William E. Forbath: Workingman’s Constitution

William E. Forbath is a professor of law and history at the University of Texas.

WORK and opportunity, poverty and dependency, material security and insecurity: for generations of reformers, the constitutional importance of these subjects was self-evident. Laissez-faire government, unchecked corporate power and the deprivations and inequalities they bred weren’t just bad public policy — they were constitutional infirmities. But liberals have largely forgotten how to think, talk and fight along these lines.

And they’ve done so at the wrong time. The Supreme Court is again putting up constitutional barriers against laws to redress want and inequity. While it handed liberals a victory on the Affordable Care Act, it also gave a boost to conservatives to revive the old laissez-faire Constitution in the polity and courts: new doctrine and dictums for their attack on the welfare and regulatory state.

But there is a silver lining for liberals as well: in much the same way that the conservative court of the 1930s forced Franklin D. Roosevelt and his allies to construct the constitutional foundations of the New Deal state, today’s court challenges the White House, the Democrats and the liberal legal community to reassert a constitutional vision of a national government empowered “to promote the general Welfare” and — in Justice Ruth Bader Ginsburg’s terse formula — “to regulate the national economy in the interest of those who labor to sustain it.”...