Constitutional Reform and the Problem of Distributive Justice

Abstract

While Americans celebrate the Constitutional Convention of 1787, they are not nearly as enthusiastic about the prospect of another constitutional convention through the Article V process. The stakes would be high, including the possibility of rewriting the entire document. At present, calls for a new convention come much more from conservatives than progressives. Afraid of the risks, many progressives oppose such a convention, with the notable exception of Sanford Levinson, who for decades has railed against its antidemocratic features and adverse political effects. What is absent from the recent scholarship about a convention is a serious discussion about distributive justice. As an alternative to the dominant progressive approach underscoring democratic reform, my focus will be on how to protect the most vulnerable persons from financial insecurity through the constitutionalization of positive economic rights. This article also explains why progressive scholars must appreciate the deliberative and civic educational potential of a convention. For the time being, another convention is highly unlikely to result in meaningful constitutional reform. However, this situation could be a blessing in disguise. A new convention could spark a national conversation about distributive justice and what could be done to reduce economic inequality and alleviate poverty.