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We're about to start the show! @JedediahSPurdy
presents an #LPE approach to con law! Join us!
Please register here: https://getinvolved.acslaw.org/component/events/event/713
presents an #LPE approach to con law! Join us!
Please register here: https://getinvolved.acslaw.org/component/events/event/713
. @JedediahSPurdy: What does constitutional law do? One answer is it establishes basic principles for society. How should people treat each other? And how does government exercise power over our interactions?
. @JedediahSPurdy: Under an LPE approach, we try to understand how constitutional law affects the distribution of benefits law creates.
. @JedediahSPurdy: Before diving into what centering these questions entails with respect to constitutional law curricula, I'd like to highlight that "democracy" is a goal centered by LPE scholars.
. @JedediahSPurdy: At key points, the U.S. constitution is an *anti-democratic* constitution. When progressives hear conservatives say "we don't live in a democracy", we might want to deny it. But perhaps its better to embrace the truth of the claim.
. @JedediahSPurdy: The institutional features of our constitution, for instance, have recently produced a minority rule party: the GOP.
. @JedediahSPurdy: Speaking personally, I think progressives should be looking at constitutional amendments, like those passed nearly 100 years ago, re: (some) women's suffrage, the income tax, etc.
. @JedediahSPurdy: But we don't necessarily always think that way. We tend to separate constitutional law and political economy, perhaps citing Holmes' dissent in Lohner, suggesting that the constitution incorporates no general theory of the economy.
. @JedediahSPurdy: At #LPE we center questions of distribution and power, not just questions of "efficiency." And our approach to constitutional law is no different.
. @JedediahSPurdy: We must think about the economic dimensions of constitutional adjudication as well as the role of constitutional law in shaping, for example, property and antitrust law.
. @JedediahSPurdy: One thing constitution law does is remove certain forms of inequality, while letting deeper, more structural inequalities remain undisturbed.
. @JedediahSPurdy: For example, between 1970 and 1978, the Court struck down several attempts to enshrine entitlements to public benefits, demand equal protections for poor people, and disturb property and taxation systems that perpetuated broader social inequalities.
. @JedediahSPurdy: In 1976, the Court made the race-class connection "constitutionally invisible." (Washington v. Davis)
. @JedediahSPurdy: Essentially, the Court has issued blank checks for perpetuating deep structural inequalities.
@JedediahSPurdy: Economic inequality, and its intersection with racial subordination, have been pushed into the "background" of constitutional law. But it should be at the center of our analyses.
. @JedediahSPurdy: The Court also waived through laws requiring payments for the exercise of abortion rights, treating the economic situation of any individual woman as "given" and beyond the realm of constitutional analysis.
. @JedediahSPurdy: Paths for equality with respect to race & gender were narrowed to a formalistic equality, rooted in a a concept of equal treatment that did not contemplate the distribution of resources or power.
@JedediahSPurdy: By contrast, constitutional law affirmatively defended economic power. One example is the use of First Amendment doctrine to protect corporate campaign spending. (Buckley v. Valeo; Citizens United)
@JedediahSPurdy put another way, the Court indicated there is a constitutional right to transform money into political speech. It advanced a conception of voters as consumers and spending as the "power-free" expression of ideas. Willful naivete.
@JedediahSPurdy: by treating the distribution of political power as outside its purview, the Court was able to cast itself as maintaining "neutrality" and avoiding intervention in legislative activities
. @JedediahSPurdy: We have consistently seen the social democratic approach to constitutional law defeated by a neoliberal approach that abstracts individuals from material and social reality.
. @JedediahSPurdy: Today, liberal and progressive approaches often still focus on a narrow kind of equality. They do this even thought social movements like the Black freedom struggle centered concerns of economic distribution in their broader politics.
. @JedediahSPurdy: For the center-right, the animating vision is still that articulated by (future) Justice Lewis F. Powell in the famous Powell Memo. They believe the system of "free enterprise" is a prerequisite of individual liberty.
. @JedediahSPurdy: I have thought about some strategies we can adopt in our current constitutional moment.
. @JedediahSPurdy: First, we must push for "strong democracy", including voting rights for people who have been incarcerated, the people of Puerto Rico, and many others who are currently shut out of the political process.
@JedediahSPurdy: Second, progressive advocates have been pressing for a new form of "economic citizenship", increasing power in the workplace and recognizing people are not truly free in the economy without security.
. @JedediahSPurdy: Third, we need a constitutionalism to confront the carceral state. Perhaps arguing for due process and equal protection with respect to treatment by the police.
@JedediahSPurdy: The core function of constitutional law is constraining the government's power over the people. Nothing could be more central than accountability for the police.
@JedediahSPurdy: Fourth, we need a constitutionalism that respects the rights of non-citizens. This is especially important following Trump's nativism. Much cruelty can be eliminated.
@JedediahSPurdy: Although there don't seem to many reason for my optimism, I think there is some cause for hope in a reorientation of skepticism toward the courts.
@JedediahSPurdy: We now have an opportunity to reassess how we want courts to function within society.
