K. Sabeel Rahman-
Part I: Constitutional Law as a Political Economic Battleground
For students and scholars interested in questions of political economy, inequality, exclusion, and power, conventional black letter law classes can often be daunting. The volume of case law and the compressed time of the semester can often squeeze out more thematic and critical discussion of these themes. Furthermore, the selection of cases covered and the focus on current legal doctrine may not always highlight fully the contingencies, roads not taken, and the normative and structural stakes of these legal debates. This page, like others in the “Law and Political Economy 101” series, offers a primer on constitutional law from the perspective of political economy. There are of course many different ways to approach a constitutional law curriculum centered on LPE themes; this series represents one possible approach.
This primer is designed to be a companion to a standard semester-long class on Constitutional Law covering Federalism, the Separation of Powers, and the Fourteenth Amendment. Beyond the doctrinal developments and case law, any constitutional law course raises several key overarching themes. Note that this primer does not address issues around First Amendment doctrine and courses focusing on speech and religion questions. This first post of three highlights themes that I explore in subsequent posts.
The Structural and the Substantive constitution
First, constitutional law is fundamentally a project of state-building, a battle over the core question of who governs. Call this “the structural constitution.” In doctrinal battles over the Commerce Clause, federalism, or Separation of Powers we see efforts to construct modern federal authority as a counterweight to pressing social and economic problems: inequality, economic power, immiseration, racial and gender discrimination. We also see battles over who controls the exercise of such power: state and federal courts and legislatures, executives, voters, and judges. Often these structural cases are decided based on background understandings or inferences about how these different governmental bodies function—and how they differ from one another. Does a shift in power towards courts promote democracy and deliberation, or inhibit it? Does the appeal to executive power mean greater accountability to the voting public, or greater concentration of potentially unchecked political power?
A second key theme is the battle for inclusion, the contestation over the scope and meaning of “We the People”, in whose name the Constitution functions. Call this “the substantive constitution.” The rights jurisprudence emerging from the Fourteenth Amendment can be understood as a series of ongoing battles over the “privileges and immunities of citizenship.” Although the doctrinal phrase itself was precluded from playing a major role in modern rights disputes in the Civil Rights cases, as a conceptual frame it endures. Whether it is equal protection and race discrimination, or reproductive rights and substantive due process, or the rise of animus claims protecting LGBTQ communities, or fights over voting rights and campaign finance reform, these fights are in effect about the scope of the political community itself. Who counts as a full-fledged citizen? The effort to unroot slavery and its longer shadow, fights over immigration or voter suppression all represent ways of enforcing the boundaries of the political community. And even if formal citizenship is won, what substantive rights and protections does such citizenship entail? Battles over substantive individual rights of privacy, liberty, dignity, and economic equality are in effect about the content and meaning of membership. These two dimensions of membership are interrelated: formal inclusion in the polity means very little if a constituency is precluded from enjoying substantive economic and social freedom; and deep protections for substantive rights are of limited value if they only apply to narrow constituencies leaving others outside the scope of the constitutional vision.
These two dimensions—the structural constitution and the substantive constitution—are closely interrelated. While in any given case the question of governmental structure intersect but are distinct from the specific substantive issue in dispute (e.g., a case about an individual mandate to buy healthcare is both about healthcare, and about Congressional power more broadly), one abiding lesson is that structural holdings are shaped by and emerge from concrete historical and political conflicts with immediate stakes. For example, a preference for state over federal power could in some contexts be a proxy for reallocating power away from constituencies pushing for more egalitarian and inclusionary policies. But at the same time, structural holdings are reversible: those inferences are historically contingent, even as the structural holding might carry forward in time, so a decision that at one point in time empowered exclusionary politics might be repurposed in a different context to push for inclusion—and vice versa.
Interpreting Constitutional Cases and Texts
The Constitution and its meaning (both structurally and substantively) have always been deeply contested, both in and out of the courtroom. For students entering into a constitutional law course with an interest in political economy themes, it may be helpful to approach doctrinal debates in a broader frame.
As a student, a key challenge is being able to toggle back and forth between different levels of debate and interpretation. Constitutional law debates and individual cases must be understood along three different levels. In most classes, the focus will likely be on the doctrinal level: these are the arguments one might make in a brief or in court, where one can draw on and argue the interpretation of cases, but one remains relatively constrained by the black letter law. Here the goal is to understand cases as tools and building blocks for a viable legal argument—where viability is a function not just of the case law, but also one’s argument and interpretation, and the specific court and judges one faces. On this terrain, the partisan lean of a justice, or the moral dubiousness of a holding might be relevant, but have to be filtered and translated through a specifically doctrinal argument. There is room to maneuver here—that is part of the skill of legal analysis and interpretation that one learns in law school—but that range of motion is limited.
At the same time, a second level of debate and understanding is political. Each case is in a way a distillation or projection of immediate historical, political, and partisan conflicts that might be lurking behind the surface driving the arguments and the results. As a historical matter of explaining why cases and constitutional doctrine turned out the way they did, here raw power politics, partisanship, and other contextual factors are central. What were the partisan leanings of different judges? How did different interest groups shape the course of litigation leading to the decision, or shape the broader public discourse in ways that made different legal theories become more viable or likely to be adopted?
There is a third level of debate as well that arises in each case: in addition to their doctrinal and political dimensions, constitutional debates can and should also be understood as more aspirational. What constitutional values and ideas ought to mean as a moral matter, not just a legal one, and in the broader social and political dialogue, not just the discussion in the courtroom. Here the scope of debate and discussion is broader: not just what the precedents bind us towards, but what the constitutional system and substance ought to move towards. What is our moral understanding of freedom, equality, dignity, democracy and how should the constitution be understood in light of those values?
One final note: a conventional constitutional law course will necessarily foreground the written Constitution and the role of courts, as the primary reading will be case law. But the reality is that constitutional meaning is shaped by a much wider ecosystem of institutions, actors, and dynamics. Legislatures, executives, and administrative agencies all engage in constitutional interpretation, shaping the meaning of constitutional concepts like equal protection or due process or interstate commerce through their day-to-day actions in ways that sometimes extend, rework, or even challenge doctrinal holdings. Furthermore, constitutional interpretation and discourse has always been a central feature of social movements—on both the right and the left. Popular understandings of constitutional terms and core moral values of freedom or equality or the role of government all play a dynamic role in shaping constitutional meaning and import.
K. Sabeel Rahman is an Assistant Professor of Law at Brooklyn Law School and President of Demos, a think-and-do tank dedicated to addressing issues of racial justice, economic inequality, and democracy.