Forbath

2020 News

The newest addition to the site is our "2020 News" page, where you can catch news items related to The Constitution in 2020. Up now are streaming videos from this summer's National Press Club event (featuring Walter Dellinger and Mark Tushnet) and ACS Convention (featuring William Forbath, Rachel Moran, Larry Kramer, and Vicki Jackson), as well as a podcast of Jack Balkin's interview on KERA (Dallas).

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.

   
   
     

 

2020 Readings -- Staff Picks

Readers interested in delving into other sources that comment on 2020’s main themes should regularly consult our 2020 Readings section, where we’ll be actively compiling (with your help, of course) works that will be useful for creating specially themed reading groups, crafting research projects, or creating your own personal reading list. For starters, the 2020 staff recommends the following:

Amy Chua, WORLD ON FIRE: HOW EXPORTING FREE MARKET DEMOCRACY BREEDS GLOBAL HATRED AND INSTABILITY (Anchor Books, 2003)
Relevant 2020 Section: State, Nation, World
 
While progressives often envision a world of constitutional democracies, our efforts to bring such a world to fruition have often been disastrously unsuccessful. As we re-gather after Iraq and begin to devise a foreign policy more in line with our constitutional commitments, this insightful book warns of the dangers of cookie-cutter approaches to promoting democracy and economic development, while also providing useful and sophisticated ideas for moving forward. Chua's world-spanning study informs our understanding of the possibilities and limits of free-market democracy in the developing world. -L.P.N.
 
Jedediah Purdy, BEING AMERICA: LIBERTY, COMMERCE, AND VIOLENCE IN AN AMERICAN WORLD  (Random House, 2003)
Relevant 2020 Sections: State, Nation, World; Citizenship and Community; Democracy and Civil Liberties
 
A rich and compelling commentary on how America is envisioned at home and abroad -- told through a journey in the months after September 11, 2001.  Purdy travels through Asia, Africa, and America and captures the stories of activists and ordinary people who express mixed resentment and admiration for America.  His reports are interwoven with intellectual voices from the past, including James Madison, Edmund Burke, and Adam Smith, to help explain America's legacy of freedoms and prejudices.  A lucid, provocative, and deeply inspiring companion for anyone who has come of age in a post-9/11 world and seeks to articulate a progressive vision for America. - V.K.
 
Yochai Benkler, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM (Yale University Press, 2007) (available for free download here)
Relevant 2020 Sections: Democracy and Civil Liberties; Social Rights and Legislative Constitutionalism; State, Nation, World

An examination of networks, social production, and other recent developments in the creation and distribution of information.  Benkler analyzes the implications and possibilities of information policy through economic, social, and political lenses. He also asks us to consider what binds us together -- exploring concepts like "society" and "culture," in addition to more traditional tenets like "autonomy" and "democracy." Interestingly, when it comes to social production, Benkler practiced what he preaches: prior to its publication, The Wealth of Networks was available on a Wiki page where people were able to read chapters and contribute their comments, analysis, etc. – S.G.
 
David Feige, INDEFENSIBLE: ONE LAWYER'S JOURNEY INTO THE INFERNO OF AMERICAN JUSTICE (Little, Brown and Company, 2006)
Relevant 2020 Section: Democracy and Civil Liberties
 
An authentic account of big-city criminal justice. Feige, a former public defender with New York's Legal Aid Society and the Bronx Defenders, spins courtroom tales that ring true to anyone who knows the system and may shock those who don't. Indefensible is required reading for anyone who believes in due process of law. -- D.W.
 
Susan H. Bitensky, “Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis,” 86 NW. U. L. REV. 550 (1992)
Relevant 2020 Section: Social Rights and Legislative Constitutionalism
 
Bitensky’s article gives an overview of the American education crisis in the early nineties, analyzes current rights to education, and then explores a number of theories for a positive right to education under the United States Constitution.  Recommended as an overview of case law-based theories to an education right. – T.L.
 
THE FORBATH-MICHELMAN DEBATE
Relevant 2020 Sections: Social Rights and Legislative Constitutionalism
 

  • William E. Forbath, "Caste, Class, and Equal Citizenship," 98 MICH. L. REV. 1 (1999)

            An expanded and detailed exploration of Forbath's argument for social citizenship. In an attempt to  remember and reconstitute a forgotten progressive past, Forbath traces the     history of the concept from the founding to the present, showing its deep American historical heritage.
 

  • Frank I. Michelman, "Democracy-Based Resistance to a Constitutional Right of Social Citizenship," 69 FORDHAM L. REV. 1893 (2001)

             In this brief comment, renowned constitutional theorist Frank Michelman lays out precise and illuminating criticisms of William Forbath's argument for social citizenship rights.  Michelman is just the right man for the job too, since Forbath's argument for social rights is a direct response to Michelman's theory of constitutional welfare rights.  Michelman has an intimate feel for the stakes in the debate and how small distinctions can have radically different implications.
 

  • William E. Forbath, "Not So Simple Justice: Frank Michelman on Social Rights, 1969-Present" (2004), 39 TULSA L. REV. 597

              William Forbath strikes back: another chapter in the long running debate between Michelman and Forbath on social citizenship rights.  Forbath traces Michelman's evolution on social citizenship rights and challenges his reader to imagine the Constitution in 2020 where each citizen has a right to health care, education, and work. – J.B.


Terry Eagleton, REASON, FAITH, AND REVOLUTION: REFLECTIONS ON THE GOD DEBATE (Yale University Press, 2009)

Relevant 2020 Section: Protecting Religious Diversity

Preeminent British literary critic Terry Eagleton intervenes in the increasingly strident post-911 debate about the relationship between faith and reason in a democratic society. While everyone seems to know where evangelicals stand politically, the politics of the “New Atheism” have been less clear. In their rejection of the worship of the past, the New Atheists may appeal to those anxious about “atavistic” right-wingers and Republican wars on science. Eagleton troubles this allegiance between left politics and science when he denounces the New Atheism as an essentially right-wing phenomenon, and calls for the Left to distance itself from a technocratic style which he sees as typifying the elite political and cultural consensus. – J.K.

 
William Galston’s “Two Concepts of Liberalism,” 105 ETHICS 516 – 34 (1995)
Relevant 2020 Section: Protecting Religious Diversity

Liberals have often assumed the compatibility of important goals such as protecting diversity and promoting individual autonomy.  But what happens when these legitimate values conflict?  Using religious free exercise cases to frame his discussion, Galston argues that liberal philosophy and liberal constitutionalism have mistakenly prioritized liberal autonomy over social and religious diversity.  Galston mixes intellectual history and analytical philosophy to trace tensions within liberalism to two sources: the post-Reformation recognition of ongoing diversity and the Enlightenment’s emphasis on individual self-reflection.  Galston concludes that only a diversity-oriented liberalism can ensure the range of freedoms that liberalism requires. – K.T.

 
Edward Lazarus, CLOSED CHAMBERS: THE RISE, FALL, AND FUTURE OF THE MODERN SUPREME COURT (Penguin, 2005)
Relevant 2020 Sections: Interpreting Our Constitution, Democracy and Civil Liberties
 
An engrossing inside account of the Supreme Court’s jurisprudential trajectory over the last several decades.  Controversial since its debut in 1998, Lazarus’s behind-the-scenes look at the Court draws on his year clerking for Justice Blackmun; but it also contains extensive original research on the Court’s decision-making in touchstone areas of American law.  Focusing particularly on the death penalty, abortion, and racial preferences, Lazarus shows how the Court’s decisions are a product of precedent, politics, and personality.  Opinionated and compulsively readable, Closed Chambers lays bare how sustained ideological ferment can make its way, in big ways and small, inside the Marble Palace. –A.D.C.


Louis Menand, THE METAPHYSICAL CLUB: A STORY OF IDEAS IN AMERICA (Farrar, Straus, & Giroux, 2002)
Relevant 2020 Section: Interpreting Our Constitution
 
Critics have argued that pragmatism is America’s only home-grown philosophy. While that notion is debatable, pragmatism (in its various and changing forms) has long played a role in the development of American constitutional, social, and political thought. Now, with an Administration that openly declares itself “pragmatic,” pragmatism seems poised to make a comeback. How did we reach this point? Menand’s Pulitzer Prize-winning intellectual history offers readers an engaging overview of pragmatism’s development and spread, with a firm sense of story to match; at the same time, it suggests that pragmatism has, does, and should mean something more than being “non-ideological” or “practical-minded.” – T.W.

 
Laurence Tribe, THE INVISIBLE CONSTITUTION (Oxford University Press, 2008)
Relevant 2020 Section: Interpreting Our Constitution
Tribe's invaluable study of the power and influence of the unwritten, as well as written, Constitution. This book asks us to reimagine the Constitution and to see beyond the limits of originalism. Merging text and context, Tribe offers a sweeping analysis of what the Constitution means and how we ought to interpret it. -L.P.N.
 
 

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