The Tragedy of Democratic Constitutionalism


In contemporary constitutional jurisprudence, capacious notions of individual liberty are ascendant. Under the First Amendment, due process, takings, nondelegation, and a range of interpretive doctrines, advocates are seeking greater respect for individual liberty, and greater constitutional restraints on the state—increasingly to successful effect. In the name of individual freedom, some demand nothing short of the “deconstruction of the administrative state.” These trends represent an emergent constitutional revolution: the decades-long dominance of the New Deal constitutional model is unraveling. This revolution is occurring at a moment in which the United States faces the most extreme levels of economic inequality it has seen since the Great Depression.

This Article examines the ascendant model, its principal justifications, and its political economy. The Article surfaces three deep and incorrect assumptions of the ascendant vision of liberty: (1) that constitutional liberty means only an autonomy right against state action, (2) that liberty is an unlimited, nonrivalrous resource, and (3) that the Constitution should maximally protect negative liberty in all its instantiations.

About the Author

Assistant Professor, The Wharton School of the University of Pennsylvania; J.D., Yale Law School; B.A., Yale College; Ph.D. Candidate in Law, Yale University.