It is time for an ambitious constitutional vision of economic justice. Since the end of the Lochner era, the prevailing constitutional narrative has taught that the Constitution generally should leave economic policy decisions to the legislative and executive branches. That structural theory treats economic justice as discretionary, separate from and subordinate to fundamental constitutional protections for political and civil justice. At most, that narrative supports constitutional protections against economic inequality as narrow exceptions subject to careful scrutiny and constraint.
As economic inequality has increased over recent decades, constitutional doctrine has become more firmly set against economic equality. Not only has the U.S. Supreme Court turned away from constitutional protection of those with modest resources, but it also has increasingly (though often subtly) used the Constitution to limit political branches’ discretion to promote equality.
In response, this Essay proposes a structural principle for constitutional economic justice centered on equal and broad access to collective political economic power. This theory of economic power for “we the people” adds to the principles guiding the balance of power among the branches of government: judicial, legislative, and executive, or state and federal. The proposed principle builds on two premises about constitutional economic justice.
Professor of Law and William J. Magavern Fellow, University at Buffalo, State University of New York, mcclusk@buffalo.edu. This Essay was presented at the American Constitution Society’s Law and Inequality Conference at Yale Law School (Oct. 17, 2015), at ClassCrits VII, Emerging Coalitions: Challenging the Structures of Inequality, University at Tennessee College of Law (Oct. 24, 2015), and at SUNY Buffalo Law faculty workshop (Dec. 4, 2015). Thanks to organizers and participants for comments and discussions at those events.
