The Separate but Unequal Constitution

The Constitution should not be a political chess match, and outcomes should not depend on the composition of the Supreme Court. The text’s written and unwritten mandates speak to a single value that should unite jurists of all interpretive persuasions: the people — not legislatures or courts — own the Constitution’s enumerated rights, and have a corresponding right to define those that are not enumerated. But those rights have not been fully realized because the Constitution has been applied in a separate — and unequal — manner. The wealthy have increased access to the political process, the poor are disproportionately affected by the criminal justice system, and the Court has the final say in many matters that should be left to the democratic discourse.

The Constitution does not always guarantee equal outcomes, but it does envision equal access, which is the predicate to an active — and evolving — form of liberty. The Court should embrace a new form of pragmatism that enhances each citizen’s participation in local and national governance, and that eschews overly narrow — or impermissibly broad — interpretations of the text. If the Constitutional cannot guarantee procedural and substantive equality for all, then active liberty and participatory democracy will belong to the few.