Sunday, December 19, 2004

Post by Richard Thompson Ford

One meta-question hangs over my thoughts about the Constitution in 2020. To what extent must our deliberations consider popular reception as well as the potential for success in the courts and principled legal correctness? While we should not turn to brazen pandering or empty salesmanship, principled positions that few courts will accept and even judicial victories that do not eventually garner significant popular support are not durable successes. And we should worry about unpopular judicial victories as a matter of principle as well as for practical reasons. This isn’t to say that we should give up on the courts, but it is to say that we shouldn’t give up on the people either.

So I take it as given that our constitutional program requires a popular story that gives it meaning and legitimacy. My very strong belief is that such a popular narrative must unify the political community (thus could be a locality or state as well as the nation, depending on the scope of the legal intervention); it must describe whatever legal intervention we wish to advance as something that enriches us as whole. Of course this doesn’t mean that it must directly benefit everyone.

But it does mean that whenever possible our legal interventions should not be premised on strong presumptions of group difference and should not seek special privileges for some groups that others would not enjoy. Some of this is a question of framing. A characteristic of the “new left” has been a romance with identity politics. This romance has matured into an obsessive and dysfunctional relationship, such that today it often seems that progressives deliberately frame political questions in terms of identity politics, even when substantially similar ends could be achieved by framing the question in more universal terms. I suspect that only some of the inputs for such framing is tactical—much I suspect is an inadequately theorized commitment to a “politics of recognition.”

An obvious example involves anti sodomy laws. For years the debate was framed in terms of “gay rights.” Now, post Lawrence it seems that a more universalistic framing was the better approach.

An obvious counter example is affirmative action. But even here, where group based framing seems unavoidable, we can seek to down play presumptions of intrinsic group difference and emphasize the universal aspects of the intervention. Affirmative action, it seems to me, is one of many reasonable policies designed to address the unique social inequities produced by historically institutionalized practices of formal discrimination. We can easily frame the policy outcome as one that serves the national interest by helping to wipe clean the moral stain of formal discrimination and to allow institutions to correct for systematic bias that resulting from the legacy such discrimination. This rationale (admittedly the “societal discrimination” rationale rejected by Justice Powell in Bakke) is a useful supplement to “diversity” O’Connor’s opinion in Grutter is a nice example: in the course of an opinion advancing the diversity rationale, she manages to (needs to?) smuggle in the societal discrimination rationale as well: the Grutter opinion notes in passing that “By virtue of our Nation’s Struggle with racial inequality, [minority] students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.” There’s something telling O’Connor’s emphasis on “our nation’s struggle” with racial discrimination. We’re in the struggle together—its not the struggle of racial minorities or of public universities—its our nation’s struggle. I think we could take something useful away from that inclusive framing.

I take seriously Chuck Sabel’s point that we should look carefully at successes under state constitutions which proceed from “local” cases to require concrete egalitarian redistributions in specific institutional contexts in areas such as school finance reform. We should look to ways to popularize this dynamic so to speak—to see whether it can travel from the judicial to the popular arena and think more about the types of socio-political commitments it might produce. We’d be fools not to take these examples seriously, but I’m not convinced that such examples can substitute for ideological or narrative resources that promote a since of political solidarity.

One thing Sabel’s examples suggest is that it’s possible that we should begin looking for political community at the local or state level and work out, rather than begin at the national level. If so, we may need to reconsider the conventional left-liberal aversion to decentralization of power (I take this to be part of David Barron’s point in the Liberties and Communities session). But that’s for another blog.

There’s the wind up: here’s the pitch. I suspect that the best—perhaps the only—way to frame a broad constitutional vision that will both appeal to a majority of Americans and satisfy traditional left-liberal objectives (egalitarian redistribution of wealth—either in kind or through socially progressive legislation and policy, more humane workplace relationships…) will be to tell a story that emphasizes what joins us as political community, a narrative of the polis as an imagined community. It’s a truism, but not less true for it, that nations with strong social safety nets (the caricature of European social democracy) tend to have a strong sense of social commonality. This doesn’t mean, as is often suggested, that ethnic or cultural homogeneity is a prerequisite for social cross subsidization; it’s another caricature that European nations are ethnically and cultural homogenous—a glance at the history of almost every European nation reveals a host of distinct regions, principalities and ethnicities, joined as a single nation relatively recently and not without much political effort. Nor does it necessarily involve brutal suppression of difference: even the modern stereotype of an ambitious and aggressive example of national centralization—Republican France—was successful not as much because of the violent suppression of ethnic difference (not that this didn’t occur!) as because of the creation—coincidental and deliberate—of economic incentives to assimilation and the creation of a robust narrative of republican citizenship (here I think of the account of French nationalism offered in Eugen Weber’s “Peasants Into Frenchmen”).

Perhaps the central point is this: in a world that is increasingly interconnected we, more than ever, need a good rationale for an ethic of political sharing that can underwrite a welfare state or social safety net. Liberal humanism isn’t sufficient because it doesn’t explain why we owe a greater to duty to people in the nation than to those, equally in need, outside its borders. For instance, given the ease of trade in agricultural products across national borders and the multinational interests of many nominally “American” corporations, why do we owe a free public education and minimum social services to non citizens who do seasonal agricultural labor in the United States but not to non citizens who do similar work in other countries whose main export market is the United States (we benefit from the labor of migrant farmworkers every time we buy produce from the Central Valley of California, but we also benefit from the labor of foreign farmworkers whenever we buy imported produce. American-owned agribusiness benefits from migrant labor but increasingly it also benefits from labor that occurs entirely offshore.) I suspect (and share) a strong, inchoate sense that migrant laborers, even those who send much of their earnings to foreign countries and reside in the United States only seasonally are still “us” whereas people residing and working exclusively in a foreign country are not But without a reasonably coherent and convincing account of who “we” are, I think defending this inchoate sense to a skeptic will be very rough going.

In the blogs and in our December session we touched on this theme several times: Willie Forbath’s idea of social citizenship, Robert Post’s suggestion that we avoid particularizing constitutional frameworks (group rights on the equal protection model) in favor of norms of universal applicability (fundamental rights) and Bruce Ackerman’s (rightly controversial) suggestion to center a new constitutional program on a revitalization of the citizenship clauses. All of these ideas are and should be controversial. But that’s precisely what makes them worth considering. Let’s face it: we’re on the run. We need ideas that shake up comfortable left-liberal pieties and move us in new directions.

I’m not convinced that either “work” or “citizenship” is the right organizing rubric. But I don’t think the fact that they will exclude some people is necessarily a reason to reject them. If we can provide everyone with the opportunity, given sufficient effort and commitment, to become a citizen (we’d need to revisit naturalization laws) or do meaningful work (we’d need something like William Julius Wilson’s idea of a WPA project for urban areas), its not clear to me that we owe something more to people who choose not to avail themselves of the opportunity. It’s an inevitable consequence of any conception of community that some people aren’t members. It seems to me that a liberal community could be sufficiently porus as to allow ready entry (and exit) on the basis of effort and demonstrated commitment. But its strikes me as quixotic to imagine one could drum up meaningful political support for sharing and cross subsidization in a community that required no significant effort or contribution and entailed no meaningful allegiances.

In this respect, it seems to me enough that we offer everyone humane choices, even if they are not always choices from which they are happy to select. So I believe that if we were to emphasize an ethic of work, we must do much more to make workplaces dignified, humane and non discriminatory, but we needn’t abandon the idea because some able bodied people refuse work on any terms. If we are to emphasize citizenship we must make it available on dignified and humane terms to every responsible and contributing member of the society (I leave aside tricky questions of what counts as the society and why physical presence in the territory should have any weight at all, much less as much as it does) but we needn’t abandon citizenship because some potential members of the political community prefer other national allegiances.

-- Richard Thompson Ford