by Jeremy Leaming
While liberals continue to ponderously ponder how to refute the right’s method of constitutional interpretation called originalism, the right continues to advance a simplistic and destructive story that the Constitution is all about severely limiting the federal government’s reach.
For far too long liberals have obsessed over methods of constitutional interpretation, leaving rightists to advance the constitutional storyline, which says the nation’s governing document only promotes individualism, limited government, and of course Christianity.
As law professor and historian William E. Forbath recently noted in an op-ed for The New York Times liberals have far too often shrugged their shoulders at this narrative, claiming that “rights and wrongs of economic life” are not addressed by the Constitution, but instead through politics.
“That’s a major failing,” Forbath (pictured) writes, “because there is a venerable rival to constitutional laissez-faire: a rich distributive tradition of constitutional law and politics, rooted in the framers’ generation. None other than James Madison was among its prominent expounders – in his draft of the Virginia Constitution, he included rights to free education and public land.”
In a more expansive piece for the book, The Constitution in 2020, Forbath explores the “historical heft” of a century-long effort “to make good on the constitutional justice of livelihoods and social and economic rights ….”
For example, Abraham Lincoln and other founders of the Republican Party argued that equal rights also included “a fair distribution of initial endowments,” and FDR in his State of the Union proposing a Second Bill of Rights, said the government “owes to everyone an avenue to possess himself of a portion of [the nation’s wealth] sufficient for his needs, through his own work.”
Moreover, Forbath noted, African Americans during the Civil Rights Movement strived to “craft a broader social rights agenda,” including the right to a decent income. During the Civil Rights movement, the federal courts took note of the efforts in “undoing the exclusion of black women from welfare rolls,” he continued.
The Supreme Court in its 1970 Goldberg v. Kelly opinion, said, “From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.”
But, Forbath says that since the 1980s “business leaders and lawmakers have been chipping away at the public and private social benefits forged during the New Deal and expansive postwar decades.”
Those actions to tear down the New Deal, helped by moderate Democrats, have exacerbated economic and social inequalities, and a worn social safety net is not helping the vulnerable. Many economists, such as Columbia University’s Joseph Stiglitz, have noted that growing economic inequality cannot sustain a health democracy. Indeed nation after nation has been torn asunder due to a wealthy few amassing all resources.
In his 2020 article, Forbath says basic precepts of our democracy – “Equal liberty” and “consent of the governed” – “are a hoax in a system that allows such savage inequalities as does the United States.”
The right-wing bloc of today’s Supreme Court has embraced the notion that the nation’s founding document is more like the Articles of Confederation, a document that leaves the central government enormously feeble to address national problems. That bloc of justices has also worked to further shred the strong constitutional support for righting economic wrongs.
As Stanford University law school professor Pamela Karlan noted recently, also for The Times’ op-ed page, the high court’s conservative justices suggested they are itching to seriously limit the federal government’s ability to regulate interstate commerce, but they have also limited Congress’s constitutional spending power.
In the recently decided health care case, National Federation of Independent Business v. Sebelius, the conservative wing held that the federal government could not require the states to expand Medicaid services to cover more of the nation’s vulnerable. “For the first time since the New Deal,” Karlan wrote, “the court struck down an exercise of Congress’s spending power.”
Conservative state lawmakers, such as governors in Texas, South Carolina and Louisiana, are claiming they have no intention of expanding Medicaid. In a recent letter to the Obama administration, Gov. Rick Perry claimed that expanding Medicaid could lead to the state’s “financial ruin.” As The Times reports, Texas leads the nation in the number of uninsured citizens. Twenty-five percent of the state’s population “lacks health care insurance.”
Debunking the right’s method of interpreting the Constitution is an important task. Equally important, if not more so, is the need to tell the story of the nation’s dedication to ensuring for all Americans, liberty and equal rights, including social and economic justice. If this fight is not engaged, the right will continue to easily peddle the notion that the Constitution is blind to economic and social injustice.