Not So Simple Justice: Frank Michelman on Social Rights, 1969 - Present
William E. Forbath
University of Texas at Austin - School of Law
U of Texas Law, Public Law Research Paper No. 64
One day liberals and progressives again will wield power. Part of the liberal/progressive project is reinvigorating the old conviction that all Americans are entitled to a share in the nation's wealth, protection against desperate want and a realistic opportunity to make a decent livelihood. In the precincts of constitutional scholarship, we ought to think large and ask anew whether, why and how the Constitution and (a separate question) judicially enforced constitutional law should be interpreted to safeguard these commitments. Spanning almost four decades, Frank Michelman's writings include several of the most important approaches to poverty and material inequality in American constitutional thought.
This essay, written for a Symposium in honor of Michelman, engages that work, partly from the perspective of theory, partly from history. It situates Michelman's classic 1960s-70s articles on constitutional welfare rights in the context of the welfare rights movement and its distinctive historical possibilities and constraints. The movement broke the link forged in earlier languages of social and economic rights between decent livelihoods and decent work. That was its strength and its weakness, and both infused Michelman's conception of constitutional welfare rights as the material bases of equal citizenship. This contextual account sets the stage for a textual argument, a critical reading of Michelman's reading of Rawls's A Theory of Justice. Michelman, I argue, overlooked that Rawls is a critic of welfare-state liberalism in favor of a more ambitious constitutional political economy, which Rawls dubs property-owning democracy. From Rawls, Michelman turned in the 1980s to republicanism. But, I argue, the republican tradition in America supplies scant ground for the proposition that welfare rights provide the essential material bases for equal citizenship. Its distributive norms point instead to the distribution of material opportunities for self support and independence. Welfare rights are better seen as a critique of, or supplement to, this gendered and sometimes illiberal and coercive dimension of republicanism.
The thrust of these criticisms is that Michelman's normative and hermeneutic goals - getting it right and in the American grain - would have been better served by a broader and more participatory conception of social citizenship: entitling everyone not only to a decent livelihood but also to the opportunity to earn such a livelihood by contributing in some respected fashion to the social enterprise. In recent work, Michelman has signed on to this "Forbath-style conception of social citizenship," scrutinizing it along three intersecting dimensions of possible difficulty: judicial competence; constraints on democratic decision-making; and indeterminacy from the perspective of citizens entitled to ascertain whether government is complying with constitutional guarantees. Michelman concludes that the social citizenship guarantee should be non-justiciable. I demur, in part, and suggest instead two categories of social rights for a liberal/progressive Constitution.
Number of Pages in PDF File: 43Accepted Paper Series
Date posted: May 10, 2004
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