Plugging the Gap: Material Inequality and the Liberal Constitution

It is possible to identify, across the history of twentieth century constitutional thought, two emerging lines of thought as to how liberal constitutionalism should respond to the challenge of material inequality. One is to accept that constitutionalism cannot and should not attempt to engage with the material inequality challenge, but should instead acknowledge its inherent limits and confine its ambitions to acting as a neutral referee for the robust political contests that inequality brings in its wake. The second is to generate new constitutional norms by using liberal constitutionalism’s normative resources to push back against material inequality. This paper argues that the second approach is superior because it recognises the need to incorporate a social dimension into the partially-autonomous functioning of constitutional systems, and the way that alternative, less equality-friendly values may fill any gap left by the absence of such a social dimension.