Balkinization: The Founders and Economic Inequality

The Founders and Economic Inequality

Ken Kersch

A huge amount of “popular” constitutional discourse these days – on the internet, on TV, etc. – is constituted by quotations from the Founders. Many of these, of course, are wrenched out of the context, not only of their times, but even of the broader framework of the thinking of the quoted Founder himself, who may actually hold positions directly opposite to those for which he is purported to stand. Most populist originalism takes place on the Right, so it’s not surprising that I’ve come across very little of it that speaks to the Founders concerns with economic inequality. Since, back around the time of Charles Beard, liberals/progressives lost the habit of basing their political arguments on appeals to the (eighteenth century) Founders, much of the originalist discourse of economic inequality is thus missing from contemporary constitutional debate. (To the extent they engage in originalist argument on the theme of equality, liberals – reflecting a preoccupation with race and (later) sex, and not economics -- focus almost entirely on the Civil War Amendments.).

We know from other contexts, though, that there was lots of discussion of economic inequality at the time of the (eighteenth century) Founding. Much of this discussion was constitutional. It won’t do to dismiss these concerns as held only by those “defeated” politically at that time (first, the concerns were more widespread; second, constitutional “defeat” has hardly led people to dismiss out of hand the concern for state sovereignty/states rights, strict legalism, and strict construction, etc. of, e.g., the Anti-federalists -- which, as we well know, lives on to the present day). One of my current pleasures is to get frequent updates on this discussion from the political theorist/intellectual historian Clement Fatovic (a friend from graduate school) who is researching and writing a book (for the University Press of Kansas) on precisely this unduly neglected constitutional discourse.

Here's one nugget, for just a taste. This is from John F. Mercer, a Maryland delegate to the Constitutional Convention, in a 1792 speech in the House of Representatives, about those who hold most of their wealth in stocks:

“A love and veneration of equality is the vital principle of free Governments. It dies when the general wealth is thrown in a few hands. The effect of stocks is to transfer the fruits of the labor of the many, who are able to anticipate its value by the difficulty of acquirement, and would convert it into useful improvement, into the hands of the opulent few, who exchange them for foreign luxuries, and consume in an hour the labor of industrious families for years. It prevents a general diffusion of wealth by drawing it to a centre, and saps the foundation of a Republican Government, especially in a large Continent.”

Mercer went on to say:

“But wealthy stockholders who have lent their money to Government, are interested in no particular spot of land or manufacture. They improve nothing, but take something from all. They are citizens of the world; oftener foreigners than natives; attached to no country. At the first appearance of danger, they sell out, and sink your credit at the moment it becomes essential. As your distresses increase, they fly you. When the impending cloud of misfortune casts its gloom beyond you, these sunshine friends disappear in a moment.”

You won’t find this sort of stuff quoted on conservative websites. It is certainly relevant to contemporary political/constitutional debates. (See also Willy Forbath’s recent Op-Ed entitled “Workingman’s Constitution” in The New York Times).

Jack Balkin has called upon liberals and progressives to avail themselves of originalist analysis, undertaken in the spirit of a “living” constitutionalism. Constitutional history of the sort that Clem is working on suggests that, on these issues, some “dead” originalism might do just as well.

Posted 3:29 PM by Ken Kersch [link]