Reclaiming Our Constitution for Social Justice

A Tradition of Progressive Interpretation of the Constitution Has Been Forgotten 

We progressives have forgotten how to use the Constitution to argue for social justice, but The Anti-Oligarchy Constitution by Fishkin and Forbath tells us how to reclaim that knowledge and how to use it in the political battles of our time. Fishkin and Forbath show us that the Constitution is not merely – as we now see it - a set of limits on the powers of government. The Constitution also sets out affirmative duties for the Federal Government and especially for Congress. The big conflicts of the past including those of the Populist era or those of the New Deal were seen by the people of those times as conflicts over the meaning of the Constitution and were fought out on those grounds in the political arena and not just in the courts.

Sources of Progressive Interpretation of the Constitution

The affirmative duties of the Federal Government come from several sources. First, the Constitution’s Preamble tells us that it was established in order to “…promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity.” The powers enumerated in the body of the Constitution should thus be interpreted in a way that is consistent with its purpose. For example, Congress might establish a national healthcare system on the grounds that it promotes the general welfare. 

The Preamble is not the only source of affirmative duties. Section 4 of Article IV says, “The United States shall guarantee to every State in this Union a Republican Form of Government ….” This clearly means that Congress has a duty to make sure through appropriate legislation that no state turns its democratic government into an oligarchy through restrictions on voting rights or through corruption But Congress's duty may extend much farther.

For example, we know that the excessive concentration of wealth in a few hands is likely to turn a democracy into an oligarchy. Does that mean that our federal government has a duty to prevent the excessive concentration of wealth? The people who passed the 16^th Amendment to the Constitution certainly thought so and said as much according to Fishkin and Forbath. Today’s conflict over the enactment of a wealth tax is thus a Constitutional question, and we can argue the case for it on constitutional grounds.

The Fourteenth Amendment to the Constitution also supports the idea that the Constitution includes affirmative duties for Congress. The amendment ends with the words, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Thus, Congress has both the responsibility and the right to use its power to safeguard our democracy. Finally, we have the Declaration of Independence, which declares that governments are established in in order to secure the basic human rights that we all share. Our country's founders believed that a government has an affirmative duty to protect and advance our "inalienable rights," and interpreting our Constitution as imposing such a duty is an important American tradition that we have forgotten.

Democracy of Opportunity

Fishkin and Forbath call the tradition of constitutional interpretation that emphasizes the affirmative duties of the Federal Government the "democracy-of-opportunity" tradition. The tradition has three strands, which are (1) an opposition to oligarchy, (2) a belief that democracy requires a broad, middle class with room for most people, and (3) a belief that democracy cannot be successful unless all races, genders and religious faiths are included. If we want to be successful in the struggle for equity and inclusion, we must reframe the struggle in Constitutional terms as a struggle to advance the general welfare and to maintain the conditions for a successful democracy.