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Countering the Neoliberal Structural Constitution


Martha McCluskey (@MarthaMcCluskey) is Professor Emerita at the University at Buffalo, State University of New York, and President of the Association for the Promotion of Political Economy and the Law (APPEAL).

This post is part of our symposium on socialist constitutionalism.

The Federalist Society leverages right-wing legal change by promoting constitutional originalism as a seemingly noble and neutral foundation for neoliberal political economy.  Without a comparably accessible and compelling contrary first principle, left and centrist law and politics can appear to be a diffuse agenda of contested interests and identities. But beneath the originalist rhetoric, the One Percent Constitution has been built especially with abstract structural arguments aimed at re-ordering the distribution of power both within government and among private individuals. 

To counter law’s shift to the political right, law and political economy must especially develop a contrary structural constitutionalism. By expanding left constitutional visions beyond individualized social and economic rights, Willy Forbath and other recent LPE blog symposium contributors take important steps in that direction.  The structural approach to U.S. constitutional interpretation focuses on the division of authority between each branch of the federal government, between the federal government and the states, and between government and private persons. Given the inherently indeterminate nature of the Constitution’s text, precedent, and historical intent, constitutional doctrine is inevitably shaped by ideas about the overall design, limits, and purpose of government power. 

The Federalist Society has promoted a neoliberal structural vision that models government on a mythical market, where power is most legitimate and beneficial when organized to encourage competition for individualized private gain from scarcity. In that lens, the collective decisions of democracy are secondary and suspect, properly subordinated to market forces.  Political self-determination reduces to individualized consumer choice among electoral candidates who are groomed and guided by investors whose political economic influence is deemed to naturally and reasonably reflect their superior authority to orchestrate aggregate well-being.  That neoliberal vision revises  human rights to prioritize individualized property rights for the innovators and investors, on whom others are deemed to inevitably depend for their liberty and security.  In short, the Federalist Society and its allies meld libertarianism with authoritarianism by identifying individual freedom with a naturalized system of unequal institutional power that enables a few to gain and govern by minimizing responsibility and accountability to others. 

For those without the economic power to buy the government they prefer, this neoliberal constitutionalism re-orients fundamental political rights toward the right to exit a given systemRobin West critically analyzes how this right to reject public institutions undermines civil society and the ideal of a social compact, giving examples of the new individualized rights to replace public safety with private gun violence, new state and individual rights to reject public health programs, and individualized rights for corporate entities to reject civil rights laws.  Amplifying this anti-social constitutional vision, frequent Federalist Society commentator Ilya Somin reconceptualizes political freedom as “foot voting”:  the individualized right to choose among governments and legal regimes by migrating or otherwise exiting to whatever alternative that political consumer’s purchasing power permits. The resulting market for law pressures jurisdictions to compete to produce legal and political rules and rulers favoring those most willing and able to extort and extract value from others for self-serving short term enrichment. 

This structural vision revives the Lochner era’s constitutional protection of existing political economic power as a fundamental limit on others’ rights to organize and govern.  In response, left (and centrist) constitutionalism must go beyond the formal post-Lochner structural hierarchy that prioritizes legislatures’ social and economic judgments over judicial determinations of individual rights.  Even if modified to provide a floor of social, political, and economic rights, along with campaign finance and voting rights reforms, that structural vision is insufficient to sustain the quality, accountability, and diversity of collective power needed for equitable human freedom, opportunity, and voice.  Nor can a social democratic vision focus mainly on shifting from private market rights to public control and coordination. Public and private power are thoroughly interrelated and dynamically shaped by specific legal institutions that govern the purposes, effects, and qualities of each. 

To counter neoliberalism’s market structuralism, constitutional theory needs to replace the myth of individualized autonomous decision making as the touchstone for legitimate power and freedom.

To counter neoliberalism’s market structuralism, constitutional theory needs to replace the myth of individualized autonomous decision making as the touchstone for legitimate power and freedom. That ideal is rooted in liberal constitutional theory, but provides a thin and misleading basis for defending, evaluating, and strengthening democracy and human well-being, as Martha Fineman argues. Markets necessarily consist of systems of selective public protection for rights to act collectively, as Sanjukta Paul has explained, and these coordination rights generate and distribute power to shape market prices and opportunities. The dichotomy between communitarianism and individualism obscures the fact that individual freedom and agency inevitably depends on access to accountable collective power.  

Structural analysis should explicitly focus on distributing and governing coordination rights to enhance shared prosperity, human agency, and democratic accountability.  Structuralism should prioritize expanding and equalizing human (not corporate) persons’ access to meaningful and diverse forms of institutional power to monitor, contest, and transform authority in both state and economy.  That requires moving from a formal to a substantive vision of the division of power between state and federal governments, among courts, executives, and legislatures, and between public and private sectors.

A progressive constitutional vision of structural power should ask which institutional form in a given context will operate to generate and distribute collective political economic power for an inclusive and democratic vision of “we the people.”  Structural principles should not focus on the general merits of competition versus concentration, or localization versus centralization.  Instead, the goal should be to design and govern both competition and concentration to develop and sustain human quality and equality against political economic pressures to extract, consume, and hoard scarce resources.

For example, a principle of structural power for “we the people” could revise the dormant commerce clause doctrine to prohibit states from using tax or spending incentives to induce local investments from nationally (or globally) organized private capital. This constitutional limit on states would not be based on a general principle favoring federal over state control of economic development.  Instead, it would reflect a substantive analysis of how the current doctrine’s deference to state corporate welfare subsidies operates to close off  broad participation in the benefits of an integrated economy. In substance, the unrestrained competition between states to subsidize mobile corporate capital enables major nationally organized corporations to use their access to multiple jurisdictions to extract resources from localized, disaggregated businesses and communities and to further consolidate political and economic power to undermine competing interests.   The current doctrine’s deference to state economic development policy impedes rather than enhances local democratic power over community interests.  Instead this competition reflects the power of centralized private capital to constrain local democratic governance by forcing a race to the bottom that drains resources from local infrastructure, education, health, good jobs, and environment. A federal commerce clause limit on this corporate welfare competition would empower states with the national collective action needed to push back against nationally organized capital.

 But rather than establishing a general rule in favor of federal limits on states, this substantive structural interpretation of the dormant commerce clause would also support the power of states to go beyond federal standards for protecting environment, health, and well-being for workers and consumers despite potentially reducing national corporations’ gains from accessing  these local  markets. In  the current political economic context, those national or multinational corporations will typically have plenty of well-organized  power to defend their interests in state and local political processes, given their ability to coordinate and mobilize electoral spending, media, lobbyists, lawyers, shareholders and voters in numerous states.  That analysis of comparative access to collective power supports giving states broad deference when their local governance risks burdening rather than favoring national corporations.

Like other constitutional interpretive methods, a structural principle of collective power for the people will not in itself fully resolve hard constitutional questions or the catastrophic threats to democracy, climate, economy, health, and security.  It can, however, shift the discussion by affirming that we are stronger, freer, and more secure with institutions designed to bring us together to advance mutual care and alleviate unequal harm than with institutions designed to drive most human beings apart in a competition for increasingly scarce and transient gains from mass destruction, dominance, and distrust.