*This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"
by Kate Andrias, ACS Board of Academic Advisers Member and Assistant Professor of Law, University of Michigan Law School
Ours is an economy and a political system from which many ordinary Americans feel excluded; they feel forgotten by those in power; and they worry that their opportunities are declining. Their perceptions are based in reality. Today, income inequality in the United States is at its highest level since the period leading up to the New Deal. The top 1 percent of earners in the United States take home nearly a quarter of our national income. Workers’ real wages have barely grown during recent decades, even as productivity and educational attainment have increased. The situation is most dire for people of color, particularly African Americans, but white men have also fallen behind, suffering mounting health problems and diminishing opportunities. Political inequality has soared as well. Numerous studies demonstrate the outsized influence of economic elites, both individuals and corporations, at every level of the legislative and administrative process.
Trump came to power in part because of these problems of economic and political inequality. His election, like others around the globe, reflected voters’—and nonvoters’—widespread dissatisfaction with political elites. Unfortunately, every indication is that the problems in the political economy that contributed to Trump’s victory will only grow worse under his watch.
The inequality that helped produce Trump’s election represents a failure of American politics. It also represents a failure of U.S. constitutional law—or more precisely, judge-made constitutional doctrine. Constitutional doctrine contributes to, even facilitates, political and economic inequality in numerous ways. Campaign finance doctrine is the most notorious example. But paltry constitutional protections for workers’ rights to organize and strike are also to blame. Some scholars estimate that the decline in unionization in the United States is responsible for up to one-third of the climb in income inequality in recent decades. So too, the Supreme Court’s doctrine on poverty and education is at fault, having allowed, despite sound constitutional arguments to the contrary, a system of vast inequity in schooling to persist. Many other examples exist. Here, too, things are likely to get worse under the Trump administration rather than better.