There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education;(1) its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social citizenship tradition.(2)
My thesis is that the seemingly separate fates and flaws of these two egalitarian constitutional outlooks are joined. By retrieving the history of the social citizenship tradition and its buried links to the court centered ideal of the Constitution as safeguard of "discrete and insular minorities," I hope to deepen and change our understanding of liberal constitutionalism and its discontents today.
I begin with a present impasse in liberal constitutional theory and practice. Since the late 1960s and early '70s, leading liberal constitutional law scholars have held that the Fourteenth Amendment embodies an anticaste or equal citizenship principle, which requires more than mere legal equality. It allows and in many circumstances demands broad-gauged affirmative action for blacks and other minorities and it requires constitutional welfare rights for the very poor, again conceived as a racially stigmatized minority. The scholars have produced a program of constitutionally compelled changes no constitutional court could enact, but they point out that the reach of constitutional norms like equal protection may extend well beyond the capacities of the courts. Still, these norms must bind the nation's lawmakers and citizenry. The liberal theorists turn to history, and remind us that our understanding of the Constitution will always be partial if we attend only to case law; we must study with equal care what the Constitution has meant in democratic arenas. But, as we'll see, when they shifted their particular program of rights and remedies to the democratic arena, these theorists did not consider how deeply its substance was molded by the institutional ideal of the Court as the countermajoritarian guardian of "discrete and insular minorities." Today, in Congress and other arenas, broad-gauged affirmative action and nationally guaranteed welfare rights are being assailed and abandoned, and the liberal scholars seem increasingly ambivalent about defending them as constitutional imperatives. Even to their constitutional champions, affirmative action and welfare rights have come to seem partial, inadequate embodiments of the equal citizenship principle they are meant to secure. Yet the scholars have no better view of what it requires.
When one arrives at such an impasse, it is useful to reconsider one's point of departure. The starting point in this case was constitutional common sense: it was the outlook of Brown. The solution to racial subordination in the United States lies in extending equal citizenship to those excluded from it because of skin color. The road remains strewn with obstacles, but the direction is clear: it runs through our creed of equal rights. But consider a different starting point; instead of a solution, it points to another problem. America, according to this second perspective, will never overcome racial subordination until the nation confronts its deep class divisions; and it cannot redress its class divisions effectively without addressing its racial cleavages.
Call this idea the historical knot of race and class. Historians and political analysts have understood much of our past in these terms, from the Revolution of 1776 to the revolt of the Reagan Democrats. Black slavery, in this view, not only financed the American Revolution; by keeping the propertyless laboring class in chains, it also enabled the colonial gentry to forge a revolutionary "equal rights" outlook and republican political culture among all ranks of white colonists, freed from the threat of social revolution.(3) Thereafter, black subordination remained a potent element of American national identity, binding white Americans together as "equals" across the unacknowledged breaches of class.
Of course, the Reconstruction amendments extended equal rights to blacks. This prompted Gunnar Myrdal, on the eve of Brown v. Board, to observe that "in principle, the Negro problem was solved long ago."(4) It only remained to put the solution into practice. But if black subordination has been more than an aberration from the equal rights creed, if it also has proved part of the cultural and socioeconomic groundwork of that creed, then matters might be even more intractable than Myrdal anticipated. In that case, attaining equal citizenship for black America would require altering the meaning of that principle for white America. The equal rights creed could go only so far in undoing the subordination of black Americans, unless it also contends with the ways that severe class inequalities mock equal citizenship for all. Yet, contemporary liberal "rights talk" addresses the injuries of caste for black and other nonwhite Americans but not the overlapping injuries of class many of them share with many whites.
That may be so, colleagues in the liberal precincts of constitutional scholarship may respond, but class inequalities lie outside our jurisdiction. True, the meaning of our constitutional tradition is forever debated, but everyone seems to agree that redressing class inequalities has not been part of the debate. Insights about race and class have approached this terrain from without. They have informed important critiques of our constitutional norms and culture.(5) But they have not guided interpretations, because all our stories tell us that the Constitution's promise of equal citizenship addresses racial and caste inequalities but leaves class inequalities alone. No widely shared reading of the Constitution has ever run to the contrary.
Here the liberal constitutionalists are mistaken. They overlook the social citizenship tradition and its distinguished career in the constitutional history they claim to describe. By applying their own new precept -- looking carefully at how the Constitution has been interpreted outside the courts in more democratic arenas -- Part II shows that ours is not the first era in which reform-minded constitutional thinkers have discerned a notable "gap between the reach of constitutional case law and the reach of the Constitution" in respect of "economic justice."(6) But when one actually examines what reformers thought the Constitution meant in respect of economic justice during the late nineteenth and early twentieth century, one finds a conception of the affirmative dimensions of equal citizenship very different from that of today's constitutional liberals.
The social citizenship tradition was neither uniform nor unchanging. Over time and across social groups, its exponents differed widely about how government ought to vouchsafe social and economic citizenship, and about who belonged to the community of full citizens. But all these reform-minded constitutional actors -- agrarian Populists, labor and trade union advocates, middle-class Progressives, as well as the professionals, politicians, and lawmakers who embraced and sought to harness these social movements -- agreed that the guarantee of equal citizenship entailed decent work, a measure of economic autonomy and democracy, and social provision for "all Americans."
We remember the restraints these generations of reformers demanded of the judiciary and forget the affirmative obligations their constitutional outlook laid on the other branches of government.(7) Constitutional law scholars and historians alike have assumed that late nineteenth- and early twentieth-century reformers shared Justice Holmes's view that the Fourteenth Amendment, rightly understood, enacted no "economic theory" -- as far as possible, constitutional discourse ought to be divorced from political economy,(8) In fact, as I will show in Part II, the great reform movements of those decades sought no such divorce. Rather, they sought to replace the Court with elected lawmakers in the role of the nation's "authoritative" constitutional political economist.(9) While Holmes held that the Constitution allowed broad reforms, the reform movements claimed that it required them, or that it ought to do so. The Lochner majority found an antiredistributive norm in the Constitution; the reformers identified a distributive one. From Reconstruction through the New Deal, they insisted that the political economy was shot through with constitutional infirmities that the nation was obliged to mend.
Until the 1930s, this was chiefly an oppositionist tradition. It had scored some important but limited victories in state legislatures, state judiciaries, and even Congress. But the official constitutional order condemned many of the rights and remedies that the reformers' Constitution demanded. With the New Deal, this protracted crisis came to a head. Part III shows how the social citizenship tradition provided FDR and the New Dealers with not only a rights rhetoric but a constitutional narrative, arguments, modes of interpretation, and conceptions of the allocation of interpretive authority that supported their "constitutional revolution." But then, of course, Part III must answer the question: If the constitutional principles of social citizenship prevailed, why have we forgotten them?
Answering this question requires joining forces, but also taking issue with, Bruce Ackerman's famous account of the New Deal "revolution."(10) Part III outlines a more complex and more deeply historical...