“For American progressives, the Supreme Court has become a maddening institution.” So write Joseph Fishkin and William Forbath in Monday’s New York Times. Their central accusation is that the highest court’s GOP-nominated majority consistently moves the law, and thereby the country, toward oligarchy — the rule of an economically and socially rich few. Instead, Fishkin and Forbath want an interpretation of the Constitution, both on and off the Supreme Court, that demands the redistribution of wealth and social capital.
There are several problems with the case they make.
For starters, they err in arguing that the Constitution approves redistributionist policies. In “Federalist 10,“ James Madison wrote of “the diversity in the faculties of men, from which the rights of property originate.” Humans make use of their abilities, whether of mind or body, in ways that acquire property for themselves. This property might be food, money, or a degree. Madison speaks of this diversity as “different and unequal faculties of acquiring property.” Thus, natural human differences in their capacities will result in unequal property. Does Madison say we then should redistribute that property to keep equality of results among the people? Quite the contrary. He states, “The protection of these faculties is the first object of government.”
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The idea that the current court goes out of its way to instill oligarchy is also wrong. Fishkin and Forbath point to the court’s decision in NFIB v. Sebelius striking down the Affordable Care Act’s requirement that states accept an expanded Medicaid or face loss of all federal funding for existing programs. Yet this outcome did not deny the capacity to redistribute financing of medical care. It merely required that the state’s elected leaders make the decision. Hardly oligarchic, the court’s decision made sure the voters in the states had some say in what their state would do.
The authors also cite Dobbs v. Whole Women’s Health among the Supreme Court’s ills. This case returned power to regular voters and away from the court itself, whose unelected, lifetime tenure smacks much more of an oligarchy than the people and their representatives. Moreover, Dobbs allows for states to put greater restrictions on abortion, a redistribution of power in favor of the unborn — a defenseless group in our society.
Other cases Fishkin and Forbath left out further erode their accusation. In West Virginia v. EPA, the Supreme Court restricted the power of the bureaucracy, returning it to Congress. The bureaucracy is loaded with persons of privilege, both in their social and economic status. Their massive power in the government’s current mode of operating gives them the power to make, enforce, and adjudicate rules over regular people. To diminish their power in favor of the elected branches is anti-oligarchic.
Moreover, the religious liberty cases decided last term, such as Carson v. Makin and Kennedy v. Bremerton School District, pushed against oligarchy. The former decision required equality of treatment by state governments in funding private schools, regardless of religious affiliation. Kennedy protected a coach’s right to exercise his faith in the same time frame that his co-workers used their time for other secular activities.
Finally, Fishkin and Forbath cast fear that the Supreme Court will declare affirmative action unconstitutional. Again, this decision, if the court indeed goes there, would be a strike for equality, not a cementing of oligarchy. Such an outcome would treat all persons equally before the law regardless of race. It would eliminate race-based systems that, however well intentioned, do create oligarchic legal categories grounded in the color of one’s skin, not their inherent equal status as human beings.
We shouldn’t buy that the Constitution is a “redistributist” document or that the Supreme Court is hurling us toward oligarchy. The Constitution equally secures the sometimes-unequal blessings of liberty to all. And the current court has respected those bounds, protecting individual liberty while moving legal interpretation toward greater equality under the law and more rule by regular members of the public. Those are principles to guard, not undo.
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Adam Carrington is an associate professor of politics at Hillsdale College.
