by Samantha Berkovits
University of Texas law Professor William E. Forbath calls for liberals to champion a stronger interpretation of the Constitution that aims to squelch inequality. Those tempted to take up this cause, which Forbath presented in an op-ed in today’s New York Times, may find themselves facing an unfriendly battlefield, but Forbath is confident that history is on their side.
The constitutional argument for equality may seem inherent in a document meant to “promote the general Welfare.” However, the recent victory for liberals in the Affordable Care Act case was ensconced in nearly 200 pages of opinion, with much of the language holding the potential to destroy the legacy of the New Deal, with rough consequences for an American public already facing a dangerous economic landscape. Forbath writes, “Even the new doctrine that the majority adopted may hobble efforts to condition federal grants-in-aid on compliance with national goals, like child-care assistance for the working poor.”
Conservatives, Forbath notes, would have the public believe that the goal of the Constitution is to protect and establish “individualism, small government, godliness and private property.” In response to this “crackpot originalism” liberals have been playing defense, when they should have been on the offensive. According to Forbath, all the necessary tools to present a case for a Constitution that allows the government to, in the words of Justice Ginsburg, “regulate the national economy in the interest of those who labor to sustain it” can be found in American history.
It may be difficult to hold up the original framers of the Constitution, many of whom were slave owners, as pure champions for equality. Still, James Madison drafted a Virginia constitution guaranteeing the right to free education and public land. In the post-Civil War Reconstruction era, when equality was carved into our Constitution with the 14th amendment “many framers of the Reconstruction amendments held that education and ‘40 acres and a mule’ were constitutional essentials.” They also argued for free primary-through-secondary education and the land grant universities that have been incubators for so many of our nation’s greatest minds.
Forbath rests much of his narrative on the concrete accomplishments of President Franklin Roosevelt’s New Deal. “Alongside education, ‘training and retraining,’ decent work and decent pay, his Second Bill of Rights set out rights to social insurance, including health care.” These, as FDR proclaimed, are “the foundations of a healthy and strong democracy.”
Forbath boils down the narrative to “you can’t have a republican government, and certainly not a constitutional democracy, amid gross material inequality.” This is the cause that he wills liberals, including a certain former constitutional law professor now residing at 1600 Pennsylvania Avenue, to challenge those who would claim our Constitution forbids our government from ensuring we feed hungry children and take care of the sick.
The high court’s opinion on the Affordable Care Act can allow the law to strengthen the nation and the foundations of a healthy democracy that FDR promoted. Still, ever weary of the fine print, Professor Forbath asks “the White House, the Democrats and the liberal legal community to reassert a constitutional vision of a national government empowered ‘to promote the general Welfare.’”