Defending the Constitution for Workers and Not Elites

New Orleans    Hidden in the New York Times the day after the July 4th holiday was a fascinating op-ed piece entitled Workingman’s Constitution, by William E. Forbath, a professor of law and history at the University of Texas in Austin.  Forbath was writing in the wake of the U.S. Supreme Court’s decision on the Affordable Health Care Act, so that gave him his hook, but his real theme was that “liberals” were dropping the ball in not fully understanding and appreciating that the design and updates of the Constitution were meant to guarantee what we might call “distributive justice,” and the opportunity – and right – for average American citizens rather than just elites to live happily and well in economic terms.

It seems to me that Forbath makes a number of strong points here that are worth note and discussion.  One that underlies all of this arguments is that in the hue and cry by conservatives to “follow the Constitution,” too many of us are ceding the Constitution to the rightwing without hesitating long enough to make a fight for its strengths for our positions as well, which undermines our own programs and policies.

Liberals have too often been complacent and purely defensive. The Constitution, they often declare, does not speak to the rights and wrongs of economic life; it leaves that to politics. Laissez-faire doctrines were buried by the New Deal.  Until last week, this response may have been understandable. But it was always misleading as history, and wrong in principle, as well. And it was bad politics, providing no clear counter-narrative to support the powers of government now under attack from the right.

Pulling examples from James Madison to Franklin Delano Roosevelt, Forbath makes a persuasive case that the enduring constitution is interlaced with a “distributive tradition” and that “you can’t have a republican government, and certainly not a constitutional democracy amid gross material inequality…because gross inequality …destroys the material independence and security that democratic citizens require to participate on a roughly equal footing in political and social life.”

This is profound and powerful stuff, and there may not be enough students matriculating from UT Law School ready to take pen an voice to join this army, so the rest of us need to take careful note if we are able to wrest the Constitution out of the grimy, greedy hands of the Koch Brothers and their Justices on the Court and their tribunes in politics.

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.

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