A Guide and Comment on Forbath’s "Social and Economic Rights in the American Grain"

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Joshua Braver

     While it is important to ponder our constitutional future, I often think that the story of our future is in large part the story of our past. Narratives legitimize our future plans.  Narratives allow people to see constitutional changes not just as “good,” but good for them, and not just as “right,” but in accordance with a collective, American sense of right. In his contribution to The Constitution in 2020 (“Social and Economic Rights in the American Grain,” chapter 6), William Forbath tackles this challenge directly, outlining a new narrative to reestablish positive social and economic rights. As future-oriented as his project may be, he’s heading toward the future through a sort of archaeology of the past, attempting to unearth a tradition of “American social citizenship” that has been largely buried beneath a dominant narrative of laissez-faire. From Forbath’s standpoint, this buried narrative “is at least as resonant today as its laissez-faire rival,” a narrative that underwrites equal distribution of opportunities and life chances, or, in his words, an equal distribution of “the initial endowments and security (like education and health and old-age insurance) necessary to take risks and fulfill personal responsibilities and citizenly duties.” 
    If Forbath is right – that there is more than one American constitutional tradition – then the true question we need to ask is whether Forbath’s narrative could successfully stimulate future progressive constitutional change.  In the movement for change - in the newspapers, on the internet, in interviews, in conventions, and on the congressional floor - will Forbath’s story resonate with the American people?  My answer is a qualified yes. But here the positive rights that Forbath envisions have to take on a uniquely American character.  And, by “American,”  I mean that these rights will have to pay heed to market principles, be compatible with economically smart policy, and avoid court-centered enforcement.

Positive vs. Negative Rights

    At the core of Forbath’s essay is the decades-old positive-negative liberty distinction. Forbath argues that, in the 21st century, social and economic rights must be positive rather than negative.  A positive right obliges the government to provide a good or service. A practical example of a positive right would be a constitutional right to housing, which would oblige the government to take the affirmative step of procuring housing for those who could not provide it for themselves.  Meanwhile, a negative right protects an individual against some form of interference by others. Perhaps the classic negative right is the right to property, which, in its strongest forms, bars the government and other citizens from interfering with an owner’s right to use his/her property as he or she sees fit. Forbath argues that in the past, negative rights were sufficient to provide equal opportunity.  Negative rights were social and economic rights.  However, now social and economic rights must expand to include both negative rights and positive rights. 

Positive Rights in the American Grain

    A. American Love of Markets and Negative Rights

    Forbath’s narrative can resonate with the American people.  But I believe that for positive rights to succeed at any large scale in America, they will have to be of an American character. Our picture of positive rights comes from across the Atlantic, where they have long been experimented with by European democracies.   At the risk of generalizing (but bear with me), Europeans have often viewed their rights as trumps, believing that a citizen may assert his or her right even if this assertion prevents the state from achieving important policy goals.  For example, in France, President Jacques Chirac attempted to give employers greater discretion to fire their employees in order to improve job mobility and, by extension, the greater French economy.  American employment markets are much freer than French markets and this was a tentative step in the American direction.  French students protested until the policy was retracted.  Western European country’s generous welfare, unemployment, and health insurance programs are also increasingly under attack as economists point out that Europe’s growth has been stymied by the high taxes that fund these programs. 
     While Americans may begin to yearn for positive rights, they are still attached to their negative rights, to their American freedoms. In the American context, positive rights must pay greater heed to free market principles.  For example, there is no serious proposal to establish a health care plan like Canada’s or Britain’s, in which the government is the sole administrator of health care.  Rather, proposals focus on subsidizing patients’ payments or creating a government system to compete with private providers.  While these proposals still depart considerably from strict laissez-faire, they still reflect a faith in the great organizing power of markets.  Indeed, many of Obama’s aides are disciples of the Chicago free market school, which seems to color their particular approaches to policy innovations.

     B. Rights as Good Policy

      Americans will fight for their rights because it is good policy, because it is necessary for a strong and vibrant American economy.  Americans will fight for health care because its high cost is eating up an increasing proportion of American GDP.  We will fight for quality schools because only an educated America can compete in the global information economy.  These points sound cliché because they are part and parcel of the American rhetoric behind the recent push for positive rights.  Where positive rights are more likely to slow the economy, Americans will hesitate and sometimes refuse to enact them.

    C. Rights in the Courts

    Whatever their specific content, American positive rights shouldn’t be created by the courts.  Forbath’s long-time intellectual sparring partner, Frank I. Michelman, has argued that court-centered constitutional rights should be narrow, “meaning that they don’t sweepingly preempt major public policy choices from the ordinary politics of democratic debate and decision.” The appeal of Michelman’s argument for narrowness is pretty obvious:  Broad social and economic rights might force courts to strike down legislation Congress deemed necessary to protect the economic health of the nation.
    Even Forbath will concede this point. In “Social and Economic Rights in the American Grain,” Forbath reminds us “many of our most important constitutional battles are fought outside the courts in movement building, public debate, and legislative and policymaking arenas.”  Unlike the courts, these other entities do not have to formulate detailed legal principles and guidelines. Nonetheless, key principles guide and temper their discussion.  Forbath’s hope is that positive social and economic rights will replace laissez-faire principles as a key driving force in public discourse.


     Whether Forbath’s hope is fulfilled depends on us, on whether we communicate, frame, and sell our progressive ideas as the next step in the advancement of American freedom.  In our discussions in law classes, in ACS committees, and with family, will we demand health care as an individual right with an attitude of entitlement?  Or will we show how health care and family leave enhance our freedom and lead to the realization of shared American policies and goals?  Should health care be paid for through higher taxes, or through greater savings  and efficiency?  Do we want a European single-payer plan or a restructuring of the market to promote better competition?  Paradoxically, a progressive future will only arrive if we can connect it to the American past.