The Constitution and Democratic Insurgency

Aziz Rana—

One of today’s most urgent questions is how to combine an analysis of capitalism with an analysis of democracy.  The rolling socio-economic crises of the last decade, highlighted by the global financial meltdown, have laid bare the extent to which American society is marked by fundamental and irreconcilable conflicts between those enjoying economic power and those subject to the vagaries of the market.  At the same time, the constitutional system, plagued by legislative dysfunction and extreme counter-majoritarianism, is incapable of implementing popular policy—let alone resolving endemic collective problems.  American capitalism generates profound social and material dispossession, yet American democracy either facilitates these developments or seems helpless to address them.  Why is this the case? And to what extent is the existing constitutional order—its basic ideological and institutional terms—at least partly to blame?

Since the forging of Cold War liberalism in the mid-twentieth century, elites have offered the same, familiar account—in both electoral politics and in the study of constitutional law—of the relationship between the constitutional order and the economy. The prevailing theory is that the structures of legal-political decision-making do not favor particular social groups. Instead, through an intricate system of checks and balances—overseen by a Supreme Court enjoying powers of judicial review—the constitutional process produces essentially just outcomes while ensuring that no single political or social actor wields overwhelming authority.  This structure of constraint substantively pushes decisions away from the extremes of fascism and communism and toward a moderate middle ground of ameliorative reform and steady collective improvement.

Although some may be suspicious of the Whiggish story of progress, a bedrock assumption underlying this account has been widely held—even among left-liberal circles.  This is the idea that the constitutional structure and its discursive traditions remain essentially agnostic as to existing distributional battles.  They can be used productively to pursue virtually any end—up to and including socialism.  As the New Deal victories seemed to confirm, constitutional process and language carry no essential theory of political economy.  To the extent that legal-political outcomes have remained in line with a vision of market capitalism and a limited welfare state, this is simply the product of popular will: the complex balance of views expressed across the constitutional system.

But this account ignores a fundamental critique of the constitutional order, one leveled by labor and black radicalism in the first four decades of the twentieth century before Cold War ideas took such an extreme hold. For those activists, the history of sustained racial, indigenous, gender, and class subordination made clear that the country was not then and had never truly been democratic.  Rather, the constitutional order systematically operated to expand the strength of a racial and economic minority.

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The App and the Operating System: Neoliberalism and “Social Reproduction”

Angela Harris 

In the LPE community, issues of race, class, sexuality, and environment are sometimes referred to collectively as “social and ecological reproduction.” In this post and others to follow, I want to think about the place of the social and the ecological in “law and political economy.”

As others have written on this blog, one of LPE’s central commitments is the idea that economic and political governance are both constituted through legal rules, reasoning, and institutions. A second commitment is that in a democratically constituted society, economic governance ought not to be treated like a fully autonomous machine, but rather as bound to some extent by political norms. These ideas, of course, are not new (even to legal scholarship, which tends to be a late adopter of new ideas). But they have new force today. As the late Erik Olin Wright observed in a paper on “strategic logics of anti-capitalism,” in the early decades following World War II (the “Golden Age of Capitalism”), federal government policy worked to ameliorate the most damaging effects of capitalism in at least three ways: reducing the exposure of households to catastrophic risk through social insurance; heavily subsidizing public goods such as libraries, education, transportation, parks, and basic science research and development; and creating a regulatory regime to address some of the most devastating “negative externalities” caused by corporate capital, including environmental degradation, predatory market behavior, and workplace exploitation. The reversal of all of these policies, here in the United States and elsewhere in the world, goes under the name “neoliberalism.” And “law and political economy” is critical legal scholarship reinvented for the age of neoliberalism.

What, though, does LPE want? Would rolling back neoliberalism lead us to pack away our laptops and go home? Take, for example, some infamous features of the “Golden Age:” the omission of agricultural and domestic workers from the Fair Labor Standards Act, the endorsement of “redlining” by the Home Owners Loan Corporation, the embrace of gendered labor markets, and the failure of the federal government to provide free child care (let alone abortion and contraception). Stirring as FDR’s “four freedoms” speech continues to be, I wouldn’t want to live in 1941. We need to do more than un-install the neoliberalism app; we need to change out the operating system, and that operating system runs on caste.

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Three Views of Constitutional Political Economy

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part III of III

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William Forbath –

To recap, what constitutional political economy is good for on the labor scene is three-fold:

  1. as a movement discourse that provides moral and political legitimacy to acts of civil disobedience and law-breaking – and lends reform-minded publics and law-makers a keen sense of the stakes for our deeply eroded democracy in enacting reforms that encode a pro-labor constitutional outlook;
  2. as a source of robust accounts of substantive constitutional principles to put on the scales when defending such reforms against neo-liberal constitutional attack;
  3. and, finally, as a framework for labor movement activists, lawyers and policy-mavens to compare and argue about the practical and normative considerations favoring rival constitutional constructions for the future.

Let me close this series with the briefest of sketches of two emerging views of the way forward, with a focus on how they’re interestingly at odds on constitutional grounds.

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Janus in Appalachia

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part II of III

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William Forbath – 

Unlike the workers’ organizations in Kate’s study, just about everything the striking teachers did in West Virginia and Kentucky fell outside the bounds of legality – the strikes themselves, the efforts to “bargain” over not only teachers’ pay but also the states’ miserly education budgets and unjust tax codes, even the stab at collective bargaining itself. It may have been because their demands were broad-based and popular that the striking teachers suffered no legal sanctions and state repression along the way. But not every collective action on the part of hard-hit public employees in red states (or the federal government) is likely to be so lucky. As the anti-strike injunctions and arrests roll out, labor constitutionalism will beckon.

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The Labor Movement Never Forgets?

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part I of III

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William Forbath – 

Is it really a good idea for liberals and the left to be making constitutional arguments against economic inequality? Give it a rest! Take a break from constitutionalizing everything.  And don’t talk about “taking the Constitution away from the courts.” The Constitution always leads to the courts, and the courts are not our friends, certainly not when it comes to fighting economic inequality.

That, in a nutshell, is one reaction to articles and a book-in-progress by Joey Fishkin and me, about what we call The Anti-Oligarchy Constitution. There’s something to be said for this reaction, and I’ll spell it out in a moment. But in the end, I think the arguments in favor of attacking economic inequality by pushing a left-liberal “constitutional political economy” outweigh the arguments against it.

In a nutshell, the arguments in favor of the notion come down to this.  It’s not easy to unpack why the stakes in combatting gross economic inequality are not only about fairness and distributive justice, but also about political freedom and democracy. Constitutional discourse can make that point sharp and resonant. Historically, in the U.S., constitutional-political-economic discourse was crucial to making the case for the proposition: No political democracy without social and economic democracy. It’s time to reinvent that discourse.

I’m going to use labor law as my main setting here. Labor law is the terrain on which Kate Andrias has written a great, sustained critique of Joey’s and my work, in the “Give it a rest!” vein. Responding to Kate’s critique seems a good way to test our views.

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Techno-utopian, Cyclical, Political: Reconsidering the Path of Legal Employment

Frank Pasquale –

About a decade ago, when legal employment dipped sharply, there was a raging debate on the future of the legal profession. Some said the drop reflected a permanent decrease in legal work. The logic here was simple: computers were increasingly capable of completing more sophisticated projects. Having eclipsed paralegals in some document review tasks, they would, we were assured, soon supplant attorneys at writing briefs. These techno-utopians also evoked (what they called) a market logic: the more competition pressed firms to become more efficient, the more software they would deploy.*

Others saw the dip in employment as cyclical. It wasn’t just lawyers who suffered in the wake of the global financial crisis; employment in many fields fell. A drop in effective demand was shrinking the economy as a whole. The cyclical school predicted that when the economy rebounded, jobs for attorneys would also recover.

I will not attempt to adjudicate the dispute here. The most vehement techno-utopians, who predicted mass closures of law schools, the “end of BigLaw,” and obsolescence for attorneys, have ended up looking silly. The legal profession did not become the modern-day equivalent of buggy-whip manufacture. Even paralegal employment has been on the rise. In the broader economy, the techno-utopian story has fared even worse. One of its prime policy ideas—the notion of a “skills gap” crippling the economy thanks to workers’ lack of education—has been widely debunked. On the other hand, fewer persons are becoming lawyers today—an indication that the field is shrinking in some areas, to the chagrin of cyclical-ists.

Each approach is performative, in the sense that it not merely describes the world, but also prescribes future action. From a techno-utopian perspective, it is good to see fewer Americans becoming attorneys, because so many are performing roles that can be automated. From a cyclical perspective, growth in the number of lawyers is a positive trend, since it both reflects and manifests more economic growth generally. But it is possible that each of these economics-driven schools of thought is missing a bigger picture issue: namely, the political and social valence of legal work and its fair compensation. That is where discussions of the legal profession need a political economy perspective, rather than a merely economic one.

This political economy perspective should encompass many concerns. This post focuses on two: the beneficiaries of legal work, and its nature. My main point is that then trends which both techno-utopians and cyclical-ists celebrate as vindicating their own points of view, are ambiguous as to their effects on society generally.

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It’s Mine, and Yours

Rashmi Dyal-Chand –

I teach in a law school where most students and faculty pride themselves on falling somewhere along a spectrum of progressive, extremely progressive, socialist, and left anarchist. Thus, every year, usually within the first month of starting my first-semester property law course, I find myself surprised that the vast majority of my students appear to be intuitively and deeply committed to the idea that property ownership is and should be fundamentally about exclusion. Many of the same students who demonstrate depth of understanding about issues of discrimination, inequality, and power, voice the intuition that exclusion is somehow essential to those of us in the 99% (including their family and friends) without really considering the ways in which exclusion produces and maintains maldistribution.

Regularly, the first instance when students voice this commitment during class is when we discuss Jacque v. Steenberg Homes, in which an elderly couple sued a manufacturer of mobile homes for trespass when the defendant crossed an unused portion of their land for the purpose of delivering a mobile home to their neighbors. I have long used Joe Singer’s casebook, and I start my course with a unit on trespass that begins with State v. Shack. Thanks to Singer’s pioneering analysis of public accommodations law as central to understanding the principle of access in property law, I spend much of the trespass unit discussing the balance in trespass law between exclusion and access. Yet when we get to Jacque v. Steenberg Homes, students voice their intuition that the Jacques had the right to exclude the mobile home company from their property. “Why?” I ask, “Their property was in no way harmed by the defendant’s use of it.” They typically answer with some version of: “Because the defendant is a big corporate entity and the Jacques have very little power. The only power they have is over their property. We can’t take that power away.” “Well,” I ask, “what about the fact that mobile homes are a major source of affordable housing in this country? What if the company was doing its best to limit the costs of installing affordable housing on the neighboring property in order to avoid transferring those costs to the Jacques’ neighbors, who may not have been able to afford those costs?” For years, when we had this conversation, the students remained resolute. They said, for example, that the larger point still remained that corporations have too much power in this country and that property rights are our defense to such power.

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The Racial Wealth Gap and the Question of Time Zero

Michelle Wilde Anderson

Each year teaching Property Law, I have taught many of the big cases and topics on race and property law, such as M’Intosh and Dred Scott; segregationist turbulence in rights of reasonable access; public accommodations law; racially restrictive covenants; the Fair Housing Act. I never quite had a cohesive idea about this—they each seemed formative.

Meanwhile, evolving case law and politics have made it clear that we still have a basic disagreement at the heart of American law and politics, and my students carry that question with them into class: On matters of race, did we reset the playing field of property to start a merit system where fair access to markets would govern? Did we create a new Time Zero—for instance, when LBJ signed the Fair Housing Act as a gesture of solace and appeasement seven days after Martin Luther King, Jr.’s assassination?

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Property Law as Poverty Law

Michelle Wilde Anderson –

I recently interviewed a man in a weakened rural town who makes sausages for a local meat packing business on the 3am shift. He told me about a homeless woman who had come to the meat shop one dark morning with blood-soaked hands. Delirious with cold and exhaustion, she had punched in the glass on an abandoned burrito shack to shelter from the cold rain overnight.

For her, housing and land still matter. The forces of weather and gravity mean that 100% of people need shelter, with a patch of dirt for it to stand on. More than ever, it seems that housing and land matter most for understanding poverty and rising inequality. An average of more than 550,000 people were homeless each night in 2017, and 6,300 people are evicted in the US every single day. I live in San Francisco, where just yesterday I passed by 40 or so tent shelters on sidewalks, plus two Lamborghinis worth at least $250,000. I’ll guess that those cars don’t spend their nights outside.

The 1L introductory Property Law course isn’t usually about how law helps protect money and drive poverty, but I think it could be. Teaching it as a class mostly centered on land helps it get there.

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