Economic Rights Must Be Contested
Mike Konczal has a good post asking What Policy Agenda Follows From “You Didn’t Build That?” It’s well worth reading (and not just for all the great FDR quotes), and I agree wholeheartedly with the rejection of the idea that economic rights are pre-political and natural. But I have one objection.
And so “liberty” for one comes at an expense of “liberty” for another. Since there’s no neutral way for the government to set these rules, certainly no abstraction like “economic liberty” to guide the path, the question over social control of property, as Leonard Trelawny Hobhouse put it, is “not of increasing or diminishing, but of reorganizing, restraints.” The issue here isn’t that everything is up for grabs – it’s that there is no “neutral,” and appealing to higher abstractions as “rights” or “ownership” don’t get you anywhere.
Now it’s true that there’s no neutral way to settle these questions. But politics is rarely about neutral terms. Liberty, like freedom and equality, are what Gallie called inherently contested concepts (pdf). They are terms that have a evaluative dimension, that have a relatively uncontested core, but extensions will be disputed. As Lakoff has long argued, it won’t do to abandon terms that are contested. That just allows conservatives to advance their own vision of these terms. It strikes me that conservatives have long since figured out that they can make anything contested simply by contesting it, which is a central way they seek to change the boundaries of the possible.
Because the New Deal ultimately rested on the Constitutional foundation of the Commerce Clause, it’s easy to forget that activists didn’t. They relied instead on a contested version of economic freedom, drawing on the Thirteenth Amendment, barring slavery and involuntary servitude, to justify labor rights and government efforts to manage the economy to ensure it met human needs and human dignity.* (By the way, Balkin and Levinson have a new paper on The Dangerous Thirteenth Amendment I haven’t had a chance to check out but looks very interesting).
The conservative view of liberty is one of domination–that employers should be free to dominate their employees, that the ability of capital to organize in corporations is a fundamental right but the ability of workers to organize in unions violates the rights of employers, that the right of the rich to further enrich themselves at the expense of workers inheres in the right of property while the right of workers to make enough to live is “socialism.” Oligarchy unchecked by government or free association by workers.
Personally, I don’t believe that is an attractive view. And I don’t think most Americans think so either. But they rarely hear it put in such stark terms. Bu they will only hear it if we engage in vigorous contestation. Avoiding contestable terms gets in the way of that, as does allowing the limits of the politics of the day to narrow our own conversations about what is to be done.
*The same thing happened during the Civil Rights Movement, where activists drew on notions of freedom and equality (not just the latter) and the Equal Protection Clause (which clearly requires government to affirmatively use law to protect people, not simply refrain from discriminating itself) but the DOJ and ultimately the Supreme Court relied on the Commerce Clause.