Fair value of equal political liberties is a key precondition for the legitimacy of a regime in liberal thought. This guarantee is breached whenever a group is consistently locked out of power. Given the convertibility, subtlety, and resilience of power, gross material inequality—produced by neoliberal economic policies—effectively locks the relative poor out of political power. Neoliberal democracies, sooner or later, become plutocracies. This is a concern not only for liberal political theory but also for liberal constitutionalism. The usual objections to a constitutional concern with gross inequality and plutocracy provide useful design instructions, but do not rule out the constitutionalisation of egalitarian and anti-plutocratic norms. This paper clarifies how the whole panoply of legal and political constitutional measures— drawn from liberal constitutional thought and worldwide practice —could be marshaled to effectively promote material equality and prevent plutocracy.
This paper is a component of a broader project on the social dimension of the rule of law. It is widely known that inequality can produce social effects that place strains on the rule of law – corruption, political tension or strife, rule by decree, and so on. The question in this paper is whether this tension is accidental or intrinsic. In other words, does a severe amount of economic inequality necessarily result in an erosion of rule of law principles? If the answer were yes, it would be surprising, for the rule of law is employed centrally by neoliberal thinkers. This paper will argue against them that there is an all but necessary connection between severe instances of economic inequality and violations of the rule of law. Grave inequality itself is incompatible with the rule of law not mainly because it produces corruption and social unrest, but especially because it creates relationships of dependence and arbitrary power that are anathema to rule of law values.
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.
In the United States, the Prohibition Amendment is widely regarded as a constitutional mistake that was rightfully corrected by the repeal amendment thirteen years later, and the experience of the Prohibition period (1920-1933) is often taken to demonstrate the failures of using law, particularly constitutional law, to transform social norms. This paper challenges that conventional view. It demonstrates that the women’s movement for Prohibition sought constitutional changes which had the effect of reducing the sources of women’s subordination. While Prohibition did not last, many of the other reforms that were facilitated by the women’s Prohibition movement did – a higher age of consent (16 in almost every state by 1920), married women’s right to their own earnings, female reformatories and women’s prisons. The actual history of the Prohibition movement thus challenges prevailing American views about the relationship between constitutionalism and social transformation.