Notes on a Theory…

Thoughts on politics, law, & social science

Forbath on the Distributive Constitution

with 2 comments

Progressives have forgotten how to think about the constitutional dimensions of economic life. Work, livelihood, and opportunity; material security and  insecurity; poverty and dependency; union organizing, collective bargaining, and workplace democracy: for generations of American reformers, the  constitutional importance of these subjects was self-evident. Laissez-faire, unchecked corporate power, and the deprivations and inequalities they bred were  not just bad public policy—they were constitutional infirmities.  Today, with the exception of employment discrimination, such concerns have vanished from progressives’ constitutional landscape.

That has to change.

Today, Matt Dimick called attention Williams Forbath’s piece in Dissent, “Workers’ Rights and the Distributive Constitution” which opens with the above quote. It makes a good follow up to my last post on the role of money in putting deeply unpopular Social Security cuts on the agenda, or more simply, the power of the donor class. Forbath notes that conservatives use constitutional language to advance their agenda, while progressives often respond defensively.  But Forbath calls for progressives to recapture a constitutional tradition that would insist that government has not only the power but the duty to push back against the conservative assault on the New Deal and Great Society.

The gist of the distributive tradition is simple: gross economic inequality produces gross political inequality. You cannot have a constitutional republic, or what the Framers called a “republican form of government,” and certainly not a democracy, in the context of gross material inequality. Gross economic inequality produces an oligarchy in which the wealthy rule; and insofar as it produces deprivation and a lack of basic social goods among those at the bottom, gross inequality destroys the material independence and security that democratic citizens must have in order to think and act on their own behalf and participate on a roughly equal footing in political and social life. Finally, access to basic goods [my emphasis] such as education and livelihood is essential to standing and respect in one’s own  eyes and in the eyes of the community.

Another way of putting this is “the contest between ‘Wealth’ and ‘Commonwealth'”, or a the claim of “the artificiality of the opposition of ‘economic’ versus ‘political’ or labor versus civil rights protest.”  Forbath notes that one of the organizing principles of the New Deal, and the social movements that gave birth to it, was the idea that democracy couldn’t be something that existed only outside the workplace. The older term is ‘industrial democracy’ but workplace democracy would make more sense today.  This vision is one that would require a social movement, not just the normal politics we are used to. (Forbath also notes that for most of our history, this tradition has been partial, leaving out people on the basis of race, gender, etc.  He notes the 14th Amendment partially addressed this issue, but I would go further.  Section One protects ‘persons.’  That gives us all the authority we need to extend this tradition to everyone).

Read the whole thing.

Lawrence Lessig calls the problem of campaign finance–or more clearly, dependence corruption–as the root of the problem. Not the main cause, the one that must be dealt with first before others can be successfully addressed. There is something to this. But at the moment, progressives largely lack a substantive, positive, vision of what they seek. Forbath says “constitutionalism is the language Americans most often use to talk about the rights of citizens and the duties and purposes of government.” To fail to address these questions about economic rights,  instead treating them as mere ‘politics’ is “wrong as a matter of constitutional history and wrong in principle. And it is bad politics.” I agree. It’s hard to mobilize people only to play defense, or to go the mat over small or mixed improvements over the status quo.

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Written by David Kaib

April 23, 2013 at 1:39 pm

2 Responses

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  1. I like the idea of constitutionalism for several reasons.

    But one of the things I’ve noticed over the last couple decades, in talking to people who I’ve attempted to persuade, The Constitution is rather abstract for most people. Institutions, on the other hand, everyone “understands” viscerally through experience. As such, engaging them on that level works better for me. Your mileage may vary.

    That’s not a reason to stay away from it, of course, as dislodging the Right from that hilltop would be a real treat in many ways–starting with the fact they despise the Constitution and are always working really hard to shred the thing. But in terms of organizing, I’d start with institutions and work into the constitution, rather than the other way around. Everyone’s been to the DMV, right? I can count all the human souls I’ve known on one hand who don’t have an opinion on DMV.

    The constitution? Not so much. So your opening salvo needs to be on a level everyone gets right off.

    Ford Prefect

    April 23, 2013 at 10:48 pm

    • That’s interesting – constitutionalism can be very abstract, and I haven’t found that to be a very helpful way to connect with people. But it can also be concrete, which I think is what Forbath is calling for, but definitely fits more with my way of thinking. I like the point about institutions. I’d think of it in terms of using the langauge of constitutionalism to make sense of institutions and justify institutional change.

      David Kaib

      April 23, 2013 at 10:57 pm


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