The Constitution and Equality

William Forbath, a professor of law and history takes liberal legal scholars to task for yielding to the right-wing re-interpretation of the constitution and forgetting the necessary arguments linking democracy itself to material equality.

In the face of the court’s new constitutional offerings to the assault on the welfare and regulatory state, liberals must remind Americans of the constitutional promises and commitments that led us to create that state in the first place. They must remind lawmakers that there are constitutional stakes in attending to the economic needs and aspirations of ordinary Americans, their dread of poverty and their worries that mounting inequalities are eroding our democracy and its promises of fairness and opportunity.

The Constitution on this account promises real equality of opportunity; it calls on all three branches of government to ensure that all Americans enjoy a decent education and livelihood and a measure of security against the hazards of illness, old age and unemployment — all so they have a chance to do something that has value in their own eyes and a chance to engage in the affairs of their communities and the larger society. Government has not only the authority but also the duty to underwrite these promises.

As he says, “the gist of the argument is simple:”

…you can’t have a republican government, and certainly not a constitutional democracy, amid gross material inequality.

I wish he had drawn the lines of argument more sharply but the piece is worth a read and more work by all of us who see what is happening in the high court.