Economic Inequality & Separation of the Economic & the Political in Modern Constitutionalism

Gautam Bhatia

The author has won the Ran Hirschl Prize for the Best Article in Constitutional Studies

This essay argues that the relationship between constitutionalism and economic inequality must be understood in the context of the relationship between constitutionalism and political economy. In particular, the concept of the separation of the economic and the political—which undergirds the critique of political economy, and is constitutive of capitalism—is also one of the founding pillars of modern constitutionalism. In constitutionalism, this is achieved and reflected through encoding the public-private divide into constitutional structure and design, and entrenching it through judicial interpretation. Constitutionalism—like capitalism—presumptively divides up the world into the ‘political’ (structured by norms of democracy, equality, freedom, and so on) and the ‘economic’ (which is walled off from an application of these norms, and from the democratic contestation that defines the ‘political’).

While there have been attempts from within constitutionalism to interrogate the separation of the economic and the political—in particular, through the expansion of equality and non-discrimination doctrine, the entrenchment of socioeconomic rights, and the evolution of constitutional horizontality—this essay argues that constitutional design and adjudication have ended up reaffirming the separation rather than meaningfully interrogating it. And while constitutional courts have, on certain occasions, attempted to bring ‘class back into the constitution, these judgments only reflect the gap between the courts’ identification of the problem, and the constraints and limits of the solutions that they are able to propose. We may therefore conclude that, on occasion, constitutional adjudication may mitigate a degree of economic inequality in a certain context, but it is incapable of addressing the root of the problem that is responsible for economic inequality under contemporary capitalism.

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How are we to understand the relationship between constitutions, constitutionalism, and economicinequality? An answer to this question—which has become urgent in an age of heightened awarenessof, and scholarship on, questions around inequality1—I suggest, lies not only in the domain ofdoctrinal constitutional law, but also—and primarily—in the domain of the critique of politicaleconomy. In particular, a good starting point is to excavate the relationship between constitutionsand the “social relations of production.”2

Let me begin with an insight owed to Karl Polanyi. The Constitution of the United States, Polanyi observed in 1944, “isolated the economic sphere from the jurisdiction of the Constitution [and thus] put private property . . . under the highest conceivable protection, and created the only legally grounded market society in the world.”3 While Polanyi’s observation was about the U.S Constitution, its reach—as this essay will argue—is not limited to one constitution in particular, but extends to the contemporary practice of constitutionalism, as it is popularly understood.Elements of this popular understanding of constitutionalism include “legitimation through the invocation of popular sovereignty; the reflection of political relations through representation (of the electorate through office-holders, and of the nation through fictive sovereignty), the domesticationof political conflict through institutionalization; and notional respect for individual rights givenspecificity— and limited applicability— through legal norms.”4

The extension of Polanyi’s insight from the U.S. Constitution to contemporary constitutionalismshould not be particularly surprising. As the first modern written constitution, and as a modelthat has been exported around the world in the two hundred and thirty-six years of its existence,the structure and design of the U.S. Constitution have implications that extend far beyond itshistorical context and origins.Using Polanyi’s insight as a baseline, this essay will consider economic inequality and mod-ern constitutionalism through the lens of the critique of political economy.

In Section 1, I will illustrate how Polanyi’s observation about the ‘isolation of the economic sphere’ signals towardsa phenomenon that has been described as the ‘separation of the economic and the political. Thisseparation, it has been argued, is constitutive of modern capitalism—but ‘also,’ and by extension,of modern constitutionalism.In Section 2, I will argue that the separation of the economic and the political is evident in a number of features of modern constitutionalism—including those that, ostensibly, and—for our pur-poses—most importantly, attempt to transcend it. These include the removal, by design, of ‘class’as a ground of prohibited discrimination in constitutional equality clauses, the tepid framing —and interpretation— of socioeconomic rights, the conscious absence of redistributive mandates, and the textual and judicial guardrails that have been placed around horizontal rights provisions….

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