From Economic Inequality to Economic Freedom: Constitutional Political Economy in the New Gilded Age
Yale Law and Policy Review, Forthcoming
16 Pages Posted: 29 Nov 2016 Last revised: 1 Feb 2017
Date Written: December 18, 2016
This Essay has two central goals, one substantive and one methodological. Methodologically, I want to suggest that a progressive response to today’s inequality crises requires such a small-c constitutionalist approach. This shift to small-c constitutionalism is ultimately a catalyst for driving progressive social change. It is not at all clear that either Constitutional doctrine of Supreme Court jurisprudence ought to be, or indeed ever was, the primary driving vector for an egalitarian, democratic vision of our society. Indeed, the recent experience of Supreme Court jurisprudence has been fraught for progressives. As a number of critics have rightly noted, the Roberts Court has consistently exacerbated structural inequalities, evincing a kind of neo-Lochnerism. Just as the Lochner court struck down progressive labor protections in the name of the freedom of contract and a presumption against regulations that promoted the interests of particular constituencies such as workers — who to the Court seemed to be a vested interest rather than a group in need of regulatory protection — so too has the Roberts Court promoted ‘free market’ visions of politics and economics, for example by loosening regulations on campaign finance and voting rights, considering First Amendment concerns about economic regulation, and asserting freedom of contract by upholding arbitration clauses. By contrast, a growing number of scholars are suggesting, we should understand the history of social movements and legislative or regulatory reforms battling for economic opportunity and inclusion as a mode of constitutionalism. For these scholars, the task of combating inequality is one of “constitutional political economy” — the project of interrogating and reforming the values and structures that shape our collective social, economic, and political life. It is simply too much to ask of Courts and the Constitutional text alone to bear the burdens of moral judgment, persuasion, and policy innovation. By shifting our focus to public philosophy, social movements, legislation, and regulation, we put courts in their proper role as part of a larger ecosystem of actors, arenas, and institutions grappling with social change.
Second, I offer in this Essay the beginnings of a substantive argument as well, sketching what a progressive vision of constitutional political economy might look like when tailored to the multiple and overlapping crises of social, economic, and political inequality. The ongoing (small-c constitutional) battles already under way between movements and policymakers over the changing economy suggest the beginnings of a robust, progressive vision for constitutional political economy that advances a view of economic freedom suited for our current moment. This Essay excavates and distills these implicit ideas into a broader normative framework for economic freedom in the twenty-first century.
Any successful progressive moral vision for the new economy must ultimately meet several criteria. The Essay will engage each of these criteria in turn. First, we must develop a substantive moral vision that diagnoses the root problems of inequality and unfreedom, and offers a moral alternative (Part I). Second, this moral vision must translate into strategies that target the most central sources of unfreedom and inequality (Part II). What structural changes and policies must we push for in light of these moral values? Third, these reform imperatives must be accompanied by a theory of social change (Part III). How can we go about making this vision a reality? What are the relationships between law, advocacy, reform, and social movements? Finally, any such vision must offer at least a partial account of where progressivism goes wrong. In what ways does this vision and approach to social change remedy not only flaws of our current system but also limitations of previous attempts at progressive change? The Essay will conclude with some brief reflections on these final questions (Part IV).
Keywords: Inequality, progressivism, social movements, participation, economic freedom
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