Using the Constitution to Frame Progressive Values and Political Proposals

Reclaiming the Constitution For Social Justice

A few weeks ago, in a post on this blog, I said that we who work for social justice in the United States should use basic long-standing, America values to frame our goals. In this post, I want to go further and say that we should root our values explicitly in our country's Constitution. Struggles for social justice in the United States have always been struggles over the meaning of our Constitution. Americans have argued about what the Constitution permits our government to do, and more importantly, they have argued about what the Constitution requires our government to do. In recent decades, 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 most liberals 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 its elected branches. 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.

We must reclaim the tradition of framing political goals like universal healthcare or affordable childcare in terms of values that are rooted in an interpretation of the affirmative duties of the federal government and especially of Congress. We should claim that the policies we recommend ought to be supported by all patriotic Americans because those policies flow from and are required by the basic principles of our Constitution. There are two approaches that we can use: the textual approach and the structural approach.

The Textual Approach to Framing Policy Proposals

The textual approach consists of interpreting the text of the Constitution in a way that stresses underlying values. 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 of promoting the general welfare. 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, Congress may have a duty to prevent our current administration from using the threat of invasion to bypass a state's democratic procedures and guarantees.

The Structural Approach to Framing Policy Proposals

The structural approach relies on the idea that the democratic political system established by our Constitution can survive only if certain structural conditions are met. The founders of our republic believed that democracy requires a broad, stable and secure middle class and an economy that gives members of the middle class opportunities to improve their condition. The founders also believed that democracy is incompatible with the concentration of wealth in an oligarchy that can use its wealth to control the legislative process and generally to subvert democracy. 

Throughout American history, progressive reformers have argued that for these reasons, Congress has a duty to enact legislation to prevent the rise of an oligarchy and to provide security and opportunity to the middle class. The protection of voting rights and campaign finance reform may obviously be justified in this way, but Congress’s responsibility to maintain a broad middle class and to prevent the rise of an oligarchy could also provide a basis for enacting a wealth tax or for expanding Social Security. 

The same logic may be used as a part of the justification for a national healthcare system. Today, healthcare emergencies are the most common cause of personal bankruptcies in the United States, and even in the absence of bankruptcies, the cost of health insurance weighs heavily on our middle class and limits the ability of middle-class people to take advantage of opportunities to get ahead. Thus, the lack of a national healthcare system threatens the structural foundations of our political system, and therefore, our government must provide a national healthcare system in order to preserve the structural conditions without which the democratic political system established by our Constitution cannot survive.

The Constitution and Inclusion

Both the textual and the structural approaches may be used to support policies of inclusion. The general welfare should be seen to include the welfare of women and of racial and religious minorities, and we must see that if oligarchy is incompatible with democracy, an oligarchy of white men is unacceptable.

American Patriots Should Join Us

Thus, progressive values and progressive social and economic policies may be linked explicitly to the affirmative duties placed on Congress and the President by the Constitution. That is the way that fights for social justice were conducted in the Progressive Era and in the New Deal Era, and we can use the Constitution in today’s fights, too. If we do that, we will strengthen the appeal of our demands, and we will be able to say that supporters of our Constitution and all patriotic Americans should join us in making those demands.