Law Profs: How Progressives Can Take Back the Constitution

America’s slow-burning crisis of economic and political inequality poses a profound challenge to our constitutional system. Today, as in the 1930s, an immediate crisis—then the Depression, now the economic devastation wrought by a pandemic—has laid bare the depth of the challenge. Too much economic and political power is concentrated in too few hands. It’s still possible to change course, to disperse economic and political power more broadly among all the people and ensure that the United States remains a republic rather than an oligarchy. But whether our political system is capable of doing this will depend on the outcome of a massive, looming constitutional confrontation between the elected branches and a hostile Supreme Court.

Liberals and progressives in the elected branches of the federal government are setting out to do the necessary work, and have made a start. They hope to enact major redistributive reforms, providing more decent jobs, more social insurance, more political and economic clout for ordinary Americans, more taxing and breaking-up of concentrated wealth. But these important, overdue efforts are vulnerable to constitutional attack.

As in the 1930s, liberals and progressives confront a very conservative federal judiciary that is hostile to redistributive reforms. As in the 1930s, the judiciary was put in place by a political party with a weakening grip on political power but a fierce determination to maintain minority rule by translating much of its vision for our economy and society into constitutional law.

Conservatives know that the Constitution speaks to the distribution of wealth and economic power. Their forebears argued that the Constitution condemns redistribution. Today’s conservatives are reviving those arguments, and our right-wing Supreme Court is baking them into constitutional law. When today’s Court declares that the property rights of agribusiness nullify farmworkers’ right to organize, or that the federal government lacks the power to expand Medicaid across all states, or that campaign-finance rules violate the free-speech rights of the rich, the Court’s conservative majority is building a bulwark against progressive campaigns to address America’s extreme inequality.

This is hardly the first time courts have intervened to protect wealth from redistribution, business from regulation, and capital from organized labor. But liberals and progressives have forgotten how their forebears fought back. In the past, reform-minded presidents, lawmakers, and citizens argued: Oligarchy is not just an economic, social, or political problem; it is a constitutional problem.