economic rights

Social Rights—Recap: Economic Rights in Disguise

Risa Goluboff began the Social Rights panel fittingly by posing the "what" question: what are social rights? Are they civil rights, political rights, or civil liberties? As it turns out, what most of the authors in The Constitution in 2020 and what the panelists at the conference were referring to can more accurately be categorized as "economic rights."

 

 Video courtesy of Yale Law School.

 

Goluboff then swiftly introduced a question that would linger throughout the panel: why call these rights, social rights, and not economic rights? In fact, Goluboff suggested that calling these rights, social rights, may doom them from the outset. Historically, social rights have not fared well in America. As part of the nineteenth-century tripartite conception of citizenship, the judiciary refused to enforce social rights, providing them with the weakest protections. In the human rights arena, the Executive, while signing other major rights-based covenants, has failed to ratify the International Covenant on Economic, Social and Cultural Rights.

The second speaker, Jacob Hacker, shifted gears and focused on the "why" question: why should America care about economic rights? Initially, he marshaled compelling statistics to illustrate the surreal stratification in recent years, suggesting that the justification was increasing economic inequality itself. However, it later became clear that the problem was not economic inequality alone. Rather, Hacker's real concern was that economic inequality had resulted in unequal--that is, undemocratic--political representation. Politicians increasingly cater to the concerns of the wealthy, while the voices of lower-income classes have diminished to a "whisper." For Hacker, it was a foregone conclusion that reform must come from the legislature.

The third speaker, Ben Sachs, answered Hacker's invitation to think about the link between economic inequality and political inequality by turning to the "how" question: how should America begin remedying this growing income disparity? Sachs focused on empowering the labor unions as a crucial mechanism for equalizing both economic and political power. Labor unions have the capacity to redistribute a firm's income more equitably to workers, as well as to mobilize and exert sufficient political pressure on the legislature. For Sachs, the best bet for reform lay not in federal legislation, but state and county legislation where the workers' political power exerts its largest influence. (However, that tact would first require reforming federal labor law to free up state and county labor legislation.)

Even if social rights are economic rights in disguise, the panelists seemed to skip from the "why" (economic inequality) to the "how" (the judiciary or the legislature) without addressing the real "what" question--that is, what are economic rights?

Then again, the panelists may not have skipped over anything. For many, the "what" was economic inequality itself. And the "why" consisted of the numerous harms that radiate from economic inequality, whether that was political and racial inequality, or unequal access to health care, housing, and education.

Thus, many panelists and attendees conflated the substance of, and the justification for, economic rights. It seems a worthwhile question to ask which is which.

Are we concerned about economic inequality because it departs from fundamental founding values such as equality irrespective of lineage, and liberty irrespective of class and caste? (Is equality a good in itself?) Or are we concerned about economic inequality because of the myriad secondary harms it reproduces?

While the former lends itself to formulating a principle--a general right to economic equality, the latter lends itself to enumerating a specific list of rights. In terms of methodology, the former suggests we should tackle the problem at its systemic core and address the pariah of political questions: redistribution of wealth. Whereas the latter suggests we should tackle economic inequality from the outside-in via piecemeal reforms addressing each individual secondary harm.

We could be concerned with both questions, and then the key issue may be which approach is more strategic. Indeed, the panelists likely pondered these questions and concluded that addressing the secondary harms would be more realistically achievable in scope and more palatable in avoiding the dreaded associations with excessive regulation, socialism, or worst of all, communism. As suggested during the panel, this calculation probably also resulted in using the label, social rights, as opposed to economic rights.

However, addressing the secondary harms, or even using the term, social rights, leaves open the risk that economic inequality gets lots in the shuffle--that we, for example, address problems of political inequality or access to health care, without ever truly confronting the widening economic gap. There is the danger that we merely soften the blow of economic disadvantage, but sanction it nonetheless.

Finally, even if it is wisest to proceed obliquely, it is debatable which secondary harm is the most crucial to tackle. In William Forbath's piece in The Constitution in 2020, he reminds us that the Fourteenth Amendment was very much written with concern for economic equality in mind, except then it was the "rights of contract and property that were thought to ensure white men the opportunity to pursue a calling and earn a decent livelihood." Personally, when I think of what ensures equal opportunity to pursue a "decent livelihood" today, I immediately think of education, not political representation as Hacker and Sachs did. Education--whether academic, professional, or vocational--strikes me as the main currency (and predictor) for social and economic mobility.

Panel Recap – Roundtable: About the Constitution in 2020

Bringing together four of Yale Law School’s constitutional heavyweights, last Friday’s roundtable discussion was both backward- and forward-looking. Moderated by Duke’s Neil Siegel, the panelists spoke about the Constitution in 2020 as a movement, where it came from and what it aspires to achieve. After Reva Siegel introduced the Constitution in 2020 project, Robert Post spoke on democratic constitutionalism, Jack Balkin examined the purposes of a constitutional theory, Bruce Ackerman highlighted a constitutional concern for economic justice, and all the professors debated the future of the Supreme Court and its appointment process.

 Video courtesy of Yale Law School.

 

Reva Siegel recounted how this "Constitution in 2020" endeavor was instigated in response to a conservative project called the Constitution in 2000. The Constitution in 2000 was a document produced within the Reagan Justice Department in 1988 setting forth favored and disfavored lines of constitutional decisions. The document was a blueprint for change, imagining how a more conservative constitutional terrain could be achieved through judicial appointments and constitutional litigation. It was utopian, but restorative. It was also highly successful. Now it has spawned a responsive vision, the Constitution in 2020 project, which includes conferences, a book, and this blog.

Robert Post followed Professor Siegel, explaining the seeming paradox of “democratic constitutionalism,” one of the constitutional theories at the heart of the 2020 project. “Democratic” evokes politics, the will of the people. “Constitutional” evokes the limits on that political will. But the two are conjoined because a constitution must be democratically legitimate; it must be a constitution of the people. A constitution, given to us by the past, becomes ours through a process of “norm contestations.” Such contestations cause us to read the document differently, and in this way, the cultural values of a generation and that generation’s understanding of the document are linked. For example, the same-sex marriage controversy is being fought in many states, about state laws, but we know that our federal constitution is at stake in these contestations. Such challenges make us reconsider what we think of as part of America’s constitution.

Jack Balkin discussed three basic purposes of a constitutional theory like democratic constitutionalism: (1) legitimation, (2) dissent, and (3) persuasion. When constitutional theories legitimate, they articulate, in a way that people can understand, why what courts, legislatures, or presidents have done is legitimate. Second, when the people in power are not “your people,” you need a theory of interpretation to dissent from what is otherwise decided. Originalism was a classic method of dissent from the early 1970s to early 1990s. Finally, the basic way that the constitution changes over time is that people persuade one another that they are not thinking about the constitution correctly. In this way, an interpretive theory can change constitutional common sense. Appointments are just one piece of the puzzle: changing the constitutional culture through persuasion is more potent.

Finishing up the presentations, Bruce Ackerman distilled the constitutional development of the last two centuries down to two themes: identity (who are we?) and economic justice. These themes have alternated in prominence throughout our history, and Ackerman argued that we should return to a focus on economic justice. Over the last sixty years, we have made a lot of progress on the identity front, but have regressed on the quality of economic life in America. We are a much more unequal society today, economically, than we have been since the Great Depression. Ackerman claims that landmark statutes like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 are part of our constitutional order. Accordingly, he would like to see new landmark statutes on economic justice, environmental issues, and what will happen after the next attack.

Neil Siegel concluded the roundtable by posing questions on the Supreme Court confirmation process and the difference between aspirations and reasonable exectations for 2020 (after all, Justices Scalia and Kennedy will probably still be on the Court in 2020). In response to the first question, Reva Siegel lamented the fact that Americans lack the political vocabulary to talk about how judging is not just politics, but neither is it just impersonal mechanics outside the sphere of discretion.

Professor Balkin responded that the stakes have been increasing with each nomination since the 1980s because the Justices are not leaving the Court with the same frequency. Balkin recommended that the President make an appointment every two years, and if there are more than nine Justices as a result, then the most junior nine should decide most cases.

On the second question—aspirations versus reasonable expectations for the Supreme Court—Ackerman was dismissive, reminding listeners that the Court is historically a laggard in the construction of a new constitutional regime. Brown is a too-memorable exception when the Court took the lead. Reva Siegel reflected on the birth of the Constitution in 2020 project in 2004-2005 and concluded that the country has since changed in ways that were unimaginable then. Change is possible, she reiterated, a fitting and hopeful conclusion to the roundtable.

I will leave you with some questions raised by the panelists’ discussion. Most fundamental to the Constitution in 2020 project: what is the best strategy for changing the constitutional culture? In Professor Balkin's words, how do we take what is off the wall and put it on the wall? Is it through a new constitutional theory, like democratic constitutionalism? Is it through constitutional litigation? Through judicial appointments? Through landmark legislation? Are Article V amendments out of the question? And how central is the Supreme Court to the endeavor? These questions anchored the conference, and the answers we come up with will dictate whether the Constitution in 2020 enjoys the same success as the document that provoked it.

Social Rights

Crosspost from Balkinization

For the past several weeks, I have been puzzling over the nature of the rights that my panel will address at The Constitution in 2020 conference. The panel is entitled “Social Rights”—which echoes the section of the book that I assume we are to discuss. My first instinct was that the panel would be populated with those who have thought a good deal about race, race relations, and racial equality. To my surprise, however, my fellow panelists are people who have thought a good deal about economic issues, labor organizing, and social insurance.  To me, these topics—which are indeed largely the concerns of the “Social Rights and Legislative Constitutionalism” chapters of the book—would more likely come under the rubric of “economic rights.”

My puzzling, then, has largely been about terminology. Two distinct origins of “social rights” come to mind. The first comes from 19th-century American history. The common delineation of rights into the categories “civil, political, and social” in the Reconstruction era is a frequently defining principle not only of that era but of the Jim Crow era that followed. Within that tripartite conception of rights, civil rights meant those commonly protected by the common law: rights to contract, hold property, and protect one’s property in a court of law. Political rights concerned the relationship of a person to his or her government, largely involving voting but also at times jury service. Social rights, finally, referred to rights to interact in the ordinary settings of social life, to choose one’s place in a restaurant, a neighborhood, a school.

Protection of African American rights in the wake of the Civil War and Reconstruction generally waned as one descended the ladder from civil to political to social rights. Civil rights received the earliest and most vigorous (albeit still inadequate) protection. Political rights faced greater contestation, and greater evisceration, but still found some basis in the Constitution. Social rights were the runt of the litter. As the Supreme Court made clear in its infamous decision in Plessy v. Ferguson, social rights were beyond constitutional redress. Indeed, some would have said that the essence of a social right was precisely its inability to be remedied at law. The understanding of the time was that labeling the right to sit in a particular railroad car a social right removed it from the realm of enforceability.

These labels were, of course, always fuzzy, slippery, and contestable. And they changed over time. In the 1930s, civil rights became associated closely with labor rights and rights to economic security. In the 1940s, such rights seemed constitutionally salient and possibly attainable. Social rights, however—like the right to integration—remained largely beyond the pale. Once rights that had been thought of as social rights began to gain traction in courts and legislatures, the nomenclature changed. No longer did we speak of “social rights.” They somehow became transformed, along with newly enforced political rights, into a unified category of “civil rights.” It would be too simple to say that “civil rights” encompasses those rights that are generally viewed as enforceable. But it does seem fair to observe that once social rights became protectable, they also ceased in important ways to be understood as social rights.

My second association with the term “social rights” comes from the international human rights context. There is a robust and growing literature on the relationship between American ideas about rights and international ideas about rights, between “civil rights” at home and “human rights” abroad. Much of this literature emphasizes how stingy the American conception of rights is. In response, scholars and activists have sought to expand American conceptions of rights by integrating broader understandings of international human rights into the domestic context.

This origins story refers to the kinds of “social rights” included in the International Covenant on Economic, Social and Cultural Rights—rights to work, housing, health care, social insurance, education, and the like. In the international human rights context, “economic, social and cultural rights” or “ESC rights” stand in sharp contrast to “civil and political rights.” These two categories of rights each has its own international covenant, its own monitoring committees, and its own orbit. Moreover, each has its own distinctive political salience. Although the United States has ratified the International Covenant on Civil and Political Rights (with exceptions, of course), it has never ratified the International Covenant on Economic, Social, and Cultural Rights. Indeed, the existence of the two conventions was a product of differing international opinions about the desirability and enforceability of economic, social, and cultural rights.

What has all this to do with The Constitution in 2020? A lot, it seems to me. A major theme of the chapters in the “Social Rights and Legislative Adjudication” section of the volume is the judicial unenforceability of “social rights.” With some minor exceptions, the authors of these chapters have largely given up the possibility of constitutionally based, judicially enforced rights to work, housing, health care, social insurance, and education. Some still retain a shred of hope for judicial involvement in the provision of such goods, others despair that such time has come and gone, and others affirmatively seek legislative alternatives. But overall, the view that these rights are consigned to the political branches is rather overwhelming.

On one level, I was surprised by this surrender. The Constitution in 2020 is an ambitious volume, reimagining a progressive Constitution for the future. Whatever the relative merits of legislative versus adjudicative constitutionalism, one might expect an aspirational, progressive project to include a more robust commitment to some form of constitutionally enforceable economic rights.

On another level, however, I was not surprised.  The section of the book and the title of my panel—with its nomenclature of “social rights”—already tells us that these rights will be different.  Whatever the origins of “social rights” they share one fundamental characteristic: they are unenforceable. Perhaps “social rights” sounds more palatable than the still-Communist-inflected “economic rights.” Perhaps it sounds more malleable and open to debate than “positive rights.” I imagine there are good reasons to use the term. Even so, I cannot but conclude that any attempt to provide judicially enforceable rights to the kinds of goods encompassed by the term will face as their first and most enduring obstacle the term itself.
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Risa L. Goluboff is Caddell & Chapman Professor of Law and Professor of History at The University of Virginia School of Law. She will be appearing on Saturday's "Social Rights" panel with Jacob Hacker (Yale University, "The Democratic Case for Tackling Economic Inequality") and Benjamin Sachs (Harvard Law School, "Locating Union Rights").

A Guide and Comment on Forbath’s "Social and Economic Rights in the American Grain"

     While it is important to ponder our constitutional future, I often think that the story of our future is in large part the story of our past. Narratives legitimize our future plans.  Narratives allow people to see constitutional changes not just as “good,” but good for them, and not just as “right,” but in accordance with a collective, American sense of right. In his contribution to The Constitution in 2020 (“Social and Economic Rights in the American Grain,” chapter 6), William Forbath tackles this challenge directly, outlining a new narrative to reestablish positive social and economic rights. As future-oriented as his project may be, he’s heading toward the future through a sort of archaeology of the past, attempting to unearth a tradition of “American social citizenship” that has been largely buried beneath a dominant narrative of laissez-faire. From Forbath’s standpoint, this buried narrative “is at least as resonant today as its laissez-faire rival,” a narrative that underwrites equal distribution of opportunities and life chances, or, in his words, an equal distribution of “the initial endowments and security (like education and health and old-age insurance) necessary to take risks and fulfill personal responsibilities and citizenly duties.” 
    If Forbath is right – that there is more than one American constitutional tradition – then the true question we need to ask is whether Forbath’s narrative could successfully stimulate future progressive constitutional change.  In the movement for change - in the newspapers, on the internet, in interviews, in conventions, and on the congressional floor - will Forbath’s story resonate with the American people?  My answer is a qualified yes. But here the positive rights that Forbath envisions have to take on a uniquely American character.  And, by “American,”  I mean that these rights will have to pay heed to market principles, be compatible with economically smart policy, and avoid court-centered enforcement.

Positive vs. Negative Rights

    At the core of Forbath’s essay is the decades-old positive-negative liberty distinction. Forbath argues that, in the 21st century, social and economic rights must be positive rather than negative.  A positive right obliges the government to provide a good or service. A practical example of a positive right would be a constitutional right to housing, which would oblige the government to take the affirmative step of procuring housing for those who could not provide it for themselves.  Meanwhile, a negative right protects an individual against some form of interference by others. Perhaps the classic negative right is the right to property, which, in its strongest forms, bars the government and other citizens from interfering with an owner’s right to use his/her property as he or she sees fit. Forbath argues that in the past, negative rights were sufficient to provide equal opportunity.  Negative rights were social and economic rights.  However, now social and economic rights must expand to include both negative rights and positive rights. 

Positive Rights in the American Grain

    A. American Love of Markets and Negative Rights

    Forbath’s narrative can resonate with the American people.  But I believe that for positive rights to succeed at any large scale in America, they will have to be of an American character. Our picture of positive rights comes from across the Atlantic, where they have long been experimented with by European democracies.   At the risk of generalizing (but bear with me), Europeans have often viewed their rights as trumps, believing that a citizen may assert his or her right even if this assertion prevents the state from achieving important policy goals.  For example, in France, President Jacques Chirac attempted to give employers greater discretion to fire their employees in order to improve job mobility and, by extension, the greater French economy.  American employment markets are much freer than French markets and this was a tentative step in the American direction.  French students protested until the policy was retracted.  Western European country’s generous welfare, unemployment, and health insurance programs are also increasingly under attack as economists point out that Europe’s growth has been stymied by the high taxes that fund these programs. 
     While Americans may begin to yearn for positive rights, they are still attached to their negative rights, to their American freedoms. In the American context, positive rights must pay greater heed to free market principles.  For example, there is no serious proposal to establish a health care plan like Canada’s or Britain’s, in which the government is the sole administrator of health care.  Rather, proposals focus on subsidizing patients’ payments or creating a government system to compete with private providers.  While these proposals still depart considerably from strict laissez-faire, they still reflect a faith in the great organizing power of markets.  Indeed, many of Obama’s aides are disciples of the Chicago free market school, which seems to color their particular approaches to policy innovations.

     B. Rights as Good Policy

      Americans will fight for their rights because it is good policy, because it is necessary for a strong and vibrant American economy.  Americans will fight for health care because its high cost is eating up an increasing proportion of American GDP.  We will fight for quality schools because only an educated America can compete in the global information economy.  These points sound cliché because they are part and parcel of the American rhetoric behind the recent push for positive rights.  Where positive rights are more likely to slow the economy, Americans will hesitate and sometimes refuse to enact them.

    C. Rights in the Courts

    Whatever their specific content, American positive rights shouldn’t be created by the courts.  Forbath’s long-time intellectual sparring partner, Frank I. Michelman, has argued that court-centered constitutional rights should be narrow, “meaning that they don’t sweepingly preempt major public policy choices from the ordinary politics of democratic debate and decision.” The appeal of Michelman’s argument for narrowness is pretty obvious:  Broad social and economic rights might force courts to strike down legislation Congress deemed necessary to protect the economic health of the nation.
    Even Forbath will concede this point. In “Social and Economic Rights in the American Grain,” Forbath reminds us “many of our most important constitutional battles are fought outside the courts in movement building, public debate, and legislative and policymaking arenas.”  Unlike the courts, these other entities do not have to formulate detailed legal principles and guidelines. Nonetheless, key principles guide and temper their discussion.  Forbath’s hope is that positive social and economic rights will replace laissez-faire principles as a key driving force in public discourse.

Conclusion

     Whether Forbath’s hope is fulfilled depends on us, on whether we communicate, frame, and sell our progressive ideas as the next step in the advancement of American freedom.  In our discussions in law classes, in ACS committees, and with family, will we demand health care as an individual right with an attitude of entitlement?  Or will we show how health care and family leave enhance our freedom and lead to the realization of shared American policies and goals?  Should health care be paid for through higher taxes, or through greater savings  and efficiency?  Do we want a European single-payer plan or a restructuring of the market to promote better competition?  Paradoxically, a progressive future will only arrive if we can connect it to the American past.

   
   
     

 

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