Last Week’s Surprisingly Deep Victory for LGBT Workers

Last Week’s Surprisingly Deep Victory for LGBT Workers

This post was originally published at Jacobin.

Kate Redburn–

Last Monday, the Supreme Court ruled that employment discrimination on the basis of sexual orientation or gender identity is prohibited by Title VII of the Civil Rights Act of 1964. The decision brings employment law in line with public opinion: a majority of Americans favor employment protections for LGBT people, and in 2015 the Harris Poll revealed that nearly a quarter of Americans believed that these protections were already enshrined in federal law.

The opinion, like today’s DACA decision, came as a shock to legal observers. The Supreme Court is a deeply conservative institution, currently occupied by five solidly conservative justices. It seemed beyond hope to imagine that a majority would deliver the “landmark ruling” they did, even though advocates stood on extremely solid legal ground: they persuasively applied conservative methods of statutory interpretation to Title VII.

The surprise decision has been met with much enthusiasm, and some skepticism, from supporters of LGBT justice. Make no mistake: the opinion in Bostock v. Clayton County, written by Justice Neil Gorsuch, could have been much better. It should have included language linking the LGBT movement to the broader federal civil rights framework, acknowledging the history of discrimination against LGBT people. Instead, we got a skeletal affirmation, that in formalist textual terms, means sexual orientation– and gender identity–based discrimination qualify as discrimination “because of sex.” (Courts have already ruled that the law prohibits discrimination on the basis of sexual stereotypes, but Justice Gorsuch reasoned from the meaning of the words “because of sex,” and found that discrimination against gay, lesbian, and transgender individuals is always rooted in bias about sex.)

But this is still a victory worth celebrating.

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Socialism Past and Future – or Socialism is Past, and the Future?

This post is part of our symposium on socialist constitutionalism.

Álvaro Santos –

socialist roseForbath’s timely essay revisits the history of socialism in the hopes of informing a possible future. He calls our attention to the legal ideas and institutions that gave form to social democracy as a compromise between socialism with liberalism. Inspired by this past, Forbath calls for a political economy analysis of constitutionalism, which constitutional scholars seem to have traded for an obsession with separation of powers and federalism questions. When scholars do look at questions of welfare, they focus on the judicialization of social and economic rights. Moreover, he argues, these scholars tend to look at early 20th century social rights as the inchoate form of more robust and justiciable modern ones. Forbath defies this narrative persuasively and compels us to look at the ambition, vision and craft of the social jurists. In his telling, Weimar is not a cautionary tale but an opportunity for a do over. There’s much to like, and learn, from rekindling this vision of social democracy. In what follows, I invite other characters to this story, drawing from Mexico’s constitutional history, and raise a few questions about the limits of the social democratic bequest as a compass for our imagination.

A central point of the essay is the rejection of today’s institutional lenses to analyze the social democratic past. Forbath makes clear that those early constitutions of Weimar (and Mexico), as well as the new legal regimes and regulatory bodies they inaugurated, were not centered on courts. In fact, they were often suspicious of courts. Their agenda relied more on the agencies of the administrative state, its bureaucracy and expertise. Forbath is eager for us to replicate the social jurists’ ambition and their work of legal engineering.

I wonder, however, whether contemporary scholars’ court-centric vision of constitutional law limits their attention to questions of political economy. Constitutionalists may have a narrow field of vision because their work centers on whether issues are justiciable in the first place, so that those big old questions of distribution of power and authority between capital and labor, of institutional mechanisms for sorting out conflict and inducing cooperation, and of the mediating and managing role of the state in the economy, are rarely reached. It seems that from Forbath’s perspective, contemporary constitutional scholars wishing that social democracy was here may have exchanged “a walk on part in the war for a lead role in a cage,”

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The Relevance of Weimar

This post is part of our symposium on socialist constitutionalism.

Samuel Moyn –

socialist roseWilly Forbath’s return to the Weimar Constitution is inspiring. I will just point out of a couple of limits to turning back to it in the present — limits that strike me as difficult to overcome. First, the Weimar Constitution’s nod to worker empowerment presupposed the structure of the (local and global) economy in 1919, now almost unimaginably different; second, it does not follow from the fact that progressive political economy is a priority that constitutionalizing socialist principles is too.

In the past generation, especially after September 11, the Weimar text was invoked principally as a cautionary lesson about what happens when emergency powers become devices for scuttling liberal democracy. As Forbath observes, there was a lot more to the Weimar constitution than that. It ought to be canonical for another reason, which is its commitment to worker empowerment, or even some version of “socialism.”

Forbath is right to challenge “Whiggish” histories that forget the desire for “big structural change” at a time of a massive mobilized working class, in a country with a socialist party, at a moment when a caesura in national history opened new possibilities. For sure, the Weimar Constitution was not the birth certificate of contemporary juristocracy, which finds its highest aspirational goal in celebrating the potential of judges to fulfill economic and social rights, or even to strike a blow for distributional equality. As Forbath says, notwithstanding important substantive moral goals constitutions can register, they succeed or fail as devices of the organization and use of power, including for ends not foreseen at the outset. And Weimar’s was promising because it was written with worker empowerment in mind.

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Socialism Past and Future (Part II of II)

This is the second of two introductory posts in our symposium on socialist constitutionalism.

Willy Forbath –

socialist roseIn my last post, I began a discussion of the Weimar Constitution as one of the first constitutions containing provisions for social and economic rights (SER), and perhaps the very first one, in which socialists had an important hand drafting and expounding. The literature on constitutional SER misses a great deal when it casts the Weimar Constitution as a weak, infant version of later SER constitutions, which grew stronger over time.

Recently, I have been looking at the Weimar Constitution and the writings of the drafters of and commentators on its social law provisions.   The social law portions of the Weimar Constitution are not a baby version of the grown-up post-World War II welfare rights constitution.   The social law provisions of the Weimar Constitution included rights, but they were chiefly about structures and powers. They outlined an interlocking framework of rights, structures and powers that aimed to empower workers and other lower class and subordinate groups to participate on an increasingly equal footing in running individual firms and in shaping and governing the broader political economy. The constitutional vehicles here were both trade unions and also a federated structure of democratically constituted workers’ councils at local, regional and national levels of economic governance. Workers in Bavaria and elsewhere waged bitter general strikes demanding that councils find a place in the Constitution; and they succeeded.

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Socialism Past and Future (Part I of II)

This is the first of two introductory posts in our symposium on socialist constitutionalism

Willy Forbath –

socialist roseSocialism is back. But what is socialism? We have forgotten a lot about what it meant in its salad days, a century ago. And what we have forgotten may include what might be compelling today.

Universal health care and basic income, public investment in green industry and infrastructure, radical changes in corporate governance, nationalizing fossil fuel: To skeptics and foes, all these ideas smack of socialism. What about those of us who support them? Does that make us socialists? What are the stakes in revisiting, and maybe reinventing, the socialist tradition?

This series of two blog posts is a rough, tentative, brief first pass at that question, using a bit of comparative constitutional law and history.  Comparative constitutionalists are like everyone in forgetting much of what socialism – and socialist constitutions – were about in their heyday.   I’ll point out a couple big, forgotten things that seem worth remembering in a time of democratic disrepair.

To generalize vastly, socialism is usually seen as falling into two varieties:

(A) State Socialism – which means government ownership of the means of production. The Soviet Union was one version of this. Nationalized industries, like railroads or oil, in many parts of globe, are another version.

(B) Social Democracy – which means a Northern European style welfare state: public provision of social goods and social insurance. When Bernie Sanders talks about democratic socialism, this is what he talks about. Healthcare for all; free higher education for all; and tax the rich to pay for the universal provision of these and other social goods.

Neither notion is exactly wrong.   But neither one captures the core meaning of socialism in its historical heyday – not in the US; nor in Europe. And from what little I know (readers will correct me, I hope), not in Latin America, either.

Instead, the core meaning was something like this: Socialism means the extension of democracy and democratic institutions into economic life. Liberal democracy could not deliver on its promises of liberty and equality unless the precepts of democracy and republican self-rule were extended from the sphere of politics into the sphere of social and economic life.

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Progressive Democracy and Legislative Form

Blake Emerson

Adrian Vermeule recently made a stir with his proposal for a “common-good constitutionalism.” He argued that originalism had “outlived its utility” now that the right had gained power on the federal bench. Instead it was time for a “substantively conservative approach to constitutional law and interpretation.” We got only a few peaks at the substance, however. It included labeling individual autonomy, including abortion rights, as “abominable,” and jettisoning “the libertarian assumptions central to free speech law.”

Responses have examined whether Vermeule’s constitutional theory is defensible, or rather winks more or less subtly at authoritarian or even fascist ideas. But to me the most striking aspect of the argument was not the substance of the values Vermeule would ascribe to the Constitution, but rather the form of his conservative constitutional structure. Vermeule proposes a version of constitutionalism that, much like the Law-and-Political-Economy framework, goes “Beyond the Twentieth Century Synthesis” in abandoning the liberal separation of the state from the “private” spheres of the market and family. In contrast to the LPE approach, however, Vermeule’s constitution puts hierarchy at the center of its moral universe, with a strong executive at the top. In the mirror of Vermeule’s constitutional frame, we can glimpse the progressive alternative.

Common-good constitutionalism “does not suffer from a horror of political domination and hierarchy,” but rather expects that “[s]ubjects will come to thank the ruler” for fostering “more authentic desires.” Vermeule thus emphasizes a pre- or post-liberal form of government in which the people are rightfully subject to the discretionary authority of political leaders. He prioritizes the executive branch over others, favoring “a powerful presidency ruling over a powerful bureaucracy,” which acts as “the strong hand of legitimate rule.”

These structural commitments are in line with the theory of the “unitary executive,” which can be traced back to Alexander Hamilton’s defense of a “vigorous” presidency in the Federalist. That enlarged conception of the office has continued to influence landmark Supreme Court decisions from Chevron to the Travel Ban Case. But there is another thinker who deeply informs Vermeule’s analysis: Carl Schmitt, the conservative critic of Germany’s Weimar Republic who became the crown jurist of the Third Reich before falling out of favor with the Nazis.

For Schmitt, the Weimar Republic showed that liberalism’s commitment to positive law, rational deliberation, and individual rights was too brittle to withstand serious economic and political crises. Parliamentary democracy gave way to a “governmental state” in which the executive rather than the legislature made the important decisions. Schmitt did not bemoan this transition, but rather envisioned a direct connection between the substantive values of the Volk and the bureaucratic apparatus of the state. Vermeule, of course, disavows Schmitt’s Nazism, and instead fastens onto his critique of liberal legalism, as well as his interest in religious-bureaucratic political form. He follows Schmitt in privileging the executive branch as the best vehicle to carry out a conservative ethical vision.

Some of Schmitt’s most prominent opponents on the left offered up models for an alternative, social-democratic economy of political power. Scholars like Hermann Heller and Franz Neumann endorsed the norms freedom, the rule of law, and the separation of powers that constitute the liberal ideal of the Rechtsstaat. But they argued that those norms could only be preserved under the conditions of twentieth-century capitalism by transforming the bourgeois Rechtsstaat into a social Rechtsstaat. Such a social-constitutional state would infuse economic relations with material equality, and ensure that monopoly power did not undermine individual and collective autonomy. In stark contrast to Schmitt, these thinkers prioritized the legislature over the executive, and bound the latter closely to the norms of the former. Because Heller and Neumann’s hope was to institute general, egalitarian norms through democratic processes, the legislature had to play the lead constitutional role. Momentary decisions of a charismatic leader would not suffice to firmly entrench social equality.

This correlation between the left and the legislature, on the one hand, and the right and executive, on the other, also has purchase for us in America today. Conservatism of Vermeule’s and Schmitt’s variety is grounded on authority, discretion, and hierarchy. It relies on the obedience of subordinates to the commands of superiors who know better, have keener judgment, or who command greater allegiance. That vision runs like a red line through reactionary models of both economic and political structure. While the rhetoric of freedom, choice, and competition pervades the American right, its legal interpretations and policies often function to preserve various kinds of concentrated power, exercised by some persons and groups over others. The last forty years of conservative ideological dominance has generated stark social hierarchies: employers now exercise arbitrary power over employees, monopolists control consumers and smaller firms, capital accrues the gains from labor; status hierarchies surrounding religion, sex and gender, and race are conceived to reflect a “natural” ranking of superior and inferior.

Executive-centered constitutional structure works in parallel to such legally sanctioned social domination. It subjects the hitherto “independent” civil service to the strong hand of presidential leadership, displacing various forms of disciplinary competence, administrative due process, and public input with assertions of value by the “Chief Executive.” This affinity for an “unbound” executive has animated conservative constitutional scholarship since Reagan. As Bill Barr claimed in his strident criticism of the Mueller Investigation, the president “alone is the Executive branch,” and subordinate executive officers are merely “his hand.”

Progressives, by contrast, should be steadfastly committed to legislative constitutional forms. That is because democracy is concerned not with the command of a single person but with reaching a decision amongst a plurality of persons. That process respects the equal worth of each participant. It models a form of human association that recognizes autonomy and yet brings people together to identify shared goals and values.

Legislation should be viewed as an iterative process of popular will-formation. David Grewal and Jedediah Britton-Purdy have shown how democratic constitution-making is a legislative act of the sovereign people to erect a government that acts on their behalf. Ordinary legislation replicates this process within the government, as it brings together the several representatives of the people to reach binding agreements and empower marginalized groups. Maggie Blackhawk, for instance, has shown how the Indian Reorganization Act of 1934 helped to “foster power and to promote collective action” by sovereign Native peoples. Legislative rulemaking within the executive branch takes this democratic empowerment one step deeper down, giving affected groups a role in deciding how economy and society are regulated. As Matthew Cortland and Karen Tani have documented, progressives have used the public comment process during the Trump Administration to thwart unjust and arbitrary executive actions ranging from approval of Medicaid work requirements to narrowing the definition of sex harassment in education. Kate Andrias has unearthed precedents in the New Deal for establishing workplace democracy in and through the administrative process. I’ve explored in my own scholarship how this legislative version of agency procedure stretches back to the institutions and ideologies of the Progressive Era.

The legislative left therefore does not ignore or sideline the executive branch, but rather aims to recreate parliamentary values, processes, and organizations within the executive. A corollary to this vision is that the president should not be able to fire executive officers at will, as the unitary executive theory would hold. The scope of the president’s removal power is currently before the Court in Seila Law v. CFPB. An executive branch that honors democratic principles should recognize a qualified equality amongst officials. Officers whom Congress has given rulemaking powers should not be subject to implied direction by the president, but rather should lead a broader deliberative process that incorporates affected publics.

Such a legislative constitutional structure, it should be noted, runs counter to strong tendencies and historical traditions amongst American Progressives. From Teddy Roosevelt and FDR to LBJ and Obama, egalitarian programs have often relied on an empowered presidency. And I don’t wish to malign the important persuasive role the president can play as a spokesperson for the people, nor the movement building potential of executive action. But much is lost in pinning our hopes on a particular presidential candidate and what she or he can accomplish once in office. That approach is particularly likely to fail with a conservative Supreme Court that will strike down “novel” administrative actions, or deny deference on “major questions.”

Progressives and social democrats are concerned with freedom, equality, and solidarity. While there might be temporary victories for such values in the hands of a capable and charismatic president, a durable democratic future must take a form that mirrors democratic substance. If we want to recognize and institute the equality of persons, we must all become legislators.

Blake Emerson is Assistant Professor of Law at the UCLA School of Law.

The Constitutional Role of Economic Coordination Rights

This post is part of our series on the political economy of labor & the constitution. You can find all of our posts on this topic here.

Sanjukta Paul –

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

There’s a common notion that pervades legal and policy debate—including among fairly liberal Democrats—that collective bargaining mechanisms, and even public coordination of markets through minimum wages and working conditions, distort market outcomes and are therefore inefficient (though they may be justified by countervailing considerations). This position immediately sets up a kind of presumption against labor coordination or public coordination of markets to benefit workers, a presumption analytically and normatively supported by Law and Economics.

Too often, progressive and even left responses have been limited to asserting that considerations other than efficiency should be balanced with efficiency concerns—we should balance fairness, or humanitarian concerns, with efficiency for example; or worker voice, living wages, and so forth are indeed efficient because they correct market failures. Some critiques rely heavily on the idea that labor is different from other commodities, which can imply that we can understand everything else as a potential commodity.

While these approaches often have merit, the Law & Political Economy orientation should attend to deeper critiques of L&E emanating from fields such as economic sociology and heterodox microeconomics. These critiques call into question the coherence of basic theoretical assumptions that are indispensable to L&E’s prescriptions about what is efficient in the first place. For example, many economists now challenge the idea that prices are determined according to orthodox microeconomic assumptions, and that these “market prices” in turn maximize welfare by allocating resources in an optimal manner; a number of sociologists, meanwhile, emphasize the indispensable role of social coordination in markets.

Also, Law & Political Economy itself can pose a powerful internal challenge to L&E, by reviving and updating the old legal realist insight that all markets are legally constructed, and by applying that insight in the weeds of particular areas of law that today have been all but given up to L&E. Relatedly, the Legal Realist move of displaying, in detail, the historical contingency of certain rules of law takes on especial importance in the context of an analytic framework like L&E, which assumes certain market rules that are given by law, but also often ignores legal contingencies and treats law as derivative of independent economic principles.

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A Law and Political Economy Agenda for Labor and the Constitution

This post is part of our series on the political economy of labor & the constitution. You can find all of our posts on this topic here.

Kate Andrias

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

At the end of September, labor law scholars gathered at a conference focused on “Labor and the Constitution: Past, Present, and Future.”  There, a group of us considered the problem of “Political Economy and the Constitution”—and the extent to which the Law and Political Economy (LPE) analytical frame can be useful in building a more democratic and egalitarian future for workers.

As readers of this blog know, LPE represents an emerging approach in legal scholarship—or at least a return to an old approach that had long been dormant.  Yet, in contrast to other areas of the legal academy, attention to questions of economic power never disappeared from view in labor law.  Maybe more than in any other field, people who study the history of the workplace and workers’ position in society have long recognized the importance of power. They have been acutely aware of connections between the political and the economic, between markets and law. Continue reading

A Political Economy the Constitution Requires

Join us this week for a series on the political economy of labor & the constitution. 

Willy Forbath –

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

“Political economy” has an antique ring. More than a century ago, the field of “political economy” began to give way to what was called “economics.” By the mid-twentieth century, political economy was forgotten; economics ruled the roost. But what is old is new again. Political economy is coming back. Economics sidelines the distribution of wealth and power; political economy puts it at the center. Economics claims to be value-free; political economy asks: “What is the good economy?”

Because it blends the normative with the analytical and the economic with the political, political economy always has lent itself to constitutional discussion. And when you go back to the eighteenth , nineteenth and early twentieth centuries, you find that judges, lawmakers, reformers, advocates, constitution-makers and policy-makers of all stripes looked at and argued about the Constitution through a political economy lens and the political economy through a constitutional lens.

They started from the premise that the Constitution was inevitably entwined with – and not neutral with respect to – the economic order. Thus, many matters that we see as policy debates about the maintenance or reform of institutions affecting the distribution of wealth and economic power they saw as the stuff of constitutional law and politics.

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The New Black Codes: Racialized Wealth Extraction, Economic Justice, and Excessive Fines Schemes in Timbs v. Indiana

Emma Coleman Jordan and Angela P. Harris –

timbs.jpegWhen Tyson Timbs’ father died, he left his son an insurance policy. Timbs used $42,000 of that money to buy a Land Rover SUV, and he was driving that car when he was arrested for selling heroin to an undercover police officer in Indiana. Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft, and the judge sentenced him to one year of home detention, five years of probation (including a court-supervised addiction treatment program), and $1,203 in fees in costs.

The State of Indiana, however, was not done with Timbs. It hired a private lawyer to bring a civil forfeiture action against Timbs’ Land Rover, on the theory that the vehicle had been used to commit the crime of transporting heroin. The court held that the Land Rover was indeed used in the commission of an offense, but denied the requested forfeiture, observing that its purchase price was more than four times the maximum he might have been fined for his actual conviction. Forfeiture of the Land Rover, the judge determined, would be grossly disproportionate to the gravity of Timbs’s offense, and for that reason it would be unconstitutional under the Excessive Fines Clause of the Eighth Amendment. The Court of Appeals of Indiana affirmed that decision, but the Indiana Supreme Court reversed on a different ground, holding that the Excessive Fines Clause applied to federal but not state governments.

When the United States Supreme Court agreed to hear Timbs v. Indiana, anticipation ran high across the political spectrum, and revealed some strange bedfellows. The Southern Poverty Law Center and the Cato Institute appeared on the same amicus brief. Justices Gorsuch and Sotomayor energetically agreed with one another during oral argument. However, when the Supreme Court issued its unanimous decision on February 20, 2019, the opinion offered less than interested parties might have hoped for. Justice Ginsburg, writing for the Court, affirmed that the Excessive Fines Clause does apply to the states, as “incorporated” into the Due Process Clause of the Fourteenth Amendment, and held that in rem forfeitures fall within the Clause’s protections. The Court, however, did not offer a standard for deciding when a fine is excessive. From our perspective, moreover, Timbs v. Indiana represents a missed opportunity to discuss racialized wealth extraction in its past and present forms, and to situate the Excessive Fines Clause within the constitutional debate about economic rights that arise from predation by the government itself.

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