Economic Inequality and the Separation of the Economic and the Political in Modern Constitutionalism Gautam Bhatia∗ Abstract
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.
Countries with very different constitutions may have the same political economy. Speaking generally, there is no relationship whatsoever between the two. During a total War, the political economy will change completely. The Constitution may not be suspended, but may work in a very different manner than previously.
In particular, the concept of the separation of the economic and the political
There is no such separation. Politics deals with collective action problems which have an economic component if scarce resources are involved.
—which undergirds the critique of political economy,
There are many different critiques. In none is the economic separated from the political.
and is constitutive of capitalism
markets, even if illegal or unacknowledged by the law, constitute Capitalism provided investible resources are allocated through them.
—is also one of the founding pillars of modern constitutionalism.
Which is utter shit.
In constitutionalism, this is achieved and reflected through encoding the public private divide into constitutional structure and design, and entrenching it through judicial interpretation.
Nobody has ever done any such 'encoding'. Constitutional structure and design are historic. Their interpretation by the Bench may involve assumptions about how the world works. But what is entrenched by judicial interpretation is expectations re. what courts are likely to decide and therefore what the current 'rule-set' is. However, the justice system may be disintermediated for many purposes.
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’).
No. The political realm pre-exists as the set of methods used to solve collective action problems. The economic realm pre-exists as the set of mechanisms which allocate scare resources. All political questions are also economic questions provided opportunity cost arises. Few economic questions are political because there are no externalities or other sources of market failure.
While there have been attempts from within constitutionalism
cretinism
to interrogate the separation of the economic and the political—in particular, through the expansion of equality and non-discrimination doctrine,
i.e. magical thinking
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.
Magical thinking ends up reaffirming that magic doesn't work. It completely fails to interrogate the cat regarding howcome it has nine lives.
And while constittional courts have, on certain occasions, attempted to bring ‘class back into the constitution,
This can be done by saying that people of specific classes have extra immunities or lower liability. The Soviet Union held that 'class origin' should be reflected in sentencing. A proletarian should receive less punishment than a bourgeois cunt. Previously there were periods when the educated had 'benefit of clergy' or the aristocracy had considerable immunity from arrest.
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.
Courts aren't omnipotent. Speaking generally, there are strict limits on what they can do. There is little point pretending that shitty lawyers can get Judges to create an utterly shit Utopia.
Batty Bhatia's blog has plenty of articles where he screams his tits off because some Judge has passed a sensible order instead of doing stupid shit.
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.
No one has ever suggested otherwise. The Law is a service industry. It can create remedies under a vinculum juris, but unless it is incentive compatible to provide the remedy, it will be severely rationed or be merely cosmetic.
'Contemporary Capitalism'- like every other system of allocating scarce resources- either has income inequality by reason of incentive compatibility or else faces relative, or even absolute, decline.
How are we to understand the relationship between constitutions, constitutionalism, and economic inequality?
In the same way as we understand the relationship between cats, cabbages and economic inequality. A place without cats, cabbages, or a consititution may have little or great economic activity. But so may places with lots of cats and cabbages and constitutional lawyers.
An answer to this question—which has become urgent in an age of heightened awareness of, and scholarship on, questions around inequality—
if by 'scholarship' you mean hysterical shite- sure.
I suggest, lies not only in the domain of doctrinal constitutional law, but also—and primarily—in the domain of the critique of political economy.
Which this cunt can't do because Econ is a mathematical Social Science.
In particular, a good starting point is to excavate the relationship between constitutions and the “social relations of production.” Let me begin with an insight owed to Karl Polanyi.
a cretin. His brother, the chemist, was smart and made some contributions to Econ.
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.”
This was clearly false. England already had a 'legally grounded market society'. Polanyi, an immigrant, thought that the Speenhamland system was the rule, not the exception. The truth was, application was patchy & most of the labour market was wholly free. Much depended on how much rate-payers were able or willing to pay. When the French threat was great, about 23 percent of the English rural population got some form of 'outdoor relief'. But in the North, it was about 10 percent. The economic motivation was to keep together the agricultural workforce. The problem was that those who benefitted from the Corn Law weren't taking a proportionate share of the burden of subsidising bread.
While Polanyi’s observation was about the U.S.
it was wrong.
, 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.
The whole thing is a crock of shit based on stupidity and ignorance.
Elements of this popular understanding of constitutionalism include “legitimation through the invocation of popular sovereignty;
or Allah or Lord Ram or Rahul Gandhi's skid-marked chaddi.
the reflection of political relations through representation (of the electorate through office-holders, and of the nation through fictive sovereignty),
India's Sovereignty is real enough
the domestication of political conflict through institutionalization; and notional respect for individual rights given specificity—and limited applicability—through legal norms.”
The Law is a service industry. The remedies it provides are likely to be rationed.
The extension of Polanyi’s insight from the U.S. Constitution to contemporary constitutionalism should not be particularly surprising.
We are not surprised that cretins quote a cretin.
As the first modern written constitution,
In England that was Lambert's The Instrument of Government (1653)
and as a model that 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 its historical context and origins.
The US has dual sovereignty but it was watered down after the Civil War. Since the US has changed so much, interpretation of its Constitution too has changed. In recent years, POTUS & SCOTUS have more power relative to Congress. Maybe that will change.
Using Polanyi’s insight as a baseline, this essay will consider economic inequality and modern constitutionalism through the lens of the critique of political economy.
Coase/Posner 'Law & Econ' is the right lens.
In Section 1, I will illustrate how Polanyi’s observation about the ‘isolation of the economic sphere’ signals towards a phenomenon that has been described as the ‘separation of the economic and the political.
There was a separation of church and state. But as time went by the Constitution increased the economic power of elected politicians.
This separation, it has been argued, is constitutive of modern capitalism
which is industrial and based on global financial markets. However there is Government oversight.
—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 purposes—most importantly, attempt to transcend it.
Paranoia causes people to make this sort of argument.
These include the removal, by design, of class’ as a ground of prohibited discrimination in constitutional equality clauses,‘
Things are designed so as to make them fit for purpose. It is reasonable to exclude 'class' so as to prevent a flood of law-suits.
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.
Why is the Law not utterly mad? Is it because it would be disintermediated and thus lawyers would be unemployed if the Law did too much stupid shit.
In Section 3, I turn to comparative constitutional doctrine. Drawing on cases from the constitutional courts of South Africa, Canada, Kenya, and Colombia,
why not Estonia? Class is a protected category but the effect is limited. I believe property and social status is covered in the private sector but only for conciliation procedures handled by the Chancellor of Justice.
I show how courts, on occasion, attempt to bring ‘class back into the constitution’ and in doing so, illustrate both the potential, but also the limits, of constitutional interpretation as a corrective to economic inequality.
The legislature and executive have superior powers in this respect. It is foolish to try to make the Bench serve a purpose for which it is ill equiped.
I conclude with the following question: if constitutional interpretation and adjudication leave intact the basic structure of the economy within which constitutions are embedded,
just as Doctors and plumbers do
is it ever possible to ‘solve’ the problem of economic inequality within the framework of modern constitutionalism?
Sure. Let the Legislature and the Executive get on with it. The Bench only comes into the picture if an act is ultra vires.
The Separation of the Economic and the Political Polanyi’s insight about the ‘isolation of the economic sphere’ from the U.S. Constitution has substantive explanatory purchase. Historical research has shown that at least one of the motivating factors for the framing of the U.S. Constitution—as reflected in its structure and design—was to protect property owners from ‘over-zealous’ colonial state legislatures that were enacting farreaching redistributive legislation.
Since 'dual sovereignty' was weighted in favour of the States there was nothing the Federal Government could do about this. Since, 'redistributive' policies (favouring debtors) were inflationary and harmed commerce, the Constitutional Convention of 1787 curbed state powers and prohibited states from emitting their own paper money, making anything other than gold or silver coin a tender in payment of debts, or passing laws impairing the obligation of contracts. This followed Shay's rebellion. The fear was that the new country would degenerate into anarchy. Since Americans could move West, the political impetus for redistribution was blunted. However, at a later point there was a 'homestead exception' protecting the assets and livelihoods of poorer debtors.
This motivation was to be given judicial imprimatur a century later in The Civil Rights Cases, where—albeit in a slightly different context—the U.S. Supreme Court noted that it was not the task of the Constitution to “adjust the social rights” of individuals vis-à-vis each other.” While parts of The Civil Rights Cases have since been overruled, and the power of the U.S. Congress to intervene in the “private sphere” and enact (limited) antidiscrimination legislation affirmed, the force of Polanyi’s observation has not been blunted.
Why isn't the US a Marxist dictatorship? The answer is that Americans saw that income inequality drove rapid economic growth which, in turn, meant higher absolute material standards of living. There is a separate 'Georgeist' reason for raising taxes on 'economic rent' because there is a much smaller disincentive effect. The trouble is, nobody can be sure that only rent is being confiscated. Let us see it the proposed billionaire tax takes off.
Is Polanyi’s observation, however, limited to a historically contingent event—the framing of the U.S. Constitution, and its subsequent interpretation?
It was simply false. There were indentured servants in the US. The British Passenger Vessels Act 1803 made ship travel more expensive, and an 1833 US federal law abolished debtor prisons, which meant masters could no longer easily prosecute or jail runaway servants. In England laws were passed in 1813-1814 which ended something similar with respect to Servants in Husbandry & Compulsory Apprenticeships. However, it was only in 1875, some ten years after the US, that the UK fully outlawed any type of civil compulsory servitude.
I would suggest not, as it closely tracks an idea that scholars engaged in the critique of political economy have been articulating for some time: that is, the ‘separation of the economic and the political’ in capitalism.
Which is Commie propaganda. Did you know that Elon Musk is actually a starving slave? This is because he is the employee of a private company.
The separation of the economic and the political refers to the argument that under capitalism, “the social functions of production and distribution, surplus extraction and appropriation, and the allocation of social labour are . . . privatized and they are achieved by non-authoritative, nonpolitical means” (as distinguished, for example, from feudalism, where accumulation, in the first instance, depends directly upon violence).
True freedom can only be found in the Gulag- right?
State coercion exists, of course—for instance, under the euphemism ‘the enforcement of contracts’ (or even, more basically, the enforcement of trespass laws in defense of the absolute right to private property).
Why are people not allowed to sodomize batty Bhatia? Is the law homophobic as well as being Capitalist?
But, as the argument goes, it is only required when there is a breakdown in the relationship between juridically free and equal contracting individuals.
i.e. guys like me. Nobody bothered to chase me for money I owed because I would threaten a counter-suit of a frivlous kind and thus it was obviously a waste of time and money. The truth is, getting a bloke declared bankrupt may benefit him more than it does the creditor.
And existing separate from this ‘private sphere’ of economic freedom is the sphere of the political, and the state, constituted by principles of public law and right.
Constituted by people who, for whatever reason, are trusted to solve collective action problems. They may wholly ignore both law and morality.
The critique of the separation of the economic and the political under capitalism stems from Karl Marx’s insight that the sphere of economic production is constituted by a set of ‘social relations.’
It clearly isn't in our globalised, high-tech, world. Market relations may have no social aspect whatsoever.
The formal and juridical freedom of wage-seeking workers, to enter into formally and juridically equal contracts with the owners of capital,
the borrowers of capital would be more accurate. Many enterprises are highly leveraged.
obscures the actual differences in power and the relations of domination between them, differences that are entrenched within legal and political forms (such as property ownership).
Bosses tell workers what to do. That's tyranny!
In the domain of constitutionalism, and drawing on prior scholarship, I have recently argued that modern constitutionalism is structured by the public-private divide (something that I have referred to as ‘default verticality’),
A private organisation may be held to be a public entity if it discharges a function undertaken by the Government.
and that this structure is founded upon three assumptions: that of unitary sovereignty,
America has dual sovereignty
abstract freedom,
if it is justiciable, it is concrete.
and equal individual responsibility
there is no such doctrine. Speaking generally, a higher duty of care (culpa levis in abstracto) is expected of the bonus paterfamilias.
(the last of these draws from the insight, noted above, of ‘formally’ free and equal individuals who shape their relationship with each other through the mechanism of the contract).
An unfair or oppressive contract may be struck down as unconscionable.
Batty Bhatia cites various Leftist Law Professors who remain puzzled as to why Courts haven't created a Communist dictatorship.
Why have I undertaken this journey through the evolution of constitutional non-discrimination provisions, and their accompanying theories? I have done so to illustrate a persistent absence: the absence of class.
It is there in Estonia. The Soviet Union started off with making class a key issue in the 1919 Guiding Principles of Criminal Law but this was dialled down, more particularly in the post-Stalin phase of Communism.
If Class is absent, chances are including it would be onerous or otherwise mischievous. If you multiply legal grounds for suits between private parties- e.g. my suing you for not inviting me to your birthday party just because I iz a poor bleck person whereas you are slightly less poor and not quite as dark- then a nuisance is created. There is likely to be a backlash.
Governments and Big companies may keep track of court decisions in discrimination cases and this may lead to better behaviour. Equally, it may lead to their spending more on lawyers and less on investment with the result that everybody becomes worse off.
Conclusion The starting point of this essay is the question of how modern constitutionalism can deal with the problem of economic inequality.
It can support the Executive and the Legislature in doing sensible things to raise up the poor. This militates for an expanded doctrine of political question.
The question, however, has a deeper dimension: in other words, the question of economic inequality cannot be answered without examining modern constitutionalism from the lens of the critique of political economy.
i.e. obsolete Marxist shite.
From the mid-twentieth century onwards, we have seen attempts from within constitutionalism to interrogate and challenge the separation of the economic and the political.
We have seen a lot of Nationalization and Government interference in the economy through Exchange Control, Credit Rationing, Industrial policy, Manpower policy, Regional policy etc. Sadly, this led to stagflation & thus a reaction towards freer markets.
I consider three of the most prominent such attempts: the expanding scope of doctrines of non-discrimination and equality,
which degenerated into Woke shite or Human Rights shite
the jurisprudence of socioeconomic rights, and the evolution of horizontality. I argue that while each of these developments may carry the potential of interrogating the separation, they have not done so.
Because Marxism & Critical Legal Studies & other such paranoid shite is shite.
Doctrines of non-discrimination—including their intersectional variants—have and continue to exclude class as a ground of analysis.
Also ugliness.
We may therefore conclude that,
the Law is a service industry. If it does stupid shit, smart people disntermediate it. In India this means you contract in another jurisdiction.
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.
Also, the Bench has signally failed to abolish death. Why? Is it because the Judges are being bribed by the Undertakers? I suppose so. Batty Bhatia should write an article about this glaring injustice.
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