Originalism is a two-way street. Judges wishing to interpret the Constitution in accordance with its original public meaning must not import into their decisions policy proscriptions not actually derived from the text and structure of that document. Just as important is that textualism and originalism require judges to give force to all provisions of the Constitution, and not pick and choose which clauses to enforce. Critics have accused the modern Supreme Court of inventing some rights the Framers never intended while ignoring other—express—provisions. Failing to give meaning to clear constitutional text is as great a judicial dereliction as making up bogus…
Ganesh Sitaraman has written an oped in the New York Times arguing that our Constitution was not built for a society as unequal as our has become. Even leaving aside the claim that our society is becoming substantially more unequal—one I have contested, the essay is mistaken. First, the Constitution as amended today empowers the federal government to engage in regulatory redistribution and progressive taxation to reduce economic inequality. Second, the Constitution of 1789 on which Professor Sitaraman principally focuses was consciously built to protect against legislative attempts to mandate more equality. The populist demagogues with whom the Framers were mainly concerned were those who would bamboozle the populous into debtor relief legislation and other wealth destroying schemes that could be sold, just as in our day, as aids to poor and retribution to the rich. Sitaraman misunderstands both our contemporary Constitution and our original Constitution.
After the 16th amendment and the New Deal Court’s interpretation of the Commerce Clause, the federal government has plenary powers of income taxation and regulation. There is nothing to prevent the left wing of the Democratic party from making our income tax code even more progressive than it already is.
A reader asked for more discussion of the Charles River Bridge decision, which I cited as a precedent against claims that taxis displaced by Uber were legally entitled to compensation. Charles River Bridge is a fascinating Supreme Court case that is largely unknown to this generation of lawyers. I remembered it only from discussions in American history class as a high school student.
The case marks the transition from the Marshall Court to the Taney Court. In fact, it was first argued under the Great Chief Justice but decided under Taney. It shows how Jacksonian democracy shifted the course of constitutional law.
The case revolved around bridges and the anti-monopoly principle. The bridges at issue spanned the Charles River in Massachusetts. That first bridge builder, the Charles River Bridge Company, argued that the state had given it a monopoly in return for building its bridge. Thus a subsequent charter to another company for building another bridge violated the provision of the Constitution which bars states from “impairing the obligation of contracts.”
Justice Taney’s opinion based his reading on the original charter for Charles River Bridge company, which he interpreted as not granting any monopoly right. But his interpretation was heavily influenced by his democratic and indeed Democratic ideals.
Last Monday my post celebrated Uber, the car service summoned by phone apps, arguing that this disruptive technology promotes efficiency, helps the environment, and reduces inequality. Some commenters nevertheless suggested that taxis should be compensated for the loss of value to their business caused by Uber.
I do not believe compensation is warranted as a matter of law or policy. First, unless the localities had given taxi services an express contractual or charter right to be the exclusive carriers, permitting entry by Uber would not violate the Contract Clause. That proposition is as as venerable as the Charles River Bridge case where the Taney Court held that a new bridge could be built over the Charles River despite a previous state charter granted to a bridge building company for the same river. Economists have thought this case important to American economic development, because it impeded the establishment of state sanctioned monopolies.
Previously I praised America’s Unwritten Constitution by Akhil Amar and then offered my first reservation about the book. My second reservation is its treatment of economic liberty. Professor Amar sees the greatness of the Constitution in the unfolding of democracy and equality. But economic liberty is also in the Constitution’s DNA and yet he seems to leave it out of the American story.
I also thought unfounded one historical claim, which itself surprising, because Professor Amar is generally very reliable. In a discussion that attacked theories of interpretation that would justify reasoning striking down economic regulation, as in Lochner v. New York, he wrote: “The 1913 ratification of Federal Income Tax Amendment, one of the most notable populist events of the twentieth century, blessed redistributive economic policy by endorsing a tax that everyone understood would likely feature a progressive structure taxing the wealthy at steeper rates than the poor.” One does not have be a libertarian to wonder whether the proposition that this amendment blessed redistributive economic policy in general is an overstatement. In fact, the 16th amendment can be seen as attempt to find an stable source of revenue other than tariffs, which were not only inefficient but often regressive, rather than a general endorsement of redistribution.
In any event, regulatory powers and taxing powers are different constitutional concepts. Economists then and now almost universally see redistribution through taxation as a superior policy, because it does not lead to as much distortion and loss of innovation as does redistribution through regulation. Thus, the 16th amendment cannot be said to extinguish whatever constitutional restrictions there are on redistribution through regulation.
More generally, our Constitution protects economic freedom in many ways.