Jack Balkin sees OWS as a social movement that is “is clearly about the Constitution.”

October 19th, 2011

An interesting post from Jack.

My friend and colleague Reva Siegel, one of the nation’s foremost legal scholars of social movements, recently noted an interesting difference between Occupy Wall Street and the Tea Party. Almost from the movement’s inception, Tea Party advocates invoked the Constitution as supporting their political goals for limited government and lower taxes, even though their constitutional claims were, and are, odd from the perspective of contemporary constitutional doctrine. Rather, they sought to move certain constitutional claims from “off the wall” to “on the wall” through their protests. They sought to take back the Constitution by putting themselves on its side and arguing that, rightly interpreted, it supported their goals.

So far, at least, Occupy Wall Street protesters have not made claims about the Constitution central to their mobilization.

But there is no reason why they should not.

In fact, Occupy Wall Street is pretty easily characterized as a constitutional movement. seeking to take back the Constitution from “the malefactors of great wealth,” to borrow a phrase from a century ago.

OWS is a critique of the system of American democracy and how the engines and devices of American democracy have been perverted for the benefit of the 1 percent and to the disadvantage of the 99 percent.

This critique is clearly about the Constitution. And if we look at the text of the Constitution, we will see why that is so.

Then Jack does what he does best. Apply clauses of the Constitution to social ailments he identifies. He truly does this better than anyone else–here focusing on the Guarantee Clause.

Rather, a Republican Form of Government” is a representative government. It is a responsive government. It is a government, to use Abraham Lincoln’s famous words, “of the people, by the people, and for the people.” A republican form of government is a government that pays attention to the welfare of the vast majority of its citizens, or in the words of OWS, it is a government that cares about and is responsive to the 99 percent, rather than a government that is captured by the 1 percent and made to do that 1 percent’s bidding.

And there’s this:

The ideals (and the fears) of the framers are still relevant today; the wisdom of the Guarantee Clause still applies. If government no longer pays attention to the vast majority of its citizens; if the government has been hijacked by the most wealthy and powerful in the country to perpetuate and expand their wealth and power; if the agencies of government have been derailed from their constitutional obligation to “promote the General Welfare,” then we no longer live under a republican form of government, and the government we have is no longer consistent with the United States Constitution.

A broken government, unresponsive to the public, is more than a misfortune. It is a violation of our basic charter– our Constitution.

Jack being Jack.

Update: And Jason Mazzone smacks down Jack Balkin:

As somebody who has written extensively about the Guarantee Clause of Article IV, I was struck by Jack Balkin’s recent post on the Clause as providing a constitutional hook for the Occupy Wall Street protests. Jack calls for OWS to dust of Article IV and to invoke it as the clause that gives the protestors’ grievances about how government is failing a constitutional dimension. I agree that the Guarantee Clause should get more attention than it has until now. But there is a significant problem with respect to OWS making use of this Clause. The Guarantee Clause imposes an obligation on the federal government with respect to state government. It reads: “The United States shall guarantee to every State in this Union, a Republican Form of Government.” Jack invokes the Guarantee Clause to confront a “Senate . . . for sale.” But the Guarantee Clause does not say that the federal government must be a “Republican form of government.” (Perhaps there are other places in the Constitution one might find the basis for such a command.) Thus, to the extent the Guarantee Clause is a useful vehicle for a complaint about government, it is useful only to complain about the shortcomings of stategovernments (and secondarily the failure of the federal government to correct those shortcomings). Yet OWS, as Jack’s post itself suggests, seems focused primarily on failings of the federal governnment: the paralyzed Congress, federal tax rates perceived as unfair, corporate influence in Washington, and so on. Use of the Guarantee Clause, in OWS or elsewhere, however, requires an articulation of why the laws, including perhaps the constitutions, of state governments are not republican. Because the Guarantee Clause is limited to state government, it will be hard for OWS or any other social movement to gain constitutional traction via this Clause. (Is New York State responsible for concentrations of wealth that OWS complain about on Wall Street? Which other states are insufficiently Republican? All of them?) And while OWS agitates against the federal government, use of the Guarantee Clause requires dependence upon the federal government to rectify the perceived shortcomings in the states. A constitutional movement grounded in the Guarantee Clause is thus one that convinces the federal government to address problems within the states. I don’t see that to fit too well with how OWS views the federal government and what is presently seeks.