The Federalist Society’s Marxist View of the Constitution?

It’s no longer so clear that a strong consensus supports Holmes’ famous dissent in Lochner stating that the Constitution does not embody a particular economic ideology. The Federalist Society‘s recent event, Economic Theory, Civic Virtue, and the Meaning of the Constitution, offers a fascinating glimpse into the growing conservative movement to revise this principle.

Prominent scholars at this event advocated a view of the Constitution that seems to agree with a radical Marxist understanding: that the main point of the Constitution is to advance the economic power of wealthy property owners against the conflicting class interests of workers, debtors, and small farmers (not to mention enslaved persons, women, and indigenous peoples). Charles Beard was right, in this view, to explain the original Constitution was designed to protect elite economic interests. This view helps reconcile the vexing contradictions between conservative support for centralized government protection of certain economic interests (federal preemption of state health and safety regulation, or constitutional limits on punitive damages) despite conservatives’ celebration of states’ rights and decentralization in other instances (limiting Congress’s power to use the commerce clause to protect civil rights, the environment, or to provide health insurance). The core constitutional principle in this view is not to protect the function and order of particular branches of government (state versus federal, legislative versus judicial, individual rights versus majority rule) but instead is to harness all aspects of government and law to protect the interests of wealth over democracy, or as the National Lawyers’ Guild puts it, property rights over human rights.

Of course, while making class conflict the fundamental rule of law, the Federalist Society speakers reach a different conclusion from Marxists: in their view, constitutionalizing oligarchy represents a naturally superior moral and economic order rather than an injustice. The discussion assumed, for example, that so-called “free trade” naturally brings prosperity and justice for all without the need to consider fact, history, or counterargument.

I hope this recent trend inspires further direct scholarly engagement by progressives with the questions of economic ideology and the constitution. Because the mainstream constitutional framework has assumed a simplistic embrace of Holmes’s position of economic neutrality, it has not sufficiently addressed questions raised by both the right and left. Some efforts in that direction include Tim Canova’s work on the Federal Reserve, discussions of labor and the Constitution by Jim Pope and Ken Casebeer, the analysis of labor and race in Athena Mutua’s recent ClassCrits blog entry on the 14th amendment, and my own work on economic class in the new punitive damages limits.