The Distributive Constitution

A progressive counter to conservative originalism needs to tell a broader story about material security and economic life. A response to Geoffrey R. Stone, William P. Marshall, Doug Kendall, and Jim Ryan.

The debate on how progressives should interpret the Constitution between Geoffrey R. Stone and William P. Marshall on one side and Doug Kendall and Jim Ryan on the other offers trenchant criticisms of right-wing originalism. [“Debating the Constitution,” Issue #21] Each piece makes a good case for the method it claims to be the best progressive rival. But both essays focus on method in isolation from substance. The reason conservatives dominate our constitutional debates is not so much that they have a killer theory of interpretation that sells well with the public. It is chiefly that they have a bolder and clearer philosophy and narrative about what kind of nation the Constitution promises to promote and redeem. Originalists’ theory of constitutional interpretation is bunk. But originalists are correct in their practical understanding of constitutional politics. Much of what lends originalism its public appeal is the narrative of a “traditional” nation that it promises to restore: an America dedicated to personal responsibility and limited government, private property and godliness. This narrative has aroused citizens, lawmakers, and judges to act boldly on its behalf.

In the introduction to the debate, Democracy’s editors wrote that progressives “have not countered with their own narrative.” Unfortunately, neither have Stone, Marshall, Kendall, and Ryan. Kendall and Ryan are right that progressives should not run away from the Constitution’s text and history. But Stone and Marshall are also right that progressives only look lame when they mimic right-wing originalists and pretend that text and history can clinch many of today’s most important constitutional questions. Our constitutional text and its history are full of contending meanings and understandings. We can find in history evidence debunking the originalists’ own outlandish claims about what history, conceived as “the Framers’ intentions,” commands. We can show that judges in the real world do not follow originalist dogma. But to prevail on behalf of our constitutional outlook and interpretations we also need a counter-narrative of our own—an account of past constitutional contests and commitments that adds up to a vision of the nation that the Constitution promises to promote and redeem. That is what enables particular interpretations and arguments to tap into the broad popular impulse of keeping faith with our past.

Progressives stand for gender equality, cultural diversity, and racial justice; they defend the rights of the most vulnerable. These substantive commitments resonate with Stone and Marshall’s familiar idea that judicial activism is warranted on behalf of relatively powerless and unpopular minorities. But they don’t tell us what kind of nation the Constitution promises to secure for all Americans. What kind of nation is it that must include all its members in the constitutional fold?

The authors’ silence may stem from the fact that there are key elements of progressive politics whose constitutional salience progressives have forgotten. Work and opportunity, material security and insecurity, poverty and dependency: For generations of reformers, their constitutional importance was self-evident. Laissez-faire government, unchecked corporate power, and the deprivations and inequalities they bred weren’t just bad public policy—they were constitutional infirmities. Today, with the important exception of employment discrimination, these concerns have vanished from progressives’ constitutional landscape.

We need to recall this constitutional outlook on economic life because it supplies some of the unifying threads that our current progressive discourse lacks. Such an outlook does not call on courts to take heroic actions against the other branches. Rather, it reminds lawmakers that there are constitutional stakes in attending seriously to the economic needs and aspirations of ordinary Americans. In doing so, it provides a sturdier basis on which to uphold regulations that the right has begun to assail once more. At the same time, it offers a baseline of popular constitutional commitments to all Americans alongside the courts’ necessary interventions on behalf of minorities and the most vulnerable Americans who may be callously excluded.

We are all familiar with the laissez-faire American constitutional tradition. Right-wing originalists are bent on reviving it. But there is an opposite tradition: the rich, reform-minded distributive tradition of constitutional law and politics. We need to remember this tradition, and to examine how it arrived at its present invisibility.

The distributive tradition is as old as the Constitution. Its gist is simple: Gross economic inequality produces gross political inequality. You can’t have a constitutional republic, or what the Framers called a “republican form of government,” and certainly not a constitutional democracy, in the context of gross material inequality among citizens, for three reasons: It produces an oligarchy in which the wealthy rule; it destroys the material independence and security that citizens must have in order to think and act on their own behalf and participate on a roughly equal footing in the polity and society; and it impedes access to basic goods that are the foundation of dignity and standing in one’s own eyes and in the eyes of the community.

The Framers believed that personal liberty and political equality required a measure of economic independence and material security. They declared that the new national Constitution, plus equality of rights and liberty at the state level, would ensure just that measure for all hard-working white men and their families. Eighty years later, this same political economy of citizenship animated the Fourteenth Amendment. Its main aim was to give African-American men the same rights of contract and property that were thought to ensure white men the opportunity to pursue a calling and earn a decent livelihood. In the wake of industrialization and urbanization, reformers proclaimed that the United States needed a “new economic constitutional order” securing the old promises of individual freedom, opportunity, and well-being.

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