The Fortification of Inequality: Constitutional Doctrine and the Political Economy

Abstract

Judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. This Symposium Essay examines judges’ role with particular focus on the areas of labor and education. It shows that judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Moreover, for several decades, even the Supreme Court’s more liberal members have offered only tepid opposition to economically regressive constitutional interpretations, sometimes helping shape them. Yet, while much constitutional law relating to the distribution of economic and political power and the nonexistence of social welfare rights now seems indisputable, sometimes even quintessentially American, regressive holdings were once hotly contested and deeply divided. Indeed, the losing side had equally strong, if not stronger, doctrinal arguments.

These descriptive observations, in turn, form the basis for three claims about the future of constitutional law. First, judges matter. Progressives ought not lose sight of their importance. Although strong arguments counsel against turning to courts as primary agents for social and economic change, courts are critical in constructing the political economy. Second, for those who object to economic inequality, mere resistance to the Trump agenda and efforts to return to the constitutional status quo ante are not enough. In particular, the liberal embrace of judicial minimalism has contributed to the fortification of economic inequality; a fundamental shift is needed. Third, such change is plausible, not utopian. Particularly if Americans begin to challenge inequality in the political and social realm, constitutional change in the courts will become not only imperative but also achievable.

Keywords: constitutional law; labor; education; inequality; political economy