Thursday, November 25, 2004

Post by Frank Michelman

Posts from Mark Tushnet and Willy Forbath prompt these questions: What makes a big legislative accomplishment a "constitutional" one (but outside of the courts), as Mark says of social security, e.g.? What, concretely, do we have in mind when we contemplate a principle's being constitutionalized without its being judicialized, as Willy urges in regard to social citizenship?
Constitutionalized social-minimum rights are to some degree appropriately judicially cognizable, Willy says, while social citizenship is not. Suppose one concurs in those judgments, as I am inclined to do, and also cottons to Willy's further judgment that a principle of market-based social citizenship deserves to be placed and kept squarely within American "constitutional vision." With adjudication unavailable as a gauge, how would we know that the latter sort of event had occurred, if it did occur? (In fact, how do we know it is not a past occurrence, currently in effect?)
So, sticking with the social-citizenship example, one question is: Practically speaking, what does it mean to think of market-based social citizenship, alongside a social minimum, gaining recognition as a constitutional principle, commitment, or value? A related question is: What sorts of steps might one think of taking to secure such a result?
As first rough cut, an answer to the first question might be: For the principle of social citizenship to be constitutionalized extrajudicially means that the politics around legislative policy choices bearing on social citizenship (including agenda-setting) are observably high-minded or deliberative by comparison to the daily run. We will know social citizenship has gained purchase as a constitutional principle when the politics surrounding pertinent legislation are characteristically constitutional, not ordinary, politics
Okay, but that apparently would be a major political-cultural shift, not likely to occur without institutional prodding or sustained without institutional support. What kinds of institutional support, then? And what kinds of organized political intervention might one consider as means of bringing them into being? Are these questions part of the think-tank agenda for progressive-minded constitutionalists?
I'll just toss out at random some possibilities that come to mind, by way of indicating the sort of discussion/investigation I'm thinking of. How about trying for a constitutional amendment declaring social citizenship to be a non-justiciable, directive principle of the Constitution? How about a constitutional amendment establishing an OMB-like executive office to monitor legislation (and legislative agendas) for social-citizenship ramifications? How about pushing for an Act of Congress to like effect, including declarations of the constitutional status of the social-citizenship principle? Or maybe the Act (or the Amendment) should establish a permanent joint congressional committee -- instead of or in addition to the executive office -- to be the monitor? Or how about pushing for congressional enactment of a superstatute, analogous to the UK's Human Rights Act except that all the monitors would be non-judicial, which contains the above-features and also a provision for fast-tracking legislative proposals from the designated social-citizenship monitors? How about an Amendment or Act re-establishing the Department of Labor as the Department of Social Citizenship? Etc., etc.
I'm not recommending any of the foregoing. Any or all if them may be inane ideas. I do mean to suggest (and I'm confident Mark and Willy both would agree) that if we're going to talk and think -- as we should -- about an extrajudicial constitution, we need to be asking ourselves the sort of question to which those ideas at least would be responsive, along with any higher-level issues, normative or tactical, they may raise in regard to our notions of constitutionalism.

-- Frank Michelman