Monday, April 04, 2005

Race and the Common Good -- Post by Olati Johnson

1. Several people suggest restoring and promoting a vigorous concept of the common good. Robert Post asks whether progressives should continue to “orient our constitutional politics” around inclusion, or rather whether we should articulate an affirmative vision that, in the tradition of FDR, speaks for the entire public. Several other participants suggest a vision of the common good organized around work: full-time workers should be able to make a living wage, all workers (and not just those entitled to protection under civil rights laws) can be fired only for cause and so on.

I support this framing. I ask also that we articulate a vision of the common good that does not marginalize conceptions of race. Race often operates to undermine notions of collective good. Perceptions (and misperceptions) about the race of beneficiaries has eroded support not just for racial reform, but for progressive social and economic programs (welfare and anti-poverty programs for instance). And at the same time, collective universal programs can serve to perpetuate racial hierarchy. The original Social Security Act, while it benefited many African-Americans, excluded domestic and agricultural workers who were primarily African-Americans. Post-war housing programs such as VA and FHA backed loans helped to create a suburban middle-class, but contributed to racial segregation. A vision of “citizenship” must account for the fact that racial exclusion often takes the form of citizenship harms – including the designing of public policy in ways that exclude or reinforce racial inequality. We need a robust concept of “citizenship” and of the “common good” that ensures that state actions and policies do not exacerbate disparities. This will require creating a new narrative around race -- one that understands the problem of racial subordination as a challenge to our “civil self-understanding” (as Glenn Loury says), our nation’s sense of shared purpose and fate. We also need to deal directly with the problem of racial inequality because, as an empirical matter, race-neutral policies and programs will likely be insufficient in addressing entrenched disparity.

2. Reading the discussions about the progressive vision of the constitution, I realize that I would settle for a constitution that gives Congress broad powers of enforcement. To the judicially-enforced equal protection clause I ask: “what have you done for me lately?” Despite all the legal commentary critiquing constitutional standards, things were not so bad when we had robust statutory responses to this limited standard. It’s the post- Boerne pre-Hibbs Section 5 decisions that seem the serious problem, and, as Pam Karlan has pointed out in her writings, the curtailment of the right to privately enforce civil rights (see, e.g., Sandoval).

3. While this may be somewhat beyond the scope of this conference, I believe that progressives need to be much better at working on the state level. Some postings have discussed the need for a constitutional vision that allows progressive experimentation at the state level. While working at the Senate, I noticed that our state-level networks were often too weak to support innovative and progressive federal-level reforms. Most congressional members need to feel pressure from state-level groups and individuals to support progressive reforms, and members of good will often want to build on innovative state-level efforts. Unfortunately, most of the major non-governmental organizations have very little infrastructure on the state level. The result is that interesting efforts on the state level – for instance sentencing reform efforts fueled by the states’ fiscal crises – are not always harnessed to promote broader national policy changes. We need to think about the federal-state connection differently to bring about progressive reforms.

I look forward to the discussions.

-- Olati Johnson