economic inequality

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.

The Democratic Case for Tackling Economic Inequality

Crosspost from Balkinization

I share the assessment of the eminent legal scholars writing in The Constitution in 2020 that constitutional law and the judiciary offer limited promise as means of remedying the economic inequality and insecurity that are so much a part of contemporary America. But it will not do, I think, to end the assessment there. In the fraught history of social rights that William Forbath tells, there is also a larger moral about the kinds of appeals that such a movement must make if it is to succeed. The moral is that these appeals have to be grounded in an articulated vision of citizenship that makes clear why widespread economic inequality and insecurity is so starkly at odds with political equality.

This a deeply American way of approaching the problem—far more so than the idea of positive rights—and it has a long and distinguished lineage in democratic thought. Indeed, for centuries, the dominant assessment of the problem of economic distribution in a democracy saw the concentration of property and power at the top of the economic pyramid as dangerous to democracy precisely because it raised the prospect of a wealthy oligarchy corrupting political institutions.

During the Founding period, the concern that the wealthy would gain undue influence coexisted with the well-documented worries about the tyranny of the propertyless majority. The Founders saw the new American republic as marked by a highly favorable starting point: a distribution of property much broader than that found in the class-bound Old World. And they were convinced that preservation of this broad distribution was not just good in itself but essential to the institutional functioning of democracy. To be sure, they feared challenges to private property from below, but they also feared the rise of an aristocracy, which they believed just as fatal to an independent democratic republic.

New life was breathed into this perspective during the Jacksonian era (“the rich and powerful too often bend the acts of government to their selfish purposes” remain the most remembered words of Jackson veto of the national bank). Yet it rose to its greatest prominence during the Progressive Era. Progressives were alarmed about the growing concentration of wealth and income and the increasingly evident social costs of industrialization. What worried them most, however, was the distortion of politics by private economic power, the translation of economic inequality into political inequality, which in turn reinforced economic inequality. Vast excesses of wealth meant vast excesses of power, a reality directly at odds with the promise of political equality.

Running as a third-party candidate in 1912, Theodore Roosevelt summed up the critique in a famous broadside against “special interests”:

The true friend of property, the true conservative, is he who insists that property shall be the servant and not the master of the commonwealth; who insists that the creature of man’s making shall be the servant and the not the master of the man who made it. The citizens of the United States must effectively control the mighty commercial forces which they themselves have brought into being….The absence of effective state, and, especially, national restraint upon unfair money getting has tended to create a small class of enormously wealthy and economically powerful men, whose chief object is to hold and increase their power.

The next Roosevelt in the Oval Office, facing down the greatest economic crisis the nation had ever seen, put the point even more sharply:

For too many of us the political equality we once had was meaningless in the face of economic inequality. A small group had concentrated in their own hands an almost complete control over other people’s property; other people’s money; other people’s labor—other people’s lives. For too many of us life was no longer free; liberty no longer real; men could no longer follow the pursuit of happiness.

Against economic tyranny such as this, the American citizen could appeal only to the organized power of government. The collapse of 1929 showed up the despotism for what it was. The election of 1932 was the people’s mandate to end it. Under that mandate it is being ended.

The Progressive critique was rooted in the classical republican view, but also gained power from the rise of legal realism, as Cass Sunstein and others have noted. Legal realism insisted, rightly, that markets are inevitably shaped and channeled by political forces, dependent on the rules that are set up and enforced by those who control the coercive power of the state. And the legal realists also rightly argued that walling markets off completely from redistributive and regulatory demands required at least as strenuous an exercise of government power as intervening in them. Laissez-faire is a political choice, one with distinct and sometimes unpleasant consequences, and one that requires a great deal of government intervention to arise and survive.

Lest this critique be seen as deeply radical in spirit, it is worth quoting a little-noticed passage in Adam Smith’s 1776 The Wealth of Nations, now viewed as the bible of limited-government free-market economics. “Wherever there is great property,” Smith wrote, “there is great inequality. Civil government, so far as it is instituted for the security of property, is in reality, instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.”  A clearer statement of the legal-realist view of a century and a half later would be hard to find.

The fact that markets are constructed through public policies and shaped by democratic politics—and therefore that they could be reshaped to produce better outcomes—was a central observation of progressive reformers in the early twentieth century. It should also be a central argument of today’s progressives. So it is important to understand what it means and does not mean. It does not mean that democratic politics always produces well-functioning markets, or that government intervention is always justified or desirable. Rather, it is a more fundamental point. For good or ill, democratic politics makes markets. The debate over good or bad economic policies should not be over whether government is involved, for it always is. The debate should be over whether it is involved in a way conductive to a good society.

For the Progressives, the answer to that question in the early twentieth century was no, as it should be for progressives today. Policies passed in the name of free markets and justified with reference to the sanctity of private property had the effect of creating markets that were mainly in the interests of a narrow economic elite. Efforts to address these inequities were blocked in legislatures highly attentive to business concerns. Where laws promoting social reform were passed, they were thrown out by the courts. Greater economic inequality led to greater political inequality, which in turn led to government policies that reflected the interests of those at the top, worsening or at least hardening class divisions. Swamped by the tides of inequality and insecurity, democracy was giving way to oligarchy—the very concern that the recent dramatic growth in inequality and our present economic crisis have cast in stark relief.

The implication, hopefully obvious by now, is that efforts to reduce inequality can be justified not just on egalitarian grounds, but also on democratic grounds. As the political scientist Sidney Verba has written, democracy is based on the ideal of equal potential consideration of every citizen’s interests. In theory, this ideal is compatible with vast inequalities in other spheres of social life. Even the poorest citizen has the formal right to vote, after all. The problems arise when large and growing resource inequalities translate into substantial, cumulative, and self-reinforcing inequalities of political power. Sadly,  these sorts of political inequalities have become increasingly apparent in American democratic practice.

This is not the place to lay out all the reasons for my concerns. Instead, I will merely refer readers to the work of the American Political Science Association’s Task Force on Inequality and American Democracy, of which I was part. The Task Force considered the effects of growing economic inequality on democratic practice from a variety of perspectives and drawing on a huge range of cutting-edge research. Its conclusion was that growing inequality did indeed threaten political equality in the United States:

Generations of Americans have worked to equalize citizen voice across lines of income, race, and gender. Today, however, the voices of American citizens are raised and heard unequally. The privileged participate more than others and are increasingly well organized to press their demands on government. Public officials, in turn, are much more responsive to the privileged than to average citizens and the least affluent. Citizens with lower or moderate incomes speak with a whisper that is lost on the ears of inattentive government officials, while the advantaged roar with a clarity and consistency that policy-makers readily hear and routinely follow.

What we have, in short, is a classic story of cumulative advantages—people who have more are being heard more by political leaders, and what government does reflects that. The political scientists Larry Bartels and Martin Gilens have found, for instance, that the votes of elected representatives and the direction of public policy are both vastly more responsive to the opinions of high-income citizens (as measured by surveys) than they are to the opinions of Americans of more modest means.

In sum, we should challenge the stark economic disparities of our day not just because they challenge our moral sensibilities, but because they pose a direct threat to political equality. And we should also challenge them because, contrary to the anti-government rhetoric of the last generation, public measures to expand economic equality and security can materially improve the quality of democratic citizenship. Indeed, as the Task Force on Inequality and American Democracy reports, some of the most vibrant examples of twentieth-century American public policy—the GI Bill, support for collective bargaining between management and unions,  Social Security—were successful not just in reducing economic inequality, but also in empowering citizens. By providing Americans across the income spectrum with resources, skills, and motives for democratic citizenship, each of these policies substantially evened out disparities of participation and influence in American politics, helping to reinforce the broad-based character of postwar prosperity.

We would do well to embrace this goal again today.
Jacob Hacker
is the Stanley B. Resor Professor of Political Science at Yale University and a Resident Fellow at the Institution for Social and Policy Studies. He will be appearing on Saturday's "Social Rights" panel with Risa Goluboff (University of Virginia School of Law, "Social Rights") and Benjamin Sachs (Harvard Law School, "Locating Union Rights").

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