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As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal members have offered only tepid opposition to economically regressive constitutional interpretations, sometimes helping shape them. Third, while much constitutional law relating to the distribution of economic and political power and the non-existence of social welfare rights now seems indisputable, sometimes even quintessentially American, regressive holdings were, in fact, hotly contested and deeply divided. Indeed, the losing side had equally strong, if not stronger, doctrinal arguments.
As discussed in Part III, these descriptive observations, in turn, form the basis for three claims about the future of constitutional law. First, judges matter. Progressives ought not lose sight of the importance of judicial appointments. Although strong arguments counsel against turning to courts as primary agents for social and economic change, courts are critical in constructing the political economy. Second, for those who object to economic inequality, mere resistance to the Trump agenda and efforts to return to the constitutional status quo ante are not enough. In particular, the liberal embrace of judicial minimalism has contributed to the judicial fortification of economic inequality; a fundamental shift is needed. Third, such change is plausible, not utopian. Doctrine that now often seems natural is by no means fixed. Particularly if Americans begin to challenge inequality in the political and social realm, constitutional change in the courts will become not only imperative but also achievable.
The Fortification of Inequality: Constitutional Doctrine and the Political Economy,
Ind. L. J.
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