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Constitutional Structure and Social Justice: A Dissenting View of Normative Legal Thought

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Freedom is an attitude that is expressed in the action of living as best one can within the constraints of an unjust social order.

Omar Swartz

A theme running throughout American legal history is that speaking “truth to power”—long a mantra of progressive politics—is not enough to create socially just society. Instead, we must marshal moral power against state power, must use our bodies, our voices, as well as all the resources of nonviolent resistance to create culturally salient avenues for resistance and constructive institution building. The social theory we have, our knowledge of history and law, and the relative privilege we enjoy as intellectuals makes this commitment to direct action particularly salient. This is the power behind all national, ethnic, or other social liberation movements and the power behind the yearnings of all people to be free, no matter where they are and which social order stifles their existence. For freedom is an attitude that is expressed in the action of living as best one can within the constraints of an unjust social order.

While readers may understand theoretically what I am saying, we seldom act as if this knowledge mattered. We are often scared, reticent at the ways such discourse becomes marginalized as “radical” and dismissed as disrespectful or irresponsible. Here is where an understanding of the structural limitations of the law helps us to understand that social change comes from working outside the system as well as from within: thus, it is time to view protest not as a revolutionary moment in time, but as a strategic and pragmatic platform for living symbiotically with others. Seen this way, the poetry and life-affirming nature of activist rhetoric can be seen as the lifeblood of democracy, indispensable for maintaining the quality of our lives, in contrast to what our political establishment, in particular the courts and the police, holds up as “ordered liberty” which is far from sympathetic to ends of social justice.

What I wish to reemphasize here—my argument is not new, just underappreciated—is that an important barrier to a national commitment to economic justice on which social justice depends is the Federal Constitution. Such claim does not intend to repudiate the virtues of a constitutional state, as constitutions play an important role in helping to stabilize many societies and, thereby, enable them to flourish. Societies without such constitutions are often unable to actualize their collective aspirations. Constitutions represent order and structure, and this essay should be read as an extended argument for an increased order and structure—particularly in the economic realm—to improve the quality of community life for all U.S. citizens. It is an argument against free markets and laissez-faire republicanism. A sensibly constructed constitution is a way to enact and to normalize more positive economic and social relationships than exist currently. Constitutions, in short, can be extremely useful. A text, however, is only as valuable as it is drafted, interpreted, and applied. The questions we need to ask are: How does the Constitution help us and who does it hurt? Alternatively, we need to ask: how long can we survive as a nation with such gross social, economic, and racial inequality as we now face?

Specifically, this essay presents a theoretical discussion of the class dissymmetry embedded in the Federal Constitution. It argues against the tendency in the United States to over-emphasize the importance of the Federal Constitution as a bedrock of human rights. The Constitution is nothing more than language and is no more important than the importance people invest in the narrative provided by the text. Because of the Constitution’s legal preeminence in the United States, this investment demands the most stringent critical inquiry. To accept passively society’s dominant portrayal of the Constitution, to be swayed by the mysticism of the Supreme Court, and to defer uncritically to what the nation’s leaders claim as truth is to mistake the Constitution for a sacred text, elevating nationalist pride to the status of dogmatic religion. Democracy and liberty are ill-served by such devotion. We can do better as a nation.

Let us examine the Federal Constitution and social injustice.

The Constitution can generally be seen to serve interests that are fundamentally at odds with social justice. Although U.S. case law contains examples of meaningful Constitutional victories that have brought relief, hope, and opportunity to millions of people, this social progress has come at the price of an unjust bargain that we should no longer as a society respect. The terms of this bargain can be stated as follows: Poor, average citizens of the United States were granted specific (and often limited) fundamental liberties such as freedom of speech and religion; in return, the concentration of massive wealth in the United States was granted insulation from political accountability and moral responsibility. Stated differently, the poor received protection for symbolic resources, whereas the wealthy received protection for their material resources. Furthermore, the protection for speech and prayer pales in comparison to the protection of private property. This latter protection is perhaps the essential concern of the Constitution.

As wealth is power, extreme constitutional protection for property is terrifying. Although citizens have been granted protections from certain forms of state action, they received few protections from private action. As power in the United States is largely private, many citizens—particularly the working classes—live under a de facto tyranny. In other words, private power in the United States is undaunted by the right of citizens to engage in free speech and religious expression, a small cost for the protection of great wealth (and, as every first year law student learns, the protections of the Constitution apply only to the federal and state governments and are not enforceable in private relationships). Furthermore, the wealthy are unconcerned that the poor are free to embrace Catholicism, Lutheranism, Southern Baptistism, or Pentecostalism for spiritual solace. These distinctions among Christian religions only had a political importance to the ruling elite when the Church of England (an economic monopoly buttressed by the British Empire) declared itself to be the only true church and, for centuries, waged war across Europe against the rest of Christianity.

Because the Framers sought to avoid the intra-Christian religious warfare that plagued Europe for many centuries, the notion of “free religion” originally was conceptualized as applying among the different Christian faiths. This notion is reflected in an influential 19th century commentary on the U.S. Constitution, written by Supreme Court Justice Joseph Story. Story wrote that the “real object of the [first] amendment was not to countenance, much less to advance, Mahometanism [sic], or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.” The fact that Judaism, Islam, or any other non-Christian religion have space to flourish in our society provides little threat to established power because normative religion remains Christian and wedded to the political status quo.

As almost no political or economic power exists outside of the control of the two mainstream political parties in the United States, both of which represent the interest of the wealthy, social elites do not fear isolated pockets of dissent, such as sparsely attended public protests at ignored rallies or the publishing of marginally placed books and newspapers. In other words, although freedom of speech and religion are valuable and should be championed, they are, in practice, largely inconsequential. For this reason, the power elites allow such liberties to exist. For example, until the mid-1960s, members of the United States Communist Party risked summary arrest and imprisonment for nothing more than the fact of their party membership. The Soviet Union, to which the U.S. Communist Party was aligned, was considered such a threat to the United States that, on balance, the liberty of free speech and association granted to U.S. citizens—who happened to be members of the Communist Party—was outweighed by the interest of the state. When the perceived threat dissipated, there was less motivation for persecuting U.S. communists. In other words, free speech is afforded only to those dissidents whose causes are not seen as consequential. To the extent that influential speech can have an effect, that speech is often suppressed, as the Occupy Movement was suppressed when it refused to step down and allow the nation’s business to proceed as normal.

In addition to the Constitution, the U.S. system of federalism creates difficulties for the working classes to develop collectively political power. Federalism reflects the principle that political authority in the United States is constituted by individual sovereign states. Each of these states surrendered a portion of its sovereignty to create federal authority. Unlike the states, the federal government only can exercise specifically delineated power; the limits of this delineation constitute the limits of federal existence. In other words, the U.S. government is not a centralist power. As the Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” By allocating sovereignty to discrete state legislatures, the founders of the United States rejected the organization of state power and the civil law tradition, as found throughout most of Europe. The federal frame, in turn, was a document intended to disperse the power of different governmental institutions, as well as to resist social factionalism. While not entirely unreasonable given the history of oppressive monarchy, this is an inherently conservative strategy, which is why “state rights” rhetoric is so popular among reactionary politicians and their mostly white and religious supporters. In an sense, the values of provincialism outweigh the virtues of cosmopolitanism.

Under a federalist system, no single political unit exists for a worker collective to cultivate influence; in other words, there is no critically independent mechanism that can be targeted to institutionalize and protect political labor gains. As a result, the political struggle of the working classes must proceed piecemeal—state by state—with the unlikely approval of the administrative, legislative, and judicial branches of the state and federal governments. This fragmentation provides the enemies of labor many opportunities to frustrate labor’s progressive objectives, as we saw recently in Wisconsin under the leadership of Governor Scott Walker. Indeed, organized labor has weakened so much in recent years as to be politically irrelevant.

In addition, the fragmentized nature of national authority creates difficulties for willing state and community governments to enact pro-labor legislation (assuming approval by the state judiciary). We are painfully aware that, under the manner in which the economy is currently organized, the more an industry invests in the well-being of its workers, the less competitive that industry becomes against similar industries that do not provide similar labor benefits. Political difficulties, therefore, arise when a sympathetic legislature mandates improved working conditions and other states do not require such conditions; this leads to capital flight and to home-state unemployment. Federalism pits states against each other (just as globalism pits nations against each other) and encourages a “race to the bottom” in which everyone but the most privileged loses. We understand this dynamic but have lost the political will and emotional wherewithal to resist it.

Structurally, the United States has an extremely conservative government which then encourages a conservative populace, as more liberal minded citizens grow discouraged and alienated. This changed only slightly when Franklin Roosevelt was forced by the critical exigency of the Great Depression to save the constitutional system by forcing industry to accept fundamental improvements in working conditions for labor. In Germany, in contrast, for more than two generations before the New Deal, the effort to achieve political recognition for labor was easier (although also violent); labor activists had only to convince the German leadership in the 19th century that the working classes would no longer tolerate political marginalization. Consequently, Germany was one of the earliest European nations to create a social-welfare state, and other European nations soon followed—in some cases, seventy years before comparable developments occurred in the United States. A similar phenomena occurred with the issue of African-American civil rights in the United States. For 100 years after the abolishment of slavery, the descendants of slaves were systematically denied their civil and human rights. The federal government made negligible effort to alleviate the profound suffering of the African-American community. This changed under the exigency created by the mass civil disobedience of the Civil Rights movement. Goaded by tumultuous and passionate protest, and shamed by international criticism, the federal government expanded constitutional protection to the African-American community. Sadly, such protection has not protected the African-American community from third-world type poverty, police violence, and the scourge of mass incarceration.

Fear of the property-less majority seizing political control is one of the primary reasons why the federal constitution was drafted. One framer, Edmund Randolph, warned of “too much” democracy that would empower the undesirable elements of society and impede on the prerogatives of the wealthy. Another, Alexander Hamilton, warned of an “excess of democracy”—one that democratized the means of production or at least socialized or made claims upon the wealth that comes from the system of “free” labor which we so romanticize. As the United States became a powerful industrialized nation, the protection of the common law rights of contract and property increasingly came to constitute the mainstay of U.S. constitutional law.

The emergence of this judicial ideology is traced to a dissent in The Slaughter-House Cases (1872), as well as to an influential treatise by the Chief Justice of the Michigan Supreme Court, Thomas Cooley. Cooley argued that substantive limitations were imposed on state governments by the “due process” clauses of the Federal Constitution. Cooley defined the right to private property as “sacred” and held that this right predated the Federal Constitution. Therefore, popular sovereignty of the states was limited, with local governments precluded from creating any liberty interest that infringed on the property interest of the rich. Under this logic, a state would be precluded from creating a “liberty interest” in a worker’s “right to health.” Unless the state was willing to fund improved working conditions in the workplace or improved access to insurance, such a “right” would exist at the expense of an unwilling industry forced to share its material resources. To insist on industry assuming responsibility for its workers would be considered an erosion of an owner’s property right, as well as an affront to the dignity of the worker whose self-worth was conceived of as being able to rise or fall based on his/her own efforts. With a few exceptions for the maintenance of government (such as the power of eminent domain, which is being curtailed by the courts), a person’s vested property rights cannot be hindered by an act of positive law to ameliorate social inequality.

In the courts, this view of due process (which evolved to protect any “fundamental liberty,” such as property or the right to contract) first was expressed in In re Jacobs (1885). In Jacobs, the New York Court of Appeals struck down a state statute that sought to prohibit sweat shops in the cigar industry by prohibiting the manufacturing of cigars in tenement buildings. The court reasoned that the “law interferes with the profitable and free use of his property by the owner or lessee of a tenement-house who is a cigarmaker, and trammels him in the application of his industry and the disposition of his labor, arbitrarily depriving him of his property and of some portion of his personal liberty.” This reasoning was elevated to constitutional preeminence in the paradigmatic Lochner v. New York (1905), which held invalid a New York state statute limiting bakers to a 60-hour workweek and to a 10-hour workday. The Court reasoned that the statute interfered with the “right of contract” between employer and employee.

With tools such as substantive due process (and with strong ties to the financial elite), the judiciary—a largely non-elected body—appointed for itself the role of protecting private property against popular demands for accountability. The popular legislature was considered by the framers of the Constitution to be too susceptible to “class legislation.” Ironically, legislation intended to help the wealthy classes—perhaps the most dominant legislation in the United States—is seldom denigrated as “class legislation.” Likewise, as noted by the popular protest sign, “They only call it class warfare when we fight back.” To this day, and after more than a century of struggle, the working classes are at a normative disadvantage in the discourse surrounding economic matters. To protect against class legislation on behalf of the poor, federal judges are appointed by the President and confirmed by the Senate (the more popular although hardly progressive House of Representatives is altogether bypassed). Judges are appointed for life and achieve their positions through mostly conservative or at least non-progressive political criteria (witness judicial nomination proceedings in recent years). As a result, the social progress of the post-Depression era is now threatened by an ideologically excessive majority that produces pedantic readings of the Constitution to undermine the progressive accomplishments of the past. In some respects, the liberal jurisprudence of the past appear as anomalies in Constitutional jurisprudence. When they occur, progressive judicial actions are democratic deviations from a judiciary that was conceived of, and functions as, the guarantor of private rights against what the authors of the Federalist Papers called the “gusty passions” of “turbulent majorities.” Indeed, I find it difficult to maintain a positive outlook as we move forward and nothing is more important now than hope for a better future coupled with the tools to create that future. The tools may be slipping through our fingers.

On the positive side, to recognize the existence of anomalies that constitute the jurisprudential evolution of a legal morality is to embrace the notion that the law is not monolithic and can thus be challenged. While U.S. law has a distinct theme or ethos, which is toward the protection of the upper class or elite privilege, and while that does not bode well for the poor and working classes of this nation, this observation, is not the final word. Change does occur, but my thesis is that such change does not come about through systemic reform or enlightenment on behalf of the social elite, but through extra-legal struggle and sacrifice from poor people and minorities, as I suggested in the opening paragraphs of this essay. Prior to Roosevelt’s successful 1934 attack on the laissez-faire constitutionalism of the Supreme Court (possible only through left-wing pressure caused by the Great Depression), the staunchly anti-labor response of the judiciary had a devastating impact on the ability of U.S. Americans to collectively improve their lives. The more recent Great Recession failed to ignite a renewed left-wing consciousness, although glimpses could be seen in the Occupy Movement. More recently, the somewhat sustained protests against police brutality and the national callousness toward black men’s lives gives me hope that the normative legal, economic, and political orders may one day be forced to yield, if only slightly, for the sake of our common humanity.

Omar Swartz is Associate Professor of Humanities and Social Sciences at University of Colorado Denver, where he also serves as Director, Master of Social Science and Coordinator of the CLAS Law Studies Minor. Graphic from wikipedia.

Copyright © Omar Swartz. All rights reserved.

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