Constitution in 2020 Liveblog Panel 3- Social Rights

October 3rd, 2009

Panel Three:
9:00 – 10:15 Social Rights
Moderator and Commentator:  Vicki Schultz, Yale Law School
Panelists:  Risa Goluboff, Virginia Law School; Jacob Hacker, Yale University (Political Science); and Ben Sachs, Harvard Law School

My comments in blue. I will be updating this during the day so refresh often.

Risa Goluboff

Discussion of the labels of civil rights, political rights, and social rights in 19th century. Social rights, as in Plesssy, were outside of the Constitution, and were not protected. Harlan dissented in Plessy, and considered riding in a train car as a civil right, and not a social right. In the 1950’s-60’s civil rights and social rights evolved during Civil Rights movement. Term social rights fell out of use, and everything merged into civil rights. In international distinction between civil and political rights, and social and economic rights. Some literature suggests importing terminology from international sources. She does not agree with these items. Right to healthcare, education, housing are considered civil and political rights in International law. United States ratified INternational covenant of civil and political rights, but did not ratify Inernational convention for economic, social, and economic rights.

Judicial unenforceability of social rights. Some think courts will not protect and legislatures are better to protect. For Constitution of 2020, she would like robust aspirations for constitutionally enforced social rights.

Main obstacle is calling these rights social rights.

Jacob Hacker

A student once told him, “If I had 15 minutes to live, I’d spend it in your class, because it will seem like an hour.” LOL!

Hacker is a political scientist, and not a constitutional law scholar. He said, you do not have to be a constitutional scholar to talk abotu social rights because the constitution holds “limited promise.” Well, duh. This is my main objection. The constitution is an obstacle, and not an enabler for this conference.

Discussing economic inequality in America. Top 10% of Americans earn a 1/3 of national income from WW II – 1970’s. In 1970’s, was 50%. Narrow slice of top 10% making out so well. Top 1% had 9% of income. In 2003, jumped up to 23%. Person behind me proclaimed “Jesus.” Half of Americans go without health insurance. Family declares bankruptcy every 15 minutes. 45,000 Americans die because of lack of national health insurance. There is a grave challenge. So Hacker asks what is the role of the Constitution and the judiciary to address this challenge.  See my previous post. There’s a problem? So what.

Courts wont use Constitution on a positive front to address these problems. Courts should stay out of the way. Not desirable to base larger compaign for larger security on the Constitution, per se, or ground it institutionally in the judiciary. So why is this conference called the CONSTITUTION in 2020 and not the progressive agenda in 2020?

Legislatures can address these issues. Hopefulyl we will not face a Lochner court to stand in the way (read, enforce the Constitution). Talking about Ackerman’s concept of national citizenship, twin commitments to equality and liberty.

Founders, Hume, Montesqiue considered large concentrations of wealth were bad for political inequality. Vast difference in economic standing would lead to vast difference of political standing. This got tied in early 20th century to legal realists.

Adam Smith quote- “Whenever there is great property, there is great inequality.” He said Hayekians seldom bring out this quote. I want to track down the full quote becuase I couldn’t transcribe the entire quote.

When people know about greater dimension of inequality, people more likely to support redistribution.

Ben Sachs

Right of workers to engage in collective action to improve working conditions and better lives. Right? How is this a right?

The most promising avenue for workers progress is NOT constitutional perform, but legislative action. I keep hearing this same refrain. Constitution is not relevant.

How to achieve this:

1. Concerted activity by workers.
2. Action at State Houses

Economic equality and political equality, and role of unions to equalize wealth.

Campaign finance law- deal with distorted effect of wealth on politics. Commitment to political equality demands stop treating  union spending as corproate spending.

Legislative, rather than constitutional law.

“Unions and constitution have history of unrequited love.” LOL

Not much has been found to locate union rights in the Constitution. Constitution only offers minimal protection for minor collective actions. 1st and 13th amendment provide minimal protections, no right to strike. How is the 13th amendment supposed to protect right to strike? Maybe I’m ignorant.

Political power by workers, and constitution that doesn’t “stand in the way of the exercise of that power.”

We have cleared away “constitutional hurdles“to acheive collective action. Liberty of contract no longer a problem for now. Plenty of room in commerce clause to facliitate colective activity. Oi vey.

Card check will eventually pass, increased protection for organizing activity. Constitutional arguments against Card check will be raised- 1st amendment on employer speech, non-delegation speech. Not worried about objections.

Greatest promise at state and local levels. Preemption problem, political power which workers have built at state and local level cant be translated into progressive labor legislation. Amend federal stautute to allow states to experiment. Wow, he’s a Federalist!

Best bet for progress on workers progress lies in political and legislative work, first at federal level to free up state experimentation, then at state level to accomplish things not on radar in Washington.

Unions attacked for leveling distribution of income, but that is exactly their goal. Unionization means more of income of a firm goes to employees, and less to owner. Unions increase income equality.Oi vey. Spread the wealth!

Reduce income inequality, help reduce political inequality.

Congress has constrained effect of economic inequality on political sphere through campaign finance. Harder to constrain effect once you have allowed powers to establish themselves. Campaign finance laws may soon be invalided. Let’s hope so. Hillary movie FTW!

In campaign finance laws, corporations and unions should be treated equally. He thinks this is wrong.

Unions and corporation are not the same. Treasuries built from contributions of lowest paid members of society. Unions represent views of low-level workers. Corporate treasuries built differently. Limiting corporate spending has leveling effect. Limiting union spending does not achieve this. Vision of constitutional equality should help to achieve this difference.

Vicki Schultz

She commented and summarized the other panelists. Questions for panelists.

Question for Risha: Social rights make her nervous. She prefers economic citizenship. Every citizen has privilege for men and woman alike to achieve economic autonomy- right to work (right, does someone have to hire you) and train for an occupation of one choice, and combine with hcild rearing and other significant life commitments. From Alice Kessler (sp). Why not speak of economic rights? Is McCarthyism so deep and embedded that we can’t talk about economic (socialist) rights?

She is puzzled why we don’t call these rights economic rights. Why is the right to work an economic right but liberty of contract is not an economic right. Why does the worker get the right, but not the employer? Who is John Galt?

Question for Ben: To Ben, the constitution is an impediment. This depends on formalist view of the constitution, and not a law and society view of the constitution; the constitution of aspirations and the rights and hope of us all. What? What role does or could the constitution, or the “idea of the constitution” not to create judiciall enforceably rights but to inspire society to dream up a more democratic society. What? Why bother mentioning the constitution if you are more comfortable with the mere idea of it?

Rising inequality and insecurity in America today. Talking about healthcare again. Between TR and FDR, evolution of how to progress political inequality created by economic imbalance. TR- Private property should be servant, not master of the commonwealth. FDR- “for too many of us the political equality we once had was meaningless. a small group concentrated in their own hands, have complete control of others property, labor, lives.”

Question for Jack: What forces can galvanize citizenry to take back our democracy. What is common vision that appeals to all of us to come together for benefit of us all? How collectivist. Notions of political equality are hollow shells. Need to fill out those shelsl wiht something that means something to people in their everyday lives. In US, right to work and to earn are inevitable in America, to build for others. Clintonian notion- work should pay. Can this be expressed in a universalized means, not in a gendered fashion.

Not the Constitution, but Wagner Act had inspirational affect on movement. CIO had signs that said, the president wants you to join a union. To what extent can the Constitution play this role today? Best chance is appeal to economic equality. Is this in the Constitution? It is probably wrong to think about this too monolithically. Different groups of workers respond differently to different groups of claims. E.g., immigrant workers, and importance of citizenship to those organizing.

Republican senators are in “La La” land except for a couple senators from Maine. ROFLOL. LMAO.


Bruce Ackerman

The constitution is an entrechnmetn device. How hard is it for next generation to move it around? Compare Brown v. Board to Social Act. Brown is a failure. Parents involved, Supreme Court gave up on social aspect of Brown. FDR considered social security is entrenchment device. If FDR put it in, it will never go away. We need to design constitutional ideals and landmark statutes so they are hard to appeal. Bad entrenchment for healthcare would be disastrous. I love Ackerman’s unbridled cynicism, but unfailing genius to persuade. He wants these landmark statutes to become so entrenched they can never be removed. I would say the text of the Constitution is the ultimate entrenchment device. Article V is the total entrencher! But somehow, Ackerman thinks that the Social Security Act is entrenched, but the text of the Constitution isn’t. Does that make sense ?

Reva Siegel

Racial and social inequality were once entangled in the 1960s. Challenge now to recover distributive understandings of race.

The panelists also answered a question about langauge, and developing a framework and lexicon to “get on message.” I find that one of the geniuses of these scholars is to develop nice terms to describe concepts that I vehemently disagree with. Messaging so so important.


It’s worth noting that the four panelists are all progressives. I understand this conference is meant to explain the liberal view of the Constitution, but some balance would definitely have made this panel a little easier to swallow. Also, all of the questions from the floor were sympathetic. I’m inclined to ask a question here, but this is way out of my comfort zone, and I don’t feel I can contribute much here. To reiterate my point I made earlier this morning, the conference has a feeling of incestuousness, in that progressives are asking progressives questions, and there seems to be little dissent.

Vicki Schultz, Risa Goluboff, Jacob Hacker, Ben Sachs

Vicki Schultz, Risa Goluboff, Jacob Hacker, Ben Sachs