William E. Forbath

Caste, class, and equal citizenship

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. Courtcentered 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-

The New Deal Constitution in Exile

Judge Douglas Ginsburg’s evocative phrase “the Constitution-inExile” recalls the New Dealers’ battle against the classical liberal Constitution fashioned in the Lochner era. For Ginsburg, the Supreme Court’s embrace of the New Deal revolution cast the old Constitution into exile, its memory “kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty.” Until that day, Ginsburg and other restorationist scholars lament, the old Constitution’s fundamental commitments—to limited national government and due regard for states’ rights, to economic liberty and the rights of property—will remain forsaken. Constitutional culture will remain marred by a “double standard,” vigilance in the name of personal and political liberty forever mocking an indifference to economic liberty. National government will remain a swollen and intrusive bureaucratic enterprise that

Social rights, courts and constitutional democracy: Poverty and welfare rights in the United States

Social rights – to basic income, health care, education, decent work – are indispensable for constitutional democracy. Yet it is widely believed that social rights have no place in US experience. That is wrong. In the 1960s and 1970s, US courts collaborated with social movements and activist attorneys to pioneer judicial recognition and enforcement of social rights, and these developments quietly continue in several American state court systems. This study offers a brief history of the social, political, judicial, and intellectual adventures of the ‘welfare rights movement’ of the 1960s and 1970s, with an eye to current debates about the possibilities and limits of courts and constitutionalism as vehicles for promoting social rights. It engages with two programmatic alternatives: the basic income idea and the idea of employment-based social citizenship, and it offers some reflections about the practical and moral promises and pitfalls of each one.

Constitutional Change and the Politics of History

Everyone knows that historians and legal scholars do history differently. Laura Kalman, a contributor to this Symposium, has put it nicely. Historians favor context, change, and explanation; legal scholars value text, continuity and prescription. The historians role is to scold the law scholars for doing law-office history, for getting it wrong, ironing out context and discontinuity to muster the past into present service. This Symposium, however, is a conversation between historians and a lawyerdoing-history that does not follow this familiar script. The lawyer still aims for prescription, but like the historians, his focus is change. Indeed, Bruce Ackerman aims to prescribe new rules and standards to govern big changes in the Constitution, and he claims to do so via history, by examining how big changes actually have unfolded and by teasing out their immanent patterns, rules, and grammar.2 Ackerman also is a champion of context. We must, he repeatedly declares, learn to see the Founders as they saw themselves. 3 So, more than usual, the parties to this interdisciplinary conversation about the Founding, Reconstruction and New Deal eras in American constitutional history are writing on the same page. Not only are they life-long students of the periods Ackerman has dubbed constitutional moments, but several of the distinguished historians and students of American political development gathered here resemble Ackerman in another way. Their work is attuned to the ways that the available narratives about the constitutional past have shaped the

The Long Life of Liberal America: Law and State-Building in the U.S. And U.K.

This brief essay compares the law and politics, processes and outcomes of twentieth-century state-building in the U.S. and England. There were conspicuous differences between the New Deal state that was fashioned in 1930s and 40s America and the welfare state England created in those decades. More interestingly, the ideology and institutional contours of this new American state were deeply influenced by the ambivalent and lawyerly brand of American liberalism that animated figures like Charles Evan Hughes and Roscoe Pound - poised between progressive commitments to social reform, social provision, and administrative-state-building, on one hand, and older, classical liberal commitments to limited and decentralized, dual federalist government and the primacy of courts and common law and traditional legal and constitutional niceties, on the other. The architecture of what weve come to call the New Deal state and of Americas system of social provision was not the product of robust New Deal liberalism. If New Dealers had been able to design the state and American public social insurance according to their specifications, its institutions (and their justificatory language) would have looked dramatically different - and far more like Englands. We better understand the state that actually emerged in the U.S. as the product of a half-century of conflict and accommodation between the new liberalism of Progressive and New Deal reformers and the old or classical legal liberalism of the Lochner Constitution, and the jurists, lawyers, and politicians who hewed to it. The modern American welfare and regulatory state was not one that any single group intended or envisioned; but it bore the deep imprint of Lochners diverse defenders and the court- and common law-dominated institutional order they fought to preserve. Small wonder, the essay suggests, that members of the legal elite, such as Hughes and Pound, who combined vast energy, abilities, and ambition with a self-conscious and astute positioning of themselves as mediators between old and new liberalisms, left such durable legacies.

Law and the Shaping of the American Labor Movement

Preface Acknowledgments Introduction 1. Broad Contexts Recasting American Exceptionalism The State of Courts and Parties 2. Judicial Review in Labors Political Culture Samuel Gompers and in Jacobs Hours Laws in Illinois Hours Laws in Colorado Pressed toward a Minimalist Politics 3. Government by Injunction The Origins and Dimensions of Government by Injunction The Origins of Governmentby Injunction in Railway Strikes The Rise and Repression of City-Wide Boycotts 4. Semi-Outlawry The Usurpation of Local Polities Courts and the Uses of Police, Guards and Troops Labors Resort to Injunctions 5. The Language of the Law and the Remaking of Labors Rights Consciousness Labors Whole Gospel Is Liberty of Contract Labors Constitution A Great Popular Defiance Anti-Injunction Laws before Norris-LaGuardia The Norris-LaGuardia Act Conclusion Appendix A: Labor Legislation in the Courts, 1885-1930 Appendix B: Approximating the Numbers of Labor Injunctions and Their Relation to Other Strike Statistics, 1880-1930 Appendix C: Judicial Treatment of Statutes Seeking to Protect Union Organizing and Action by Revising Equity and Common Law Doctrine Index

The Presence of the Past: Voluntarism, Producerism, and the Fate of Economic Democracy: [Commentary]

An author can only be grateful for a review as generous as this one and for an opportunity to clarify and reflect on the work Professor Fisk has assessed so shrewdly. This response will do two things. First, I will address her chief criticisms. Then, I will follow her lead and venture some thoughts on the present and future politics of labor, in the light of my perspective on its past. Professor Fisk highlights the enduring strength of voluntarism; I mean to reflect on the more precarious persistence of more radical reform outlooks that have vied with voluntarism during the half-century my book explores and beyond. Like others, I have been struck by the ways that some important contemporary ideas about labor and economic reform evoke visions and strategies first mooted over a century ago. In a very brief, informal fashion, I will compare certain bold visions of economic and industrial democracy out of the past with some being championed today and contrast the possibilities and constraints confronting present-day reformers with those that confronted their forebears.

Would European Models of Government Make America More Democratic? A Skeptical View: [Commentary]

Constitutions deal with the highest of all political stakes. They are, as Sheldon Wolin once observed, about power, what it is to be used for, by whom, and according to what understandings and justifications. Given the stakes, constitutional theory and scholarship ought to be as broad and probing as possible, and Professor Griffin deserves applause for urging that the ambit of discussion should not be restricted-even among legal scholars-by a single-minded focus on the courts. In fact, a growing number of constitutional law scholars have embraced this view. But Professor Griffin suggests an avenue for broadening constitutional law scholarship that is fairly new to the law schools. Griffin urges us to consider constitutional reforms aimed at revamping the structure and operation of the American state. The view that the American state is an archaic one, hobbled by its 18th-century framework and ill suited to contemporary needs, has produced an important literature by political scientists and sociologists, and Griffin does an admirable job of introducing it to legal scholars, synthesizing the main insights into an intriguing narrative about American political development. Griffin insists that his provocative essay is not normative but simply