Constitutional Economic Justice: Structural Power for 'We the People'

26 Pages Posted: 9 Aug 2017 Last revised: 31 Aug 2017

Date Written: April 23, 2017


Constitutional economic justice requires a deeper, more ambitious jurisprudence sufficient to counter the increasing stealth constitutionalization of economic inequality. Major shifts in Supreme Court jurisprudence over recent decades draw on a profoundly anti-democratic neoliberal structural vision articulated by the economist James Buchanan. An adequate response must move beyond the minimalist constitutional economics that has prevailed since the demise of Lochner.

Toward that goal, this essay proposes a structural principle of collective economic power for “we the people.” This principle is both consistent with longstanding Constitutional ideals and tailored to the current challenges of neoliberal ideology and policy. It develops two premises: first, it rejects the neoliberal economic ideology that defines legitimate power and freedom as individualized “choice” constrained by an existing political economy. Instead, this proposed principle recognizes that meaningful political economic freedom and power fundamentally consist of access to collective organizations with potential to create a “more perfect union” with better and less constrained options. Second, the post-Lochner principle of judicial deference to legislative economic judgments is an insufficient guide to meaningful democratic access to collective economic power. Other structural issues, including the division of state versus federal power and the nature and role of judicial power, crucially determine meaningful access to economic power.

This essay shows how the principle of collective economic power guides economic justice in three doctrinal examples, addressing different structural issues. First, it provides a principled basis for applying the dormant commerce clause to limit the race to the bottom among state and local governments using tax and spending subsidies to attract private capital economic development, increasingly shifting public resources to nationally organized businesses at the expense of public support for education, health, and infrastructure. Second, the structural principle of access to collective economic power challenges the constitutionalization of cost-benefit analysis in the minimal rationality test for reviewing economic policy. Cost-benefit analysis rests on a stealth revival of Lochner’s naturalization of existing market constraints, creating a barrier to democratic power to change “market” prices to create better or different opportunities. Third, the principle of collective economic power refines due process rights to support judicial power to protect both the procedural and substantive economic rights of non-wealthy persons. Meaningful property and contract rights require access to the collective power of the courts and to class action litigation, not simply individualized private arbitration subject to unequal private collective economic power.

Keywords: Constitutional law, Federalism, Separation of Powers, Judicial Review, Economic Rights, Economic Justice, Economic inequality, Economic Development, Law and Economics, Economic Liberty, Cost-Benefit Analysis, Rationality, Democracy, Tax Incentives, Race to the Bottom, Due Process, Arbitration, Class

Suggested Citation

McCluskey, Martha T., Constitutional Economic Justice: Structural Power for 'We the People' (April 23, 2017). Yale Law & Policy Review, Vol. 35, No. 1, 2017; University at Buffalo School of Law Legal Studies Research Paper No. 2017-001. Available at SSRN:

Martha T. McCluskey (Contact Author)

University at Buffalo Law School ( email )

O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-2326 (Phone)
716-645-2064 (Fax)

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics