Social democracy and constitutional theory: An institutional perspective

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 1969-1987

  Graber, Mark A ^a  

^a UNIVERSITY OF MARYLAND   (United States)

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EID: 0035611670     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (97)

1. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach (2000).
2. Robin West, Rights and the State's Obligation to Secure the Material Pre-Conditions of a Good Society, 69 Fordham L. Rev. 1901, 1922-32 (2001) [hereinafter West, Rights].
3. Stephen L. Elkin, The Constitutional Theory of the Commercial Republic, 69 Fordham L. Rev. 1933, 1941 (2001).
4. William E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1 (1999) [hereinafter Forbath, Caste]; William E. Forbath, Constitutional Welfare Rights: History, Critique and Reconstruction, 69 Fordham L. Rev. 1821 (2001).
5. William E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1 (1999) [hereinafter Forbath, Caste]; William E. Forbath, Constitutional Welfare Rights: History, Critique and Reconstruction, 69 Fordham L. Rev. 1821 (2001).
6. Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 9 (1969).
7. Id. at 14-15.
8. Id. at 13.
9. Karl N. Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1223 (1931).
10. Michael Harrington points out that "social democracy and Socialism are not synonymous." The "former" seeks "State intervention, planning and social priorities within capitalism." The "latter" is "a political movement which seeks to transform capitalism fundamentally." Michael Harrington, Foreword to Werner Sombart, Why is there no Socialism in the United States?, at ix, xi (1976). Progressive constitutional theorists are almost always social democrats, not democratic socialists.
11. See infra Part I.
12. A more complete analysis of why no socialism in the United States would also note that too many citizens are historically unwilling to support social welfare policies whose primary beneficiaries are perceived to be persons of color. As Philip Klinker and Rogers Smith point out, while "many [Americans] oppose[] big government on principle, it seems undeniable that for many others, this threat to national initiatives benefiting blacks [is] not irrelevant." Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 298 (1999); see Jennifer L. Hochschild, The New American Dilemma: Liberal Democracy and School Desegregation, at xi-xii (1984) (citing the issue of race as essential to "Why is there no socialism in the United States?"); Jill Quadagno, The Color of Welfare: How Racism Undermined the War on Poverty (1994) (exploring the connection between the lack of success of American public policy programs and American perceptions of race). This and other political sociology explanations for the American welfare state raise fundamental constitutional questions associated with which people are capable of sharing the same civic space. Space limitations, however, prevent any discussion of this constitutional matter.
13. A more complete analysis of why no socialism in the United States would also note that too many citizens are historically unwilling to support social welfare policies whose primary beneficiaries are perceived to be persons of color. As Philip Klinker and Rogers Smith point out, while "many [Americans] oppose[] big government on principle, it seems undeniable that for many others, this threat to national initiatives benefiting blacks [is] not irrelevant." Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 298 (1999); see Jennifer L. Hochschild, The New American Dilemma: Liberal Democracy and School Desegregation, at xi-xii (1984) (citing the issue of race as essential to "Why is there no socialism in the United States?"); Jill Quadagno, The Color of Welfare: How Racism Undermined the War on Poverty (1994) (exploring the connection between the lack of success of American public policy programs and American perceptions of race). This and other political sociology explanations for the American welfare state raise fundamental constitutional questions associated with which people are capable of sharing the same civic space. Space limitations, however, prevent any discussion of this constitutional matter.
14. A more complete analysis of why no socialism in the United States would also note that too many citizens are historically unwilling to support social welfare policies whose primary beneficiaries are perceived to be persons of color. As Philip Klinker and Rogers Smith point out, while "many [Americans] oppose[] big government on principle, it seems undeniable that for many others, this threat to national initiatives benefiting blacks [is] not irrelevant." Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 298 (1999); see Jennifer L. Hochschild, The New American Dilemma: Liberal Democracy and School Desegregation, at xi-xii (1984) (citing the issue of race as essential to "Why is there no socialism in the United States?"); Jill Quadagno, The Color of Welfare: How Racism Undermined the War on Poverty (1994) (exploring the connection between the lack of success of American public policy programs and American perceptions of race). This and other political sociology explanations for the American welfare state raise fundamental constitutional questions associated with which people are capable of sharing the same civic space. Space limitations, however, prevent any discussion of this constitutional matter.
15. Elkin, supra note 3, at 1948.
16. Id. at 1937. This passage also points out that whatever the abstract merits of some constitutional vision as a theory of justice or a theory of constitutional justice, the vision must also be one that is shared by most citizens.
17. Richard E. Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan 29 (1990) (emphasis omitted).
18. See Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 219-20 (1991); Rogers M. Smith, Political Jurisprudence, the 'New Institutionalism', and the Future of Public Law, 82 Am. Pol. Sci. Rev. 89, 91 (1988).
19. See Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 219-20 (1991); Rogers M. Smith, Political Jurisprudence, the 'New Institutionalism', and the Future of Public Law, 82 Am. Pol. Sci. Rev. 89, 91 (1988).
20. See infra Part III.
21. Robert A. Dahl, A Preface to Democratic Theory 137 (1956). For an outstanding meditation on this theme, see Keith E. Whittington, Constitutional Theory and the Faces of Power, 9-15 (Sept. 28, 2000) (unpublished manuscript, on file with Fordham Law Review).
22. Robert A. Dahl, A Preface to Democratic Theory 137 (1956). For an outstanding meditation on this theme, see Keith E. Whittington, Constitutional Theory and the Faces of Power, 9-15 (Sept. 28, 2000) (unpublished manuscript, on file with Fordham Law Review).
23. I gather some were invited.
24. For a particularly notorious claim that American judges have systemically misinterpreted the Constitution, see Robert H. Bork, The Tempting of America: The Political Seduction of the Law 19-128 (1990).
25. Professor West's paper clearly demonstrates that both the Constitution and liberal theory protects some positive rights. West, Rights, supra note 2; see also Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio St. L.J. 731, 756-62 (1997) (questioning whether the distinction between positive and negative rights is of any value). For the argument that the Constitution safeguards only negative rights, see Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983); David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 889-90 (1986).
26. Professor West's paper clearly demonstrates that both the Constitution and liberal theory protects some positive rights. West, Rights, supra note 2; see also Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio St. L.J. 731, 756-62 (1997) (questioning whether the distinction between positive and negative rights is of any value). For the argument that the Constitution safeguards only negative rights, see Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983); David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 889-90 (1986).
27. Professor West's paper clearly demonstrates that both the Constitution and liberal theory protects some positive rights. West, Rights, supra note 2; see also Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio St. L.J. 731, 756-62 (1997) (questioning whether the distinction between positive and negative rights is of any value). For the argument that the Constitution safeguards only negative rights, see Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983); David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 889-90 (1986).
28. See Seymour Martin Lipset, Why No Socialism in the United States? in 1 Radicalism in the Contemporary Age 32-47 (Seweryn Bialer ed., 1977).
29. Sombart, supra note 9.
30. See Seymour Martin Lipset & Gary Marks, It Didn't Happen Here: Why Socialism Failed in the United States (2000); Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword (1996); Seymour Martin Lipset, Roosevelt and the Protest of the 1930s, 68 Minn. L. Rev. 273, 273 n.* (1983) (citing his other works on this subject) [hereinafter Lipset, Roosevelt].
31. See Seymour Martin Lipset & Gary Marks, It Didn't Happen Here: Why Socialism Failed in the United States (2000); Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword (1996); Seymour Martin Lipset, Roosevelt and the Protest of the 1930s, 68 Minn. L. Rev. 273, 273 n.* (1983) (citing his other works on this subject) [hereinafter Lipset, Roosevelt].
32. See Seymour Martin Lipset & Gary Marks, It Didn't Happen Here: Why Socialism Failed in the United States (2000); Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword (1996); Seymour Martin Lipset, Roosevelt and the Protest of the 1930s, 68 Minn. L. Rev. 273, 273 n.* (1983) (citing his other works on this subject) [hereinafter Lipset, Roosevelt].
33. Some of this literature is discussed elsewhere. See supra note 11 and accompanying text, and infra notes 25, 26 and 38 and accompanying text.
34. Forbath, Caste, supra note 4, at 76.
35. Forbath provides a third, sociological interpretation of why full employment failed. His emphasis on the Southern Democrats highlights how progressive politics may be defeated when they challenge the racial status quo. Id. at 76-89.
36. West, Rights, supra note 2, at 1904 (emphasis in original).
37. Professor West has played a vital role in persuading progressives that their constitutional arguments ought to be pitched at the citizenry, rather than almost exclusively at Supreme Court justices. See Robin West, Progressive Constitutionalism: Reconstructing the Fourteenth Amendment 281-89 (1994). Still, her progressive constitutionalism and those of other progressives concerned with the Constitution outside of the courts is almost entirely focused on explaining how the Constitution might be interpreted as supporting progressive policies and not with detailing whether constitutional institutions are particularly good vehicles for realizing progressive policies. For an important exception, see Mark Tushnet, Taking the Constitution Away From the Courts (1999) (proposing that courts are not good vehicles for realizing populist constitutional law).
38. Professor West has played a vital role in persuading progressives that their constitutional arguments ought to be pitched at the citizenry, rather than almost exclusively at Supreme Court justices. See Robin West, Progressive Constitutionalism: Reconstructing the Fourteenth Amendment 281-89 (1994). Still, her progressive constitutionalism and those of other progressives concerned with the Constitution outside of the courts is almost entirely focused on explaining how the Constitution might be interpreted as supporting progressive policies and not with detailing whether constitutional institutions are particularly good vehicles for realizing progressive policies. For an important exception, see Mark Tushnet, Taking the Constitution Away From the Courts (1999) (proposing that courts are not good vehicles for realizing populist constitutional law).
39. 505 U.S. 833 (1992).
40. 410 U.S. 113 (1973).
41. Forbath, Caste, supra note 4, at 6.
42. See Mark A. Graber, Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics 37-38 (1996).
43. The cash value of different arguments for social democracy is likely to be small. As Elkin notes, "it is unlikely that any differences in the conception of liberal justice will point law-making down substantially different paths." Elkin, supra note 3, at 1956.
44. See transcript on file with the Fordam Law Review.
45. J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1703, 1710 (1997).
46. Walter F. Murphy, James E. Fleming & Sotirios A. Barber, American Constitutional Interpretation, at v (2d ed. 1995) (emphasis in original).
47. Forbath, Caste, supra note 4, at 82-85.
48. Elkin, supra note 3, at 1964-67.
49. Id.
50. Forbath, Caste, supra note 4, at 1, 6.
51. The Federalist No. 10, at 60 (James Madison) (Jacob E. Cooke ed., 1961).
52. The Federalist No. 30, at 193 (Alexander Hamilton), The Federalist No. 57, at 384-85 (James Madison), The Federalist No. 64, at 433, 437 (John Jay), The Federalist No. 68, at 458 (Alexander Hamilton), The Federalist No. 76 at 510, 512-13 (Alexander Hamilton).
53. The Federalist No. 30, at 193 (Alexander Hamilton), The Federalist No. 57, at 384-85 (James Madison), The Federalist No. 64, at 433, 437 (John Jay), The Federalist No. 68, at 458 (Alexander Hamilton), The Federalist No. 76 at 510, 512-13 (Alexander Hamilton).
54. The Federalist No. 30, at 193 (Alexander Hamilton), The Federalist No. 57, at 384-85 (James Madison), The Federalist No. 64, at 433, 437 (John Jay), The Federalist No. 68, at 458 (Alexander Hamilton), The Federalist No. 76 at 510, 512-13 (Alexander Hamilton).
55. The Federalist No. 30, at 193 (Alexander Hamilton), The Federalist No. 57, at 384-85 (James Madison), The Federalist No. 64, at 433, 437 (John Jay), The Federalist No. 68, at 458 (Alexander Hamilton), The Federalist No. 76 at 510, 512-13 (Alexander Hamilton).
56. The Federalist No. 30, at 193 (Alexander Hamilton), The Federalist No. 57, at 384-85 (James Madison), The Federalist No. 64, at 433, 437 (John Jay), The Federalist No. 68, at 458 (Alexander Hamilton), The Federalist No. 76 at 510, 512-13 (Alexander Hamilton).
57. The Federalist No. 31, at 197 (Alexander Hamilton).
58. See Jack N. Rakove, Parchment Barriers and the Politics of Rights, in A Culture of Rights: The Bill of Rights in Philosophy, Politics, and Law-1791 and 1991, at 130-37 (Michael J. Lacey & Knud Haakonssen eds., 1991).
59. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 316, 325-27, 332-35, 334 (1996) ("Madison saw little evidence that the state declaration of rights had any efficacy in securing their avowed objects.") [hereinafter Rakove, Original Meanings].
60. Friends of the Constitution: Writings of the "Other" Federalists - 1787-1788, at 180 (Colleen A. Sheehan & Gary L. McDowell eds., 1998) (emphasis in original); see also Rakove, Original Meanings, supra note 45, at 327 (agreeing that the Federalists believed that the system of representation safeguarded democracy rather than any written bill of rights).
61. Friends of the Constitution: Writings of the "Other" Federalists - 1787-1788, at 180 (Colleen A. Sheehan & Gary L. McDowell eds., 1998) (emphasis in original); see also Rakove, Original Meanings, supra note 45, at 327 (agreeing that the Federalists believed that the system of representation safeguarded democracy rather than any written bill of rights).
62. See 8 The Documentary History of the Ratification of the Constitution: Ratification of the Constitution by the States: Virginia I, at 308, 438 (John P. Kaminski & Gaspare J. Saladino eds., 1988) [hereinafter 8 Documentary History]; 9 Documentary History, at 975; 10 Documentary History, at 1196-97, 1333-34.
63. See 8 The Documentary History of the Ratification of the Constitution: Ratification of the Constitution by the States: Virginia I, at 308, 438 (John P. Kaminski & Gaspare J. Saladino eds., 1988) [hereinafter 8 Documentary History]; 9 Documentary History, at 975; 10 Documentary History, at 1196-97, 1333-34.
64. See 8 The Documentary History of the Ratification of the Constitution: Ratification of the Constitution by the States: Virginia I, at 308, 438 (John P. Kaminski & Gaspare J. Saladino eds., 1988) [hereinafter 8 Documentary History]; 9 Documentary History, at 975; 10 Documentary History, at 1196-97, 1333-34.
65. 8 Documentary History, at 334; see id., at 337.
66. The Federalist No. 84, at 580 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
67. Id. at 581 (emphasis added); see Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era: Police Powers Jurisprudence 203 (1993); Walter Berns, Judicial Review and the Rights and Laws of Nature, in 1982: The Supreme Court Review 66 (Philip B. Kurland et al. eds., 1983) (the Framers recognized that "the most efficient way to limit power was not to withhold powers- although they did that too - but to organize power in a particular way.").
68. Id. at 581 (emphasis added); see Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era: Police Powers Jurisprudence 203 (1993); Walter Berns, Judicial Review and the Rights and Laws of Nature, in 1982: The Supreme Court Review 66 (Philip B. Kurland et al. eds., 1983) (the Framers recognized that "the most efficient way to limit power was not to withhold powers-although they did that too - but to organize power in a particular way.").
69. Charles S. Sydnor, 5 A History of the South: The Development of Southern Sectionalism 1819-1848, at 279 (1948).
70. Herbert J. Storing, The Constitution and the Bill of Rights, in How Does the Constitution Secure Rights? 35 (Robert A. Goldwin & William A. Schambra eds., 1985); see also Walter Berns, The Constitution as Bill of Rights, in How Does the Constitution Secure Rights?, supra, at 59-65.
71. Herbert J. Storing, The Constitution and the Bill of Rights, in How Does the Constitution Secure Rights? 35 (Robert A. Goldwin & William A. Schambra eds., 1985); see also Walter Berns, The Constitution as Bill of Rights, in How Does the Constitution Secure Rights?, supra, at 59-65.
72. Victoria C. Hattam, Labor Visions and State Power: The Origins of Business Unionism in the United States, at ix (1993).
73. Id.
74. William E. Forbath, Law and the Shaping of the American Labor Movement 3 (1991).
75. George Lovell, The Ambiguities of Labor's Legislative Reforms in New York State in the Late Nineteenth Century, 8 Stud. Am. Pol. Dev. 81, 82 (1994).
76. Id. at 83.
77. Sombart, supra note 9, at 33-54.
78. Lipset, Roosevelt, supra note 23, at 274.
79. David Brian Robertson, The Bias of American Federalism: The Limits of Welfare-State Development in the Progressive Era, 1 J. Pol'y Hist. 261, 261 (1989).
80. Id. at 271.
81. Id. at 261.
82. Id. at 285-86.
83. Sven H. Steinmo, American Exceptionalism Reconsidered: Culture or Institutions?, in The Dynamics of American Politics: Approaches and Interpretations 127 (Lawrence C. Dodd & Calvin Jillson eds., 1994).
84. Id.
85. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991) (attributing courts' failure to implement significant social reform to their dependence on political support and lack of implementation powers).
86. See, e.g., Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court 259 (1999).
87. See Jeffrey L. Pressman & Aaron Wildavsky, Implementation 128-46 (1973).
88. Steinmo, supra note 64, at 127.
89. Elaine K. Swift, The Making of an American Senate: Reconstitutive Change in Congress, 1787-1841, at 140 (1996).
90. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed. 1961).
91. The Federalist No. 9, at 51 (Alexander Hamilton).
92. Paul E. Peterson, The Urban Underclass and the Poverty Paradox, 106 Pol. Sci. Q. 617, 620 (1991).
93. Elkin, supra note 3, at 1961-63.
94. See Mark A. Graber, Conflicting Representations: Lani Guinier and James Madison on Electoral Systems, 13 Const. Comment. 291 (1996) (suggesting that conservative evangelicals, not persons of color, will be the main beneficiaries of Professor Guinier's institutional reforms of the American electoral system).
95. The Federalist No. 9, at 51 (Alexander Hamilton).
96. Rakove, Original Meanings, supra note 45, at 367.
97. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 949 (1973).