From Economic Inequality to Economic Freedom: Constitutional Political Economy in the New Gilded Age

We live in a new Gilded Age. In the years since the 2008 financial crisis, it has become increasingly clear that income inequality is widening dramatically, and that social mobility and genuine economic opportunity are an illusion for most Americans. Such economic inequality magnifies and interacts with chronic crises of structural racial injustice and persisting political dysfunction. The urgency of this moment is reflected not only in the virulent exclusionary populisms resurgent on the right, but also in the wide array of social movements and reform communities mobilizing on the left: from alternative labor organizing among low-wage and “gig” economy workers; to new civil rights movements working at the intersections of racial, economic, and political exclusion; to efforts at reforming our democratic institutions themselves. This project of challenging inequalities of income, opportunity, standing, and voice presents a central challenge for contemporary legal doctrine, practice, and scholarship. What is the role of law in constructing inequalities and exclusions? How can law and institutional structures be reconceived to create a more inclusive and egalitarian society?

It seems obvious that this project would necessarily raise constitutional questions. To understand the constitutional dimensions of contemporary threats to freedom, inclusion, and equality, we must distinguish between two modes by which constitutionalism can grapple with these questions. First, there is what we might call “big-C Constitutionalism”—the constitutionalism of text and doctrine, of the document itself and its interpretation by the Supreme Court. On this familiar approach to constitutional law, battles for a more equitable and inclusive polity play out on the terrain of doctrinal and textual interpretation, seeking hooks in constitutional text and precedent to ground more robust demands for equality and inclusion.

But there is a second mode of constitutional thought and argument, which we might call “small-c constitutionalism.” This approach invokes constitutionalism in another, more literal sense. What are our most fundamental moral values—the values through which we aspire to constitute ourselves as a society? In what ways ought these values constitute—as in, construct, structure, and shape—our fundamental institutions of political, economic, and social order, from Congress to elections to markets, to patterns of discrimination? Constitutionalism in this second sense is fundamentally bottom-up, broadening the terrain to encompass social movements and public philosophical appeals to moral touchstones like “equality” and “freedom.” It encompasses arguments about fundamental values and structure that may implicate not only judicial decisions but also legislative and regulatory ones. These values may well be better and more rapidly realized through statutory or bureaucratic policies, creating what Cass Sunstein calls “constitutive commitments” enshrined in statutes and policies that have a higher moral stature for their fundamental role in structuring our polity and economy: the Social Security Act, the Fair Labor Standards Act, the Voting Rights Act, and others.

In this mode of constitutionalism, the domain of constitutional text and Supreme Court doctrine remain important, but are no longer the primary sites of struggle. Rather than seeing courts as heroic vanguards, with this view, courts are instead laggards. The real heavy-lifting may well be done in other arenas of movements and public discourse, manifesting in local, state, or regulatory policy changes, and only later shaping the high politics of Supreme Court jurisprudence. Constitutionalism, in other words, should be thought of as a part of the more diffuse project of moral debate and reform that starts on the outside through movements and small-scale reform efforts, working its way in towards federal and constitutional codification later on. Understood in this way, the constitutionalism of text and doctrine does not supplant or drive social change. Rather, it complements, magnifies, and deepens reform efforts, activated by and responding to battles already underway at the level of public philosophy, social movements, and local or regulatory reforms.

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, as 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 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.