by Kate Andrias, Assistant Professor of Law, University of Michigan Law School
Ours is an economy and a political system from which many ordinary Americans feel excluded; they feel forgotten by those in power; and they worry that their opportunities are declining. Their perceptions are based in reality. Today, income inequality in the United States is at its highest level since the period leading up to the New Deal. The top 1 percent of earners in the United States take home nearly a quarter of our national income. Workers’ real wages have barely grown during recent decades, even as productivity and educational attainment have increased. The situation is most dire for people of color, particularly African Americans, but white men have also fallen behind, suffering mounting health problems and diminishing opportunities. Political inequality has soared as well. Numerous studies demonstrate the outsized influence of economic elites, both individuals and corporations, at every level of the legislative and administrative process.
Trump came to power in part because of these problems of economic and political inequality. His election, like others around the globe, reflected voters’—and nonvoters’—widespread dissatisfaction with political elites. Unfortunately, every indication is that the problems in the political economy that contributed to Trump’s victory will only grow worse under his watch.
The inequality that helped produce Trump’s election represents a failure of American politics. It also represents a failure of U.S. constitutional law—or more precisely, judge-made constitutional doctrine. Constitutional doctrine contributes to, even facilitates, political and economic inequality in numerous ways. Campaign finance doctrine is the most notorious example. But paltry constitutional protections for workers’ rights to organize and strike are also to blame. Some scholars estimate that the decline in unionization in the United States is responsible for up to one-third of the climb in income inequality in recent decades. So too, the Supreme Court’s doctrine on poverty and education is at fault, having allowed, despite sound constitutional arguments to the contrary, a system of vast inequity in schooling to persist. Many other examples exist. Here, too, things are likely to get worse under the Trump administration rather than better.
But despite our current crisis, there is reason to be hopeful. The Trump Administration’s moves to consolidate power have been met with an outpouring of opposition. Much of this energy is aimed at defending basic and longstanding constitutional principles like the separation of powers, due process, and equal protection, as currently defined in the doctrine. But the protests also suggest a more ambitious vision for the future. In opposing Trump’s nominees and legislative agenda, citizens have coalesced around support for a right to quality public education—one not privatized for profit motive or limited to certain residents. They have spoken out in support of health care for the needy and perhaps for all. And they have rallied behind a more robust conception of workers’ rights. Progressive constitutional law scholars ought to take seriously the budding rights-claims of this opposition, as well as the anger of the voters who supported Trump or failed to vote at all.
Mark Tushnet opened up this conversation about the future of the U.S. Constitution by urging progressive constitutional scholars to abandon their defensive crouch and to engage in utopian constitutional argumentation. He counsels that we should take the Constitution as it is and the Supreme Court as it might be. He is absolutely right that a defensive crouch is the wrong approach. Among other things, constitutional scholars should begin articulating a theory of constitutional law that permits the vast majority of citizens, particularly low- and middle-income Americans, to exercise real power in the political economy and to share fairly in its benefits.
To be sure, claims for a constitutional right to education or healthcare, or to the right to organize and strike free from retribution, are anathema to our contemporary constitutional doctrine. Any serious elaboration of those rights would require scholars to resist existing doctrine, while wrestling with difficult questions about the capacity of courts and their role in the democratic process. I understand why Professor Tushnet calls this project “utopian.” But that phrasing (and framing) may be misleading—at least in so far as “utopian” implies imaginary, remote, or impossibly ideal. As history counsels, all constitutional thinking is a function of social movements, political developments, and particular jurists. Progressives seeking a fundamental rethinking of failed constitutional doctrine need not imagine the impossible; they can root their efforts in real social movements and political efforts. And they should view their efforts for change not so much as utopian, but rather as both plausible and imperative.