Constitutional Economic Justice: Structural Power for We the People

Abstract

It is time for an ambitious constitutional vision of economic justice.1 Since the end of the Lochner era, the prevailing constitutional narrative has taught that the Constitution generally should leave economic policy decisions to the legislative and executive branches. That structural theory treats economic jus­ tice as discretionary, separate from and subordinate to fundamental constitu­tional protections for political and civil justice. At most, that narrative supports constitutional protections against economic inequality as narrow exceptions subject to careful scrutiny and constraint.