The New Inequality: Constitutional Democracy and the Problem of Wealth

In the last several decades, important steps have been taken in the United States to eradicate flagrant discrimination on the basis of race, ethnicity and gender in a variety of arenas. These gains in political equality are being threatened, however, by a dramatic increase in economic inequality. Numerous studies have shown that disparities in income, wealth and opportunity are increasing more rapidly in the United States than in other developed countries. The rising tide of the gap between the wealthy and the poor can be viewed as "the new inequality." This article considers the constitutional significance of the wealth divide. To what extent is the new inequality a matter of constitutional concern? Part I argues that the wealth divide drove key features of the Constitution's architecture and design. I claim that the Framers viewed the wealth divide as a critically important issue; indeed, it was a central feature of the Constitution's political theory at the time of the founding. In particular, I argue that the wealth divide was treated as a matter of deep constitutional significance because such a divide was seen to threaten the very survival of the republic itself. Part II turns to a consideration of the scholarly response to the Constitution, in particular the claim that the Constitution is an elitist document. I consider the views of the Anti-Federalists and a wide range of modern commentators on the Constitution's elitist thrust. I show that the elitist critique is more concerned with the problem of unequal political participation, than with the potentially dire implications of the wealth divide. Part III contends that this focus on the issue of participation takes away much-needed attention from problems involving sustained economic inequality. Although Madison treated the wealth gap as a constitutional issue, his solution did little to ameliorate the underlying problem. The new inequality could pose significant challenges for constitutional politics in the decades to come, particularly if the wealth gap follows current trends and continues to widen dramatically. This article also identifies two additional issues that require further constitutional scrutiny: first, the role of private wealthy citizens in a constitutional democracy; and second, the interplay between political inequality and economic inequality. Lastly, I consider whether the wealth divide should be treated as a constitutional matter at all.

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