The Democratic Case for Tackling Economic Inequality

Crosspost from Balkinization

I share the assessment of the eminent legal scholars writing in The Constitution in 2020 that constitutional law and the judiciary offer limited promise as means of remedying the economic inequality and insecurity that are so much a part of contemporary America. But it will not do, I think, to end the assessment there. In the fraught history of social rights that William Forbath tells, there is also a larger moral about the kinds of appeals that such a movement must make if it is to succeed. The moral is that these appeals have to be grounded in an articulated vision of citizenship that makes clear why widespread economic inequality and insecurity is so starkly at odds with political equality.

Federalism All-the-Way-Down

Crosspost from Balkinization

Progressive legal scholars have tended to gravitate toward national institutions in the quest for a revised and rejuvenated politics. The project of imagining the Constitution in 2020 is an example. With some exceptions, it is mostly concerned with goings-on at the highest level of government. Constructing a progressive vision of the Constitution that can be implemented by federal courts and promoting national progressive legislation appear to be the primary tasks.

This focus on national institutions may be strategically and politically limiting. Often progressivism comes from below rather than from above. Remember Justice Brennan’s exhortation to liberals to look to state constitutions for the vindication of rights. Remember also Louis Brandeis urging the young New Dealers to “end this business of centralization” and go back to their states to do their work. Brandeis in particular represents a decentralist strand of the early progressive movement that forcefully advocated the devolution of power to local democratic institutions, that championed an activist and experimental government, and that harnessed the energies of city and state leaders toward the protection of workers, the middle class, and the poor.