Thursday, November 18, 2004

Socialism is Dead. Long Live Social-ism: Economic Inequality and the Social Dimensions of the Constitution in 2020 -- post by Willy Forbath

FDR was right about the necessity of social rights; but social rights are dead. Constitutional democracy is impossible without some limits on social and economic inequality. Poverty, chronic joblessness, a renaissance of sweat shops, a lack of education and basic social goods: Americans thus afflicted can’t participate on anything like a roughly equal footing in the political community nor in the world of work and opportunity. The “consent of the governed” is a hoax in a system that allows such savage inequality as ours. Yet, “welfare rights,” as most Americans understand them, have been tried and rejected. What is to be done, and how, if at all, should the Constitution and (a separate question) judicially enforced constitutional law be interpreted to safeguard social rights or a social minimum in 2020?

A Social Minimum vs. Market-Based Social Citizenship vs. …

Two programmatic alternatives are on offer: a guaranteed social minimum and market-based social citizenship. Often seen as clashing, in fact, neither is practically or morally sufficient unto itself; and neither has reckoned with the global economy. A progressive programmatic outlook would offer legislation and institutional reform that enabled experimentation combining elements of each. A progressive constitutional vision would set out the commitments which this ongoing project must meet. Some of these commitments will lend themselves to a measure of judicial guardianship; others won’t (but not for the usual reasons).

Champions of a social minimum urge a renewed campaign for an unconditional basic income and social insurance, free from work requirements, moralizing or coercion. Champions of market-based social citizenship reply that the social bases of equal citizenship in America demand a right to earn a decent livelihood, to participate in the common destiny of work and responsibility. Otherwise, they say, countless recipients of a basic income would remain marginalized and stigmatized. Thus, they favor job creation, earned income tax credits or wage subsidies, along with such “enabling rights” as education, training and childcare.

Market-based social citizenship takes back from conservatives the classical liberal language of individual liberty, risk-taking, competitiveness, and personal responsibility. Rather than redistribution of income after the fact, market-based social citizenship ideas emphasize redistributing opportunities and life chances, incentives and rewards to effort, and redistributing the security necessary to take risks. This blurs the categories and jumbles the values that conventionally distinguish liberal and conservative social policy. It puts progressives on the side of economic growth, and it puts the moral basis of a progressive program on the bedrock promises of liberal capitalism: work for the willing, a decent income for those who work, opportunity to rise above a bare minimum by making full use of one’s talents and abilities. For much of American history, this was the economic heart of “equal rights”; this was so for Jacksonians and remained so for Lincoln. FDR’s “second bill of rights,” with its emphasis on education, employment and earnings, tapped into this outlook, although, of course, FDR argued that “equal rights” no longer meant equal enjoyment of the “old, sacred possessory [common law] rights” of contract and property, but of positive social rights.

There are costs and liabilities to this “social market” outlook. It assumes that some combination of private investment and public works and subsidies can produce “decent work” for all. But no one knows if that’s so in today’s economy. Its marketplace emphasis on “earning one’s livelihood” also impoverishes those who will not or cannot work as the social market measures their efforts, as well as their offspring and dependents. Neither should be acceptable in a prosperous liberal society that respects human dignity. But a progressive liberal society may enact a variation of the classic liberal “less eligibility” principle: If it affords everyone a realistic opportunity to earn their livelihoods, it may reward work, including such socially recognized contributions as child or elder care more generously, and provide only a bare social minimum for those who don’t “work” as the society defines it.

Constitutional Social Rights and Commitments

So, some kind of social minimum is demanded; but it is not morally sufficient and is probably not politically feasible without a social citizenship style guarantee of decent work and livelihoods for working Americans. At the same time, deep practical uncertainties about broadening the base of decent work distinguish this commitment from social rights to food, shelter, or healthcare. Practical uncertainty is also linked to normative complexity and open-ended cultural contention and change. In an America constituted by both kinds of guarantees, the response to homelessness, and the incapacitation and indignity it threatens, would have to be some kind of affordable home; but the response to the marginality and exclusion threatened by joblessness might rightly be more open-ended. It might consist of job creation to fill unmet public needs, or assistance to train for or move to a better labor market. It might entail turning exploitive, demeaning jobs into decent ones. But it might also include widening the distribution of decent work, combined with a compensating social wage or basic income, enabling overworked Americans to devote more time to family, community, and other things. In a progressive America so constituted, there surely would be good faith disagreement and ongoing normative as well as practical revaluation of what we mean by work and respected contributions and how to strike the balance between individual earnings and social wages.

Rights to goods like food and shelter, even education – a social minimum – are suited to some non-trivial measure of judicial oversight, even though enforcing them to the hilt is well beyond the courts’ domain. The broader social citizenship guarantee is no less essential to constituting every person as a minimally respected and competent member of the polity and society, but it is encircled by wide-open practical and normative choices. So, it’s better seen as a non-justiciable “constitutive commitment” or “directive principle.” We will lose much, morally and politically, however, if we don’t keep this broader guarantee squarely within our constitutional vision.

At the same time, judicially cognizable social rights – to the social minimum just mentioned – may provide a hook and a prod for securing the livelihoods of those at the margins, boosting their ability to participate in the polity’s conversations about its constitutive commitments – and to remind their fellow citizens that they are there.

-- Willy Forbath