Abstract

Does the Fourteenth Amendment and its Equal Protection Clause – the promise that "no state shall deny equal protection of the laws" – have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts – the adjudicated Constitution – or what I propose to call the legislated Constitution, the Constitution looked to by the conscientious legislator as he or she seeks to fulfill her political obligations. My claim in this chapter is that the legislated, rather than the adjudicated, Constitution can more plausibly be read as guaranteeing an equality that is supportive of progressive goals rather than in tension with them. Programmatically, I will suggest that progressive lawyers should take this opportunity of their respite from judicial power and attend to the development of that Constitution, so that we might at some point in the future urge fidelity to it on the part of our representatives, rather than continue to attend, with the same intense devotion that still characterizes our current legal zeitgeist, to the adjudicated Constitution.

The very coherence of a "legislated Constitution," however, depends upon an accompanying jurisprudence (or, awkwardly, legisprudence), and that is a jurisprudence that is currently entirely missing from even the most utopian constitutional theorizing. I will conclude by suggesting what that jurisprudence might look like and what its creation, or rediscovery, will require.

Keywords: Constitutional Law, Equal Protection Clause, Jurisprudence, Law and Society, Legislation, Public Law and Legal Theory, Social Welfare, Economic Welfare

JEL Classification: K00, K10, K30