1 Gramsci, Antonio, Selections from the Prison Notebooks 377 (London, 1971). The task of examining our value system requires broad-and potentially fallible-generalizations. These will be found here.Google Scholar

2 N. Y. Times, 23 Dec. 1990, at A8.Google Scholar

3 We Americans keep finding ways to rediscover and rearticulate this fairness principle. The most recent major reinvention was Rawls's. In A Theory of Justice (1971), justice itself, as one critic pointed out, “was defined in good Kantian fashion not by substantive results but by proper process, independent of the outcomes.” Institutions are thus just when, in assigning basic rights, they make no arbitrary distinctions among persons. Rawls provided new “intellectual underpinnings for the fascination with process to the exclusion of results.” Fred Siegel, “Is Archie Bunker Fit to Rule?” 69 Telos 24–25 (1986). See also Sandel, Michael, “The Procedural Republic and the Unencumbered Self.” 12 Political Theory 87 (1984). For the classical Platonic and Aristotelian roots of these positions, see Shklar, Judith, “Giving Injustice Its Due,” 98 Yale L. J. 1135 (1989).Google Scholar

4 Sandel has stated this contrast between liberal and communitarian images of society forcefully:. Recalling the arguments of Hegel against Kant, the communitarian critics of modem liberalism question the claim for the priority of the right over the good, and the picture of the freely choosing individual it embodies. Following Aristotle, they argue that we cannot justify political arrangements without reference to common purposes and ends, and that we cannot conceive our personhood without reference to our role as citizens and as participants in a common life. Michael Sandel, ed., “Introduction,” Liberalism and Its Critics 5 (New York, 1984). Cf. Michael Walzer, “The Communitarian Critique of Liberalism,” 18 Political Theory 6 (1990). As one recent observer has put it, we have created “a self that exists only for itself, without regard to species, to justice, to equality, or to obligation.” Benjamin Barber, Strong Democracy: Participatory Politics for a New Age 71 (Berkeley, Cal., 1984).Google Scholar

5 There are many competing Lockes. Among the most lucidly and fairly presented is Alan Ryan's Property and Political Theory 14–48 (Oxford, 1984). On the issue of liberal neutrality and toleration in particular, see Herzog, Don, Happy Slaves: A Critique of Consent Theory 148–81 (Chicago, 1989). There are several significant issues in Locke (and other contractarians) that I will not address here, among them the patriarchal and gender-specific aspects. Some are addressed in Carole Pateman, The Sexual Contract (Stanford, Cal., 1988); Jean Bethke Elshtain, Public Man, Private Woman 108–27 (Princeton, N. J., 1981); Susan Moller Okin, Women in Western Political Thought 10–21 (Princeton, N. J., 1979). Property/labor, work/wages, social recognition/self-esteem, production/reproduction, independence/citizenship: these couplings were and remain central to our theories, and they are gendered.Google Scholar

6 For a keen discussion of the enduring impact of Madisonian/Malthusian “property” as a limit on majority power, see Nedelsky, Jennifer, Private Property and the Limits of American Constitutionalism (Chicago, 1990). Nedelsky argues, inter alia, that the mainline Madisonian product ignored Gouvemeur Morris's warnings from the “right” that democratic forms could be subverted and manipulated by a rich minority (at 67–95, 141–54) as well as James Wilson's urgings from the “left” that broader democratic political participation would build citizenship competence and lessen the effects of material, especially property, inequality (at 96–163). Locke and his contemporaries defined property as encompassing or subsuming life, liberty, and estate. Property is currently viewed as consisting of rights and interests, the former absolute, the latter relative, to possess, use, manage, dispose of, and exclude others from things, personal and real. Property, like political sovereignty, is a power compelling service and obedience. See Morris Cohen, “Property and Sovereignty,” 13 Cornell L. Q. 8 (1927). Rights may be defined as interests whose satisfaction is secured by the corresponding duties of other persons (or institutions), the fulfillment of said duties generally being guaranteed by state power. See Wesley Hohfeld, Fundamenal Legal Conceptions as Applied in Judicial Reasoning 23 (Cambridge, Mass., 1923).Google Scholar

7 See Drew McCoy, The Last of the Fathers: James Madison and the Republican Legacy (Cambridge, Mass., 1989).Google Scholar

8 This subsumption of estate as only one of the liberties is characteristic of Madison's 1793 essay, “On Property,” and runs counter to the larger interpretation offered by Nedelsky, supra note 6. James Madison, “On Property,” in Marvin Myers, ed., The Mind of the Founder: Sources of the Political Thought of James Madison (Hanover, N. H., 1981).Google Scholar

9 Federalist No. 10 is home to Madison's key statement that “the protection of different and unequal faculties of acquiring property” is “the first object of government.” In the event that America became like Europe, populated by large majorities of poor/propertyless white people, it would be necessary to have political rules that diluted, checked, filtered, dissolved, curbed, or otherwise blocked the formation and articulation of (potential) majority will. As Nedelsky shows, Madison did not get everything he wanted, and some of what he did get no longer survives. On the connection between property and labor, compare Richard Epstein, Takings: Private Property and the Power of Eminent Domain 11–12 (Cambridge, Mass., 1985), with Michael Kammen, “The Rights of Property and the Property in Rights,” in E. Paul & H. Dickman, eds., Liberty, Property and the Foundations of the American Constitution 11–13 (Albany, N. Y., 1989), and Lawrence Becker, Property Rights 32–56 (Boston, 1977). Kammen is particularly insistent on the “visionary” and capacious quality of Madison's understanding of property. Anything that I might say on the subject of “republicanism” is reported and better said in Dan Rodgers, “Republicanism: the Career of a Concept,” J. Am. Hist. 11 (June 1992), and Isaac Kramnick, Republicanism and Bourgeois Radicalism 163 (Ithaca, N. Y., 1990). For the nonspecialist, the key republicanism texts were J. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, N. J., 1975); Gordon Wood, Creation of the American Republic 1776–1787 (Chapel Hill, N. C., 1969); John Murrin, “The Great Inversion, or Court vs. Country: A Comparison of the Revolutionary Settlements in England (1688–1721) and America (1776–1816),” in J. Pocock, ed., Three British Revolutions: 1641, 1688, 1776 (Princeton, N. J., 1980).Google Scholar

10 Louis Hartz, The Liberal Tradition in America (New York. 1955). Hartz showed that even extremist thinkers such as the anticapitalist slavery apologist George Fitzhugh and the would-be socialist Edward Bellamy were at their core liberals, unable to escape what Gad Horowitz has called the “illusion of the ontological primacy of the individual.” The early Court interpretation of Madison's structure was Vanhome's Lessee v. Dorrance, 2 U. S. 304, 310 (1795).Google Scholar

11 On the relationship of this ideology to the propertyless and the enslaved, see Davis, David Brion, The Problem of Slavery in the Age of Revolution 1770–1823 at 257–62 (Ithaca, N. Y., 1975); D. Robinson, Slavery in the Structure of American Politics 55–77 (New York, 1971); Edmund Morgan, “Slavery and Freedom: The American Paradox,” 59 J. Am. Hist. 6 (1972). In the eyes of most white Americans, slaveholding and not, owning slaves facilitated one's ability to be a free man while being enslaved demonstrated unfitness for freedom. See Judith Shklar, American Citizenship: The Quest for Inclusion 16 (Cambridge, Mass., 1991) (“black chattel slavery stood at the opposite pole from full citizenship and so defined it”; voting and earning constituted inclusion).Google Scholar

12 Gordon Wood, “Inventing American Capitalism,” 41 N. Y. Rev. Bks. 44, 48 (9 June 1994) (review essay) (quoting approvingly Alan Kulikoff, The Agrarian Origins of American Capitalism (Charlottsville, Va., 1994), and arguing that alternative cultural and economic forms failed to survive much past the Revolution). A contrary argument, that property and rights-based liberal individualism came to America considerably later and from above, is found in Robert Wiebe, Self-Rule: A Cultural History of American Demonay (Chicago, 1995). Even if republican ideas, including those about property and liberty, were more deeply rooted and lasted longer than some of the scholarship claims, that ideology was hardly democratic; see Michelman, Frank, “Possession vs. Distribution in the Constitutional Idea of Property,” 72 Iowa L. Rev. 1319 (1987).Google Scholar

13 See, e. g., Talmon, Jacob, The Origins of Totalitarian Democracy (New York, 1960), and the more recent work on ideology, hatred, etc., by François Furet, Terrorisme et democratie (Paris, 1985); id., Interpreting the French Revolution (New York, 1981); Lynn Hunt, The Family Romance of the French Revolution, (Berkeley, Cal., 1992). Of course, as the history of American labor relations, for example, shows, matters could turn worse; see Forbath, William, Law and the Shaping of the American Labor Movement 10–36 (Cambridge, Mass., 1991); Christopher Tomlins, Law, Labor, and Ideology in the Early American Republic (New York, 1993).Google Scholar

14 On the liberty-property connection and the early American working class, see Ashworth, John, Agrarians and Aristocrats: Party Political Ideology in the United States (London, 1983) (stressing rise of meritocracy and equality of opportunity as avenues for social progress); Sean Wilentz, Chants Democratic: New York City and the Rise of the American Working Class (New York, 1984) (articulation of same ideology by New York artisans and laborers, including antiblack aspects); Leonard Richards, “Gentlemen of Property and Standing”: Anti-Abolition Mobs in Jackonian America (New York, 1970) (very propertylessness of blacks made them unfit to be freemen); R. Morais, “The Sons of Liberty in New York,”in Richard Morris, ed., The Era ofthe American Revolution 269–89 (New York, 1965).Google Scholar

15 Tony Freyer, Producers versus Capitalists: Constitutional Conflict in Antebellum America 11 (Charlottsville, Va., 1994).Google Scholar

On the doctrinal and social hostility toward corporate forms of property, see Kuttler, Stanley, Privilege and Creative Destruction: The Charles River Bridge Case (Philadelphia, 1971).Google Scholar

16 Freyer, supra note 15, at 10, 201; James Willard Hurst, Law and Markets in United States Histoy 97–98 (Madison, Wis., 1982). Freyer, at 8, claims that these “producer” values combined with Protestant moralism to generate a free-labor, antislavery ideology.Google Scholar

17 See Barrington Moore, Social Origins of Dictatorship and Democracy 484–508 (Boston, 1966) (Cato the Elder pioneered this discourse in the second century B. C.); Arno Mayer, Dynamics of Counterrevolution in Europe, 1870–1956 (New York, 1971).Google Scholar

18 See, e. g., Foner, Eric, Tom Paine and Revolutionary America (New York, 1976); Kramnick, supra note 9, at 132. The nature and extent of French radical influence is difficult to determine. Rousseau, for example, also contended that “[i]t is precisely because the force of things always tends to destroy equality, that the force of legislation must tend to maintain it.” J. J. Rousseau, Du Contrat Social et Les Discours 220 (Paris, 1957 ed.), cited in Stanley Katz, “The Strange Birth and Unlikely History of Constitutional Equality,” 75 J. Am. Hist. 747 (1988). This element of Rousseau apparently did not make much of an impression in the early Republic. W. Hugins, Jacksonian Democracy and the Working Class (Stanford, Cal., 1960).Google Scholar

19 For a thoroughgoingly logical statement of this classical position, see Friedman, Susan Looper, “‘Keep Your Laws Off My Body’: Abortion Regulation and the Takings Clause,” 29 New Eng. L. Rev. 253 (1995).Google Scholar

20 Such as the floor of Grand Central Station or “safe zones” under Interstate ramps in Miami. See Waldron, Jeremy, “Homelessness and the Issue of Freedom,” 39 U. C. L. A. L. Rev. 295 (1991).Google Scholar

21 U. S. Const., Amendment XIV, sec. 1 (1868), defines citizen and reads: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property ithout due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Several points were encapsulated in the first sentence. Blacks were to be considered citizens by virtue of birth here. States could not restrict either their own or national citizenship (one of the Dred Scott issues). And all persons born or naturalized are full citizens. Radical interpretations of the Fourteenth Amendment were turned back already in the Slaughter House Cases, 16 Wall. 36, 21 L. Ed. 394 (1873); the potential power of the “equal protection” clause was (re-)discovered almost a century later.Google Scholar

22 See Marx, Karl, Critique of Hegel's “Philosphy of Right” 131–42 (Cambridge, Mass., 1970); Neumann, Franz, “The Change in the Function of Law in Modern Society,” in H. Marcuse, ed., The Democratic and Authoritarian State 22–68 (Glencoe, III., 1957); id., “The Concept of Political Freedom,” 53 Colum. L. Rev. 901, 925 (1953). The most American statement of this conception was provided by Hale, Robert, “Coercion and Distribution in a Supposedly Non-coercive State,” 38 Pol. Sci. Q. 470, 472–77 (background distributions determine perception of what is coercive as against what is free or natural).Google Scholar

23 Thus, even introducing a putatively broader concept like “reliance” does not make background inequalities relevant; see Singer, Joseph, “The Reliance Interest in Property,” 40 Stan. L. Rev. 614 (1988). At the end of the day, the assortment of interests marshaled by the weaker party, bundled together as reliance, must withstand the same contract scrutiny as all other terms. Nothing speaks more loudly in Singer's article than the pictures of the Ohio steel mill being exploded.Google Scholar

24 The argument that liberty without equality is of minimal value and a great risk comes up during nearly every period of social upheaval: Graccus Babeuf during the French Revolution (“Manifesto of the Equals”); Boston seamen of 1779 (Lemish); the black gens de couleur in New Orleans whose credo in 1865 was “no liberté without egalité” (McPherson, infra note 33); the frustrated radicals of the New Deal; considerable forces within the Civil Rights movement; etc.Google Scholar

25 See, e. g., the vital essays by Michelman, Frank, “Foreword: On Protecting the Poor through the Fourteenth Amendment,” 83 Harv. L. Rev. 7 (1969); id., “Traces of Self Government,” 100 Harv. L. Rev. 1 (1986); Susan Bandes, “The Negative Constitution: A Critique,” 88 Mich. L. Rev. 2271 (1990).Google Scholar

26 Bruce Ackerman, We the People: Foundations 45–46, 98–106 (Cambridge, Mass., 1991).Google Scholar

27 In this regard, and others, the Civil War was (part of) a bourgeois revolution: see Moore, , supra note 17, at 111–58; Eugene Genovese, The World the Slaveholders Made (New York, 1969); Whyte Holt, “Recovery by the Worker Who Quits,” 1986 Wis. L. Rev. 677 (particular instance of attenuation of producers' affirmative duty to the public).Google Scholar

28 Isaiah Berlin, Four Essays on Liberty 121–31 (London, 1969) (“Two Concepts of Liberty,” negative and positive, from and to). The standard criticism of this dichotomy is that a person must be free from constraints in order to do an action; see MacCollum, Gerald, “Negative and Positive Freedom,” 76 Phil. Rev. 312 (1967). Arguably it is law that regulates the relationship.Google Scholar

29 See esp. William Novak, “‘Salus Populi’: The Roots of Regulation in America, 1787–1873” chap. 1 (Ph. D. diss., Brandeis University, 1992); id., “Common Regulation: Legal Origins of State Power in America,” 45 Hastings L. J. 1061 (1994) (arguing for a long and widely accepted tradition of government intervention in property, contract and other areas, at least at local levels); id., “Public Economy and the Well-ordered Market: Law and Regulation in 19th-Century America,” 18 Law & Soc. Inquiry 1 (1993).Google Scholar

30 As one slave-owning libertarian put it: “If Congress can make banks, roads, and canals under the Constitution, they can free any slave in the United States.” Nathaniel Macon of North Carolina, quoted in N. Risjord, The Old Republicans 242 (New York, 1965). On “liberalism” in the South, see Oakes, James, Slavery and Freedom (New York, 1990). When Justice Taney in Dred Scott insisted that the Missouri Compromise legislation could not have freed Dred Scott, he was simultaneously underscoring the property-contract-liberty connection of the slaveholder and denying the public power's (here, Congress's) authority to intervene in and disrupt that connection.Google Scholar

31 Novak, 18 Law & Soc. Inquiry at 3–5 (supra note 29), rightly insists that the persistent notion of an emerging apolitical economy in antebellum America provides a grossly inaccurate picture of that society. At the same time, however, an earlier mercantilist form of legal economic regulation did increasingly give way to the “freedom” of market-centered regulation; see, e. g., Sellers, Charles, The Market Revolution: Jacksonian America, 1815–46 (New York, 1991).Google Scholar

32 See, e. g., Mann, Michael, States, War and Capitalism 146–209 (Oxford, 1988); Anthony Giddens, The Nation-State and Violence (Berkeley, Cal., 1985); Theda Skocpol, States and Social Revolutions (Cambridge, Mass., 1979); id., Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass., 1992); Raymond Grew et al., Crises of Political Development in Europe and the United States (Princeton, N. J., 1977).Google Scholar

33 Speech of 18 April 1864, 7 Collected Works of Lincoln 301–2, cited in James McPherson, Abraham Lincoln and the Second American Revolution 43–44 (New York, 1991). Lincoln continued, “We behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty.”Id. See also Ira Berlin & Barbara Fields, Free at Last: A Documentary History of Slavery, Freedom, and the Civil War (New York, 1992).Google Scholar

34 Thus, for example, the black New Orleans Tribune slid from the social to the political this way: “Emancipation is one fact, and effective liberty is another. No pariahs in America! We demand, therefore, like all other citizens… the right to vote and the right to be judged, treated, and governed according to equal laws…. No power can arrest the élan summoned forth by this revolution.”La Tribune de la Nouvelle Orléans, 24 Jan. 1865, quoted in McPherson, supra note 33, at 17.Google Scholar

35 Two and three decades earlier, the Chartist movement had also proven unable to establish and effectuate a conceptual or practical connection between the political and the social. The challenge of connecting democracy to the social has remained with us. Despite much adulation and the recent contribution of the Chartist puzzle to the rise of discourse analysis, the failure remains an historical milestone/millstone. See Cole, G. D. H., Chartist Portraits (London, 1941); Dorothy Thompson, The Chartists (New York, 1984); and, especially, Gareth Steadman Jones, Languages of Class (Cambridge, Mass., 1983).Google Scholar

36 U. S. Const., art. I, sec. 4: “the United States shall guarantee to every State in this Union a Republican Form of Government.” The theory was that the white state governments of the South were “aristocracies” and “oligarchies,” hence subject to reconstruction.Google Scholar

37 Robert Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866–1876 at xiii, 1–3 (Dobbs Ferry, N. Y., 1985); id., “Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction,” 61 N. Y. U. L. Rev. 863 (1986).Google Scholar

38 Solicitor General Benjamin Bristow's brief in Blyew v. United States, quoted in Kaczorowski, Politics of Judicial Interpretation, supra note 37, at 139.Google Scholar

39 Id. at 131.Google Scholar

40 Quoted in McPherson, Abraham Lincoln, supra note 33, at 24.Google Scholar

41 National Anti-Slavery Standard, 18 May 1867, quoted in Id. Google Scholar

42 The propaganda of the French left in revolutionary/reactionary moments, such as 1848–49, involved upholding and even expanding the rights of property and family so cherished on the right. Thus, Ledru-Rollin speaking to peasants and small shopkeepers maintained: “Property is liberty… we will therefore respect property, but on condition that it will be infinitely multiplied… we do not want it for some; we want it for all.” Cited in Roger Price, The French Second Republic 202 (London, 1972).Google Scholar

43 Metaphorically speaking, the answer to this question may distinguish Reconstruction radicalism as so wonderfully articulated by McPherson from the New Deal and socialist radicalism reported by, for example, C. B. Macpherson in his oeuvre; see, e. g., Life and Times of Liberal Democracy (New York, 1977) and Rise and Fall of Economic Justice (New York, 1987).Google Scholar

44 In Marx's perception, at least, the Communards “wanted to make individual property a truth by transforming the means of production… into mere instruments of free and associated labor…. Communism, ‘impossible’ Communism.” Karl Marx, The Civil War in France 34 (1871 Address to the International Working Men's Association) (New York, 1968).Google Scholar

45 David Montgomery, Beyond Equality: Labor and the Radical Republicans 1862–1872 at x (Urbana, III., 1981); see Foner, Eric, Nothing but Freedom (Baton Rouge, La., 1983).Google Scholar

46 See Antonio Gramsci, The Modern Prince and Other Writings 28–51, and the implicit development debate in Rosario Romeo, Storia del Mezzogiorno (Rome, 1986), and Breve storia della grande industria in Italia, 1861–1961 (Bologna, 1980) (all discussing “the Southern Question”). See also Foner, Eric, Reconstruction 235–36 (New York, 1989) (potential impact of radicals' plans to redistribute rebels' plantation lands and create free black peasant-farmers).Google Scholar

47 See generally Foner, supra note 46. Certainly, it was in defense of rights grounded in private property, such as contracting rights, that the reading of the Fourteenth Amendment was narrowed so as to invalidate Reconstruction-era Civil Rights Laws. Similarly, raising the state action threshold constituted a defense of the primacy of private property rights. See the Slaughter House Cases, 16 Wall. 36, 21 L. Ed. 394 (1873), United States v. Cruikshank, 92 U. S. 542 (1875), Civil Rights Cases, 109 U. S. 3 (1883), and Plessy v. Ferguson, 163 U. S. 537 (1896).Google Scholar

48 W. E. B. DuBois, Black Reconstruction in America, 1860–1880 at 580–636, 670–710 (New York, 1935) (northern capital joined southern elite to liquidate progress of Reconstruction; regression back toward peonage and slavery followed). As DuBois shows, non-elite whites were also set back by the liquidation of Reconstruction–although the dream of property obviously stood a better chance of realization for whites.Google Scholar

49 Slaughter House Cases, 16 Wall. 36, 83. The Court did accept that the 1866 Civil Rights Act meant to afford all races equal contractual rights with whites: “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” In other words, the rights of the minority are tied to those of the dominant group. The case is thoroughly and persuasively analyzed in Kaczorowski, supra note 37, at 143–66. Compare the gloss on the case in Gerald Gunther, Constitutional Law 418 (Mineola, N. Y., 1985), where the concern expressed is that for negative liberty, freedom from the tentacles of the encroaching state. Hence, too, Gunther makes no mention of the fact that one immediate consequence of the decision was the Attorney General's suspension of prosecutions of Klansmen under the 1870 and 1871 enforcement acts.Google Scholar

50 Civil Rights Cases, 109 U. S. 3, 17 (1883) (“the wrongful act of an individual, unsupported by any [state] authority, is simply a private wrong”).Google Scholar

51 92 U. S. 542 (1875). Again, Gunther's presentation, at 864, is deceptive: Cruikshank“involved an indictment under [the 1870 Enforcement Act]. Three persons were convicted of participating in the lynching of two blacks.” No where does Gunther mention that the case stemmed from the most outrageous camage of the period, the “Colfax Massacre” of 1873, in which about 100 blacks and 3 whites were killed in a deliberate massacre. The Justice Department indicted nearly 100 men for conspiracy to deprive the victims of their civil rights. Compare Kaczorowski, supra note 37, at 202–20.Google Scholar

52 Made by John Campbell of Alabama, a former U. S. Supreme Court justice who resigned in 1861 to serve the Confederacy. His argument is quoted by Kaczorowski, supra note 37, at 210–11. Kaczorowski, at 220, also cites the remarks of one lawyer in 1878 to the effect that “fear of the advancing strides of an imperial despotism” was bringing the American people back to their senses.Google Scholar

53 See, e. g., Santa Clara County v. Southern Pac. R. R., 118 U. S. 394 (1886); Morton Horvitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977); Herbert Hovenkamp, Enterprise and American Law 1836–1937 at 42–56 (Cambridge, Mass., 1991). At the same time, the dedication of the courts to a free market helped introduce a prolonged period of judicial hostility toward labor organization. Beginning in the 1870s or 1880s. conspiracy prosecutions and injunctions barring picketing, organizing, boycotting, etc., became the distinctive government approach to labor strife. Forbath, supra note 13, at 59–97.Google Scholar

54 Macaulay to H. S. Randall (author of a two-volume life of Jefferson), 23 May 1857, in G. O. Trevelyan, 2 The Life and Letters of Lord Macaulay 407–10 (New York, 1875). Of course, Marx in both The Eighteenth Brumaire of Louis Bonaparte (New York, 1852) and Class Struggles in France 1848–50 (New York, 1850) also emphasized the long-term incompatibility of democracy and capitalism. Law's role in mediating this contradiction has recently been restated by Morton Horwitz, The Transformation of American Law, 1870–1960 at 9 (New York, 1992): “The fundamental issue of American political thought was how this politically most democratic country in the world could avoid the threat of coerced economic equality.”Google Scholar

55 C. Fairfield, Some Account of George William Wilshere Baron Bramwell of Hever and His Opinions 252 (London, 1898) (1885, context of quotation unclear). This was one of the lines of thought that culminated in Werner Sombart, Why Is There No Socialism in the United States? (London, 1905).Google Scholar

56 Daniel De Leon, “The Voice of Madison,” Nationalist 1 (Aug. 1889). On the dark side of Madison's pessimism, workhouses along with property, see McCoy, Drew, The Elusive Republic: Political Economy of Jeffersonian America 125–29 (Chapel Hill, N. C., 1980).Google Scholar

57 “Antitrust” was one of the leading areas of law demonstrating the uncertain struggles and unstable equilibria of the period(s). See Sklar, Martin, The Corporate Reconstruction of American Capitalism, 1890–1916 (Cambridge & New York, 1988) (producers big and small, consumers, labor, progressives, corporate liberals, and nostalgic yeomen all contributed to an evolving antitrust law).Google Scholar

58 For a broad argument addressing areas (such as women's rights) where the radicalism of antislavery never died out, see Hartog, Hendrik, “The Constitution of Aspiration and ‘The Rights that Belong to Us All,’” 74 J. Am. Hist. 1013 (1987). Alas, it must also be noted that the Fifteenth Amendment is the first place where the Constitution explicitly speaks of citizens as men only. See Ellen DuuBois, “Outgrowing the Compact of the Fathers,” 74 J. Am. Hist. 833, 845–48 (1987). On women and property in the public and private spheres of the day, Norma Basch, In the Eyes of the Law (Ithaca, N. Y., 1982).Google Scholar

59 198 U. S. 45 (1905). In Lochner, the U. S. Supreme Court struck down a New York law limiting bakers' weekly work hours KO 60. State courts did much the same. In 1886, for example, the Pennsylvania Supreme Court struck down legislation requiring that miners and iron workers be paid at least monthly and in legal tender rather than company-store scrip. The law was an effort “to do what, in this country cannot be done, that is prevent persons… from making their own contracts,”“to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen.” Godcharles v. Wigeman, 6 A. 354 (1886). Fear not, womanhood also merited freedom. Thus, Illinois's law of 1895 limiting the weekly labor of women in “factory or workshop” to 48 was a “restriction upon the fundamental rights of the citizen to control his or her own time and faculties.” Ritchie v. People, 40 N. E. 454, 155 III. 98 (1895). But see Holden v. Hardy, 169 U. S. 366 (1898) (upholding Utah law limiting smelters and ore-refining and underground workers to 8-hour day).Google Scholar

60 Edward Corwin, The Twilight of the Supreme Court 78 (Hamden, Conn., 1934). Corwin, of course, held this to be an illegitimate or arbitrary annexation or arrogation.Google Scholar

61 As in Coppage v. Kansas, 236 U. S. 1 (1915) (nullifying state's anti-yellow-dog law), Adair v. United States, 208 U. S. 161 (1908) (banning yellow-dog contracts on interstate railways), Adkins v. Children's Hospital, 261 U. S. 525 (1923) (overturning minimum wages for women in the District of Columbia), New State Ice Co. v. Liebmann, 285 U. S. 262 (1932) (barring state regulation of ice makers), Adams v. Tanner, 244 US. 590 (1917) (striking down law prohibiting employment agencies from collecting fees from workers), Weaver v. Palmer Bros., 270 U. S. 402 (1926) (invalidating state prohibition on use of shoddy or filthy rags in manufacture of mattresses and quilts).Google Scholar

62 Meyer v. Nebraska, 262 U. S. 390 (1923) (holding unconstitutional a state law banning the teaching of German, opinion by McReynolds, J.), and Pierce v. Society of Sisters, 268 U. S. 510 (1925) (striking an Oregon law requiring all students to attend public schools).Google Scholar

63 But see Sunstein, Cass, “Lochner's Legacy,” 87 Colum. L. Rev. 873 (1987), where Lochnerism is, unnecessarily I think, given a broader and more polyvalent definition. A shift in “baselines” becomes possible when the material reality underlying the rationales for prior baselines makes those older baselines untenable. In this regard, Sunstein's review of Ackerman's reverential, if not adulatory, view of the New Deal (Ackerman, supra note 25, at 100–127, 153–62) is at odds with his own view of Lochnerism as well as with his own antagonism toward the regulatory state, which was, after all, as much as anything what the New Deal was about. See Sunstein, “Constitutionalism after the New Deal,” 101 Harv. L. Rev. 421 (1987), and New Republic, 20 Jan. 1992, at 32; Kenneth Casebeer, “Teaching an Old Dog New Tricks: Coppage v. Kansas and At-Will Employment Revisited,” 6 Cardozo L. Rev. 765 (1985).Google Scholar

64 See, e. g., Casebeer, Kenneth, “Holder of the Pen: An Interview with Leon Keyserling on Drafting the Wagner Act,” 42 U. Miami L. Rev. 285 (1987) (discussion of the issues adverted to here); Forbath, supra note 13. Forbath stresses the democratic over the collective. No case makes the connection, I think necessary, better than J. I. Case Co. v. NLRB, 321 U. S. 332 (1944) (discussion of NLRA 9, only one voice on each side of collective bargaining).Google Scholar

65 These points are no longer considered controversial, merely historical, in the disparaging sense. For a sincere commitment, see Summers, Clyde, Wellington, H., & Hyde, A., Labor Law: Cases and Materials 896–936 (Mineola, N. Y., 1983).Google Scholar

66 Hugo Sinzheimer, quoted in O. Kahn-Freund, Labour Law and Politics in the Weimr Republic 81 (R. Lewis & J. Clark, eds., 1981).Google Scholar

67 Charles Fried, “Individual and Collective Rights in Work Relations,” 51 U. Chi. L. Rev. 1012, 1028 (1984).Google Scholar

68 As Karl Polanyi put it in 1944: To separate labor from other activities of life and to subject it to the laws of the market was to annihilate all organic forms of existence and to replace them by a different type of organization, an atomistic and individualistic one. Such a scheme of destruction was best served by the application of the principle of freedom of contract. In practice this meant that the noncontractual organizations of kinship, neighborhood, profession and creed were to be liquidated since they claimed the allegiance of the individual…. To represent this principle as one of noninterference… was merely the expression… in favor of a definite kind of interference, namely such as would destroy noncontractual relations between individuals and prevent their spontaneous reformation. Karl Polanyi, The Great Transformation 163 (Boston, 1957).Google Scholar

69 Thompson's excessive regard for the role of the law in mitigating class oppression and arbitrariness has become something of a chestnut-cited to prove, almost regardless of the time and place being discussed, that author and reader are in the right business after all. Whigs and Hunters: The Origins of the Black Act 258–66 (London, 1975).Google Scholar

70 The judicial rejection of collectivist corporatism was registered by invalidating the NIRA; see Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935), and Carter v. Carter Coal Co., 298 U. S. 238 (1936) (invalidating Bituminous Coal Conservation Act and industrial codes). The Court chose the commerce power as the pillar on which to lean in upholding the National Labor Relations (Wagner) Act in NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), and the Wages and Hours Act in United States v. Darby, 312 U. S. 100 (1941).Google Scholar

71 291 U. S. 502, 506 (1934). On the connection of Nebbia and related cases to the secular extension of the “police power” in industrial society, see Novak, 45 Hastings L. J., supra note 29 (arguing for a long and widely accepted tradition of government intervention in property, contract, and other areas). On the Court's pre-1934 rejection of such logic, see Forbath, supra note 13. On the recent return of the earlier logic, see Estlund, Cynthia, “Labor, Property and Sovereignty after Lechmere,” 46 Stan. L. Rev. 305 (1994).Google Scholar

72 300 U. S. 379, 398–400 (1937) (decided 5–4) (reversing Adkins v. Children's Hospital, 261 U. S. 525 (1923)). This was the case in which Justice Roberts's “switch in time saved the Nine.”Google Scholar

73 Derek Bok, “Reflections on the Distinctive Character of American Labor Law,” 84 Harv. L. Rev. 1394, 1402 (1971). Bok, “Section 7 of the Clayton Act and the Merging of Law and Economics,” 74 Harv. L. Rev. 226 (1960), contains a telling analysis of how antilabor, antitrust, and anticollectivism images of Jeffersonian yeomanry dominated the congressional debates of the 1940s and 1950s. For the ways in which analogous “functions” were/are accomplished in American labor relations, see Casebeer, Kenneth, “Unemployment Insurance: American Social Wage, Labor Organization and Legal Ideology,” 35 B. C. L. Rev. 259 (1994).Google Scholar

74 See, e. g., Brinkley, Alan, The End of Reform: New Deal Liberalism in Recession and War (New York, 1995) (arguing this thesis and FDR's movement from Dr. New Deal to Dr. Win-the-War; racial issues a possible exception).Google Scholar

75 Those historians who seek to underscore the continued possibility of substantial reform through the end of the Roosevelt years tend to stress, correctly, the availability of mass support for social initiatives. See, e. g., Lichtenstein, Nelson, “From Corporatism to Collective Bargaining: Organized Labor and the Eclipse of Social Democracy in the Post-War Era,”in Steven Fraser & Gary Gerstle, eds., The Rise and Fall of the New Deal Order 122–52 (Princeton, N. J., 1989); Steven Fraser, Labor Will Rule: Sidney Hillman and the Rise of American Labor (New York, 1991). See infra at 58.Google Scholar

76 The phrase is from Barrington Moore, Injustice 376–97 (White Plains, N. Y., 1978).Google Scholar

77 Brown v. Board of Education, 344 U. S. 1 (1954); Heart of Atlanta Motel v. United States, 379 U. S. 241 (1964); Katzenbach v. McClung, 379 U. S. 294 (1964); Fullilove v. Klutznick, 448 U. S. 448 (1980); United Steel Workers v. Weber, 443 U. S. 193 (1979); South Carolina v. Katzenbach, 383 U. S. 301 (1966), to name but a few. Arguably the most powerful of these cases–Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968); Sullivan v. Little Hunting Park, 396 U. S. 229 (1969); and Runyon v. McCrary, 427 U. S. 160 (1976)–were most directly tied to Reconstruction-era efforts. Likewise, the most significant subsequent retreats, as in the “state action area”–Jackson v. Metropolitan Edison, 419, U. S. 345 (1974); Flagg Brothers v. Brooks, 486 U. S. 149 (1978); Moose Lodge v. Irvis, 407 U. S. 163 (1972)–were repudiations of the same Reconstruction/New Deal advances.Google Scholar

78 Reich, “The New Property,” 73 Yale L. J. 733 (1964).Google Scholar

79 Id. at 768–74. It seems to me that a certain wrong-headedness runs through this article. One reason for it was Reich's conception of Flemming v. Nestor, 363 U. S. 603 (1960), as an attack on accrued property rights in the name of a new, “monstrous and oppressive”“‘public interest,’“mass democracy state feudalism. He should have seen Nestor for what it simply was: Court rationalization of the persecution of a Communist who had been deported in 1956 but who had the audacity to demand his social security money. In effect, Reich treats official McCarthyism as a phenomenon of mass democracy–a not uncommon perspective in the early 1960s, even on the Left.Google Scholar

80 This has never been a problem for conservatives, whose most familiar argument has been that production itself takes care of redistributive issues by increasing everyone's share of the pie without conflict over respective slice sizes. More subtle versions do exist, incorporating maxims such as limiting unearned income, guaranteeing the fruits of labor and savings, etc. See Riley, J., “Justice under Capitalism,”in J. Chapman & J. Pennock, eds., Markets and Justice: Nomos XXXI at 122–62 (New York, 1989). Riley in fact stresses that Madison himself in 1791 wrote favoring laws “which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity, and raise extreme indigence toward a state of comfort.”Google Scholar

81 As always, the data are rich and contradictory. If we take one indicator, percentage of the national wealth held by the top 1% of the population, an able but not exclusive stand in for the actual issue, we find the following: from 1776 to the Homestead Act (1862), the percentage doubled (from 14.6 to 29) in a straight linear fashion. The Homestead Act and the seizure of some southern Rebel lands led to a decline to 27% in 1870. From 1870 to 1929 (stock market crash), concentration again rose in a fairly linear fashion from 27 to 42.6%, Progressivism notwithstanding. By 1933 the crash and crisis of capitalism drove the figure down to 32.1%, but by 1938 it was back to 35.1%. For good reasons did the rich hate the New Deal: welfarist programs reduced the figure to 26.1% by 1943. Taft Hartley and Cold War measures brought the figure back to 30% by the early 1950s. It hovered at around 30% until 1973 but then tumbled very quickly and briefly during the 1973–75 stock deflation to 17.6%. By 1982 it was back up to 31% and has risen steadily since to over 36.5%, the highest concentration of wealth since 1929. Claudia Goldin et al., New York Times, 16 Aug. 1992, at E3. See Wolff, Edward & Marley, Marcia, “Long Term Trends in U. S. Wealth Inequality,”in R. Lipsey & H. Tice, eds., The Measurement of Saving, Investment and Wealth 765 (Chicago, 1991). To be sure, there have been definite countertendencies, the greatest and most important being a doubling of home ownership in this century. Still, it is a safe and accurate summary fact to state that the welfare state worked to decrease inequality and that the undermining of the welfare state has had the opposite effect. See Edward Wolff, Top Heavy: A Study of the Increasing Inequality of Wealth in America (New York, 1995); Bennett Harrison, Falling Wages and Growing Inequality in America (New York, 1987).Google Scholar

82 397 U. S. 254 (1970) (citing Reich, esp. in note 8); Hon. Cesar Persales, “The Legacy of Goldberg v. Kelly: A Twenty Year Perspective, 56 Brook. L. Rev. 889 (1991).Google Scholar

83 Respectively, Shapiro v. Thompson, 394 U. S. 618 (1969) (residency requirements violated freedom of travel, an inchoate property right in the taxpayer facilities of one's new community; welfare benefits could be eliminated altogether, but discrimination against new arrivals impermissible); Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974).Google Scholar

84 I. e., the regnant approach of Matthews v. Eldridge, 425 U. S. 319 (1976).Google Scholar

85 See, e. g., O'Connor, James, The Fiscal Crisis of the State (New York, 1973); Frances Fox Piven & James Cloward, Regulating the Poor (New York, 1971); id., The New Class War (New York, 1982).Google Scholar

86 397 U. S. 471 (1970). For the dangers of even a half-way recognition of the legitimate primacy of the market economy, see Michelman, , “Foreword,”supra note 25.Google Scholar

87 408 U. S. 564, 567 (1972).Google Scholar

88 See Perry v. Sindermann, 408 U. S. 593, 597 (1972): “this Court has made clear that… a person has no ‘right’ to a valuable government benefit and… the government may deny him the benefit for any number of reasons.” Under Chief Justice Rehnquist, new property has fizzled out: see Amett v. Kennedy, 416 U. S. 134 (1974) (property interest in tenured civil service position limited by procedural limitations accompanying grant of tenure); Paul v. Davis, 424 U. S. 693 (1976) (interest in one's good name is not a protectable property right). Interestingly, one of the critics of Nedelsky, supra note 6, chides her for “failure to consider the additional material prosperity introduced by a system of private property…. [P]rotection for private property is far easier to attack in a zero-sum society than in a world where private property creates incentives that encourage a better life for all.” T. Merrill, “Zero Sum Madison,” 90 Mich. L. Rev. 1392, 1393 (1992) (review of Nedelsky) (emphasis added).Google Scholar

89 See esp. Javins v. First National Realty Corp., 428 F.2d 1071 (D. C. Cir. 1970), and the other Skelly Wright cases. Unfortunately, of course, the right to move out without paying the rent when the apartment becomes uninhabitable does not put a roof over one's head. It may at best function to keep shoddy goods off the official market.Google Scholar

90 405 U. S. 56 (1972).Google Scholar

91 William H. Simon, “Rights and Redistribution in the Welfare System,” 38 Stan. L. Rev. 1431–32 (1986).Google Scholar

92 Id. Contrast this with the preconstituted social rights held nonconditionally as positive social rights as adumbrated by Joel Feinberg, Rights, Justice and the Bounds of Liberty 148–60 (Princeton, N. J., 1980).Google Scholar

93 Simon, supra note 91, at 1516. See also Handler, Joel, “‘Constructing the Political Spectacle’: The Interpretation of Entitlements, Legalization, and Obligations in Social Welfare History,” 56 Brook. L. Rev. 899 (1990).Google Scholar

94 Radin, Margaret Jane, “Lacking a Transformative Social Theory,” 45 Stan. L. Rev. 409 (1993) (reply to Stephen Schnably's universalist-transformative critique of Radin oeuvre in “Property and Pragmatism: A Critique of Radin's Theory of Property and Personhood,” 45 Stan. L. Rev. 347 (1993)). Radin's oeuvre over the past decade has been both large and influential: see esp. “Property and Personhood,” 34 Stan. L. Rev. 957, 986 (1982) (“The more closely connected with personhood, the stronger the entitlement” to prorection of the property interest); “Market Inalienability,” 100 Harv. L. Rev. 1849, 1915 (1987) (“we are situated in a nonideal world of ignorance, greed, and violence; of poverty, racism, and sexism. In spite of our ideals, justice under nonideal circumstances, pragmatic justice, consists in choosing the best alternative now available to us”); “The Pragmatist and the Feminist,” 63 S. Cal. L. Rev. 1699 (1990). Schnably, at nn. 13–15, documents Radin's influence. Courts and scholars alike have adopted the distinction between personal and fungible property in discussing homelessness, condominium conversion, and job losses through plant closings. The commodification/market inalienability distinction has been applied in discussions of surrogacy, prostitution, organ sales, celebrity, and housework. Still, Schnably's and Simon's critiques seem apt: To the extent that it does, this strategy “succeeds only by virtue of the homage it pays to the order it seeks to change.” Simon, supra note 91, at 1432 (emphasis added).Google Scholar

95 In the Continental tradition, “personhood” functions as a leading defense of private property and makes it unassailable. Thus Hegel: Since my will, as the will of a person, and so as a single will, becomes objective to me as property, property acquites the character of private property…. In property my will is the will of a person; but a person is a unit and so property becomes the personality of this unitary will. Since property is the means whereby I give my will an embodiment, property must also have the character of being “this” or “mine.” This is the important doctrine of the necessity of private property. G. F. W. Hegel, Philosophy of Right, 46 and Addition (T. Knox ed., London, 1967). In a singular Americanization of Hegel, Jeremy Waldron, The Right to Private Property 377 (Oxford, 1988), has argued that, since property ownership is essential to all for the development of human personality, government, contrary to Madison, must assure that all Americans get some. Thus, Waldron takes Hegel's potentially very conservative argument defending ownership and (as others have done with Hegel) radicalizes it.Google Scholar

96 Waldron, supra note 95. See also Baker, Edwin, “Property and Its Relation to Constitutionally Protected Liberty,” 134 U. Pa. L. Rev. 741 (1986) (disaggregating and differentially underpinning the use value, welfare, personhood, protection and allocation functions of property). Baker concludes that if “liberty” is to have more than formal meaning, then the welfare and personhood functions of property must be more fully developed, particularly so that access to and control over meaningful work can be guaranteed. Thus, the possibility of laboring indirectly becomes a prerequisite for its own theory of value.Google Scholar

97 411 U. S. 1 (1973). Formally at issue were massive interdistrict disparities in school funding and per-pupil expenditure resulting from Texas's reliance on local property taxes. The district court had invalidated the taxing and allocation schemes, which included a maximum permissible tax rate. Footnotes and citations are omitted here from all excerpts of the opinion.Google Scholar

98 To my knowledge, only the American Library Association has explicitly asserted that a free press inherently requires the right to literacy. A similar inference could be drawn from C. Edwin Baker, Human Liberty and Freedom of Speech, passim (1989). Cass Sunstein, “Beyond the Republican Revival,” 97 Yale L. J. 1539, 1578 (1988), also hints at this problem in the context of money, the press, and campaign financing. See also Fiss, Owen, “Free Speech and Social Structure,” 71 Iowa L. Rev. 1405, 1410, 1412 (1986). Michael Walzer has maintained: “When we recognize ‘the right of the citizens peacefully to assemble,’ for example, we are hoping for assemblies of citizens.” Walzer, “The Communitarian Critique of Liberalism,” 18 Pol. Theory 6, 19 (1990). It is not clear, however, that the right of free speech or of assembly creates speech or assembly. We may “hope” or take it for granted, but that is not enough. At a certain stage in his life, John Dewey saw why American society was undermining citizen competence; see The Public and Its Problems (Denver, Col., 1927).Google Scholar

99 T. H. Green, “Liberal Legislation and Freedom of Contract,”in 3 Works 371 (3d ed. London, 1891).Google Scholar

100 San Antonio Ind. School District v. Rodriguez, 411 U. S. 1, 111–12 (1973). Marshall was, it seems to me, by far the most European/social democratic of postwar Supreme Court Justices. Cf. Jonathan Weinberg, “Thurgood Marshall and the Administrative State,” 38 Wayne L. Rev. 115 (1991), and the “Symposium Honoring Justice Thurgood Marshall,” 80 Geo. L. J. 2003 (1992). For a comprehensive and perspicacious argument as to how and why it should be, see Bitensky, Susan, “Theoretical Foundations for a Right to Education under the U. S. Constitution,” 86 Nw. U. L. Rev. 550 (1992).Google Scholar

101 411 U. S. 1, 59. See Rawls, , supra note 3, at 5: Institutions are just when, in assigning basic rights, they make no arbitrary distinctions among persons. Thus too, the later companion case of Plyler v. Doe, 457 U. S. 202 (1982), is about voiding a discriminatory classification. Together the two cases underscore that inequality of property is a private issue while government withholding of benefits from an entire class of people is a public issue. The majority Justices in effect rejected the proposition cautiously offered by Michelman a scant four years earlier that a “limited assimilation of impecuniousness to membership in a racial, ethnic, or national minority is not lacking in plausibility.” Michelman, “Foreword,”supra note 25, at 20.Google Scholar

102 Hence, the only question that needed to be put to the Texas law in question was whether it served some legitimate, articulated state purpose, i. e., minimal scrutiny.Google Scholar

103 See Franz Neumann, The Rule of Law 179–285 (Dover, N. H., 1986); David Abraham, The Collapse of the Weimar Republic 1–41 (2d ed. New York, 1986). This feudal and socialist background is reflected in the duties which the German constitution connects to the ownership of property and the state's right to socialize landed and industrial property for the sake of the commonweal. Article 14(2) of the Grundgesetz states simply: “Property imposes duties. Its use should also serve the public weal.”Google Scholar

104 Weimar Verfassung des Deutschen Reichs, arts. 119, 143, 145, 161, 163 (enumerating rights to education, national insurance, and employment or unemployment compensation).Google Scholar

105 Donald Kommers, “German Constitutionalism: A Prolegomenon,” 40 Emory L. J. 837, 867 (1991) (emphasis added).Google Scholar

106 Id. at 859 & n. 63. To be sure, within this example, it is not entirely certain that free speech and free press rights through their corresponding values mandate the provision or guarantee of some measure of literacy. See Böchenförde, E. -W., State, Society, and Liberty 175–98 (New York, 1991).Google Scholar

107 David Currie, “Positive and Negative Constitutional Rights,” 53 U. Chi. L. Rev. 1 864, 883 (1986). See also id., “Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany,” 11 Sup. Ct. Rev. 333 (1993).Google Scholar

108 The two leading German cases are Party Tax Deduction Cases, 8 BVerGE (1958), and Party Finance Case, 20 BVerGE 56 (1966). In the not-unrelated area of television broad casting, the German high court has held that the state must “ensure” that the diversity of existing opinions finds its greatest possible breadth and completeness through broadcasting. The Third Televison [Network], 57 BVerGE 295 (1989). Cf. the American situation, Stephen Gardbaum, “Broadcasting, Democracy and the Market,” 82 Geo. L. J. 373 (1993). The leading American cases are Buckley v. Valeo, 424 U. S. 1 (1976) (limitations on independent political expenditures struck down as limiting free speech); First Nat'l Bank of Boston v. Bellotti, 435 U. S. 765 (1978) (same, in context of public referendum); Central Hudson Gas v. Public Service Commission, 447 U. S. 537 (1980) (regulated public utility may advertise to promote usage even as state encourages conservation). See also Miami Herald Publishing v. Tomillo, 418 U. S. 241 (1974) (states may not compel newspapers to offer a right of reply); Columbia Broadcasting System v. Democratic Nat'l Comm., 412 U. S. 94 (1973) (antiwar campaign advertising need not be accepted for airing); Lloyd Corp. v. Tanner, 407 U. S. 551 (1972) (as private entities, shopping centers may exclude leafletters and speakers)Google Scholar

109 Böchenförde, supa note 106, at 190–91.Google Scholar

110 Wolfgang Zeidler, “Grundrechre und Grundentscheidungen der Verfassung im Widerstreit” 53 Deutschen Juristentages 1980 at 4; Kommers, supra note 105, at 861. Even German law is double-edged, of course, and so it should be noted that this paramount “principle of human dignity,” particularly in the aftermath of Nazi eugenics, was cited in 1975 to strike down a liberalized abortion statute; 39 BVeffEG 1 (1975). See Perels, Joachim, Grundrechte als Fundament der Demokratie 11, 40 (Frankfurt, 1979)Google Scholar

111 See Berlin, supra note 28. Alan Ryan, Property and Political Theory (New York, 1984); id., Property (Milton Keynes, 1987); id., ed., The Idea of Freedom: Essays in Honor of Isaiah Berlin (New York, 1979), esp. the essay by Charles Taylor, “What's Wrong with Negative Liberty” at 175–93. America has simply not scaled the (Isaiah) Berlin Wall.Google Scholar

112 Kommers, supra note 105, at 861.Google Scholar

113 Id. at 862.Google Scholar

114 See, e. g., Glendon, Mary Ann, “Rights in Twentieth Century Constitutions,” 59 U. Chi. L. Rev. 519 (1992). Besides the vague German “social state” commitment, one finds in the welfare capitalist democracies of western Europe “programmatic” (not individually enforceable) constitutional statements like the Swedish: The personal, economic and cultural welfare of the individual shall be fundamental aims of the activities of the community. In particular, it shall be incumbent on the community to secure the right to work, to housing and to education and to promote social care and security as well as a favorable living environment. “The Basic Principles of the Constitution” in Swedish Instrument of Government, quoted in id., “Rights and Responsibilities Viewed from Afar,” 4 Responsive Community 33, 37 (1994).Google Scholar

115 Of course, American and German legal systems do belong to the same larger “European” legal culture. As Franz Wieacker has put it: The same tension between property rights and contractual autonomy on the one hand, and the social restrictions on private rights and their exercise on the other is apparent in the private law of modern economic societies. Today, the resulting antinomy between liberal and social Rechtsaat poses one of the fundamental constitutional problems…. But this tension only confirms the extent to which individual freedom and social duty (to use catchwords: individualism and socialism) are two sides of the same coin: a specifically Western personalism. “Foundations of European Legal Culture”, 38 Am. J. Comp. L. 1, 22–23 (1990).Google Scholar

116 The virtues and vices of the so-called Parteiensaat have been much debated. For introductions and summaries, see Richter, Michaela, “The Basic Law and the Democratic Party State: Constitutional Theory and Political Practice,” in Detlef Junker et al., eds., Cornerstone of Dmocracy: The West German Grundgesetz 1949–89 at 37 (New York, 1995). But see Claus Offe & Helmut Wiesenthal, “Two Logics of Collective Action: Theoretical Notes on Social Class and Organizational Form,” 1 Pol. Power & Soc. Theory 67 (1980) (asymmetry of politics and markets as respective arenas in which citizens and big business interests organize to achieve core demands).Google Scholar

117 See, e. g., Heyman, Steven, “Foundations of the Duty to Rescue,” 47 Vand. L. Rev. 674 (1994) (seeking to establish bases for rescue and other duties).Google Scholar

118 Italian Constitution arts. 4, 30, 48; Spanish Constitution arts. 2, 30, 35, 39, 45 (trans. in A. Blaustein & G. Flanz, eds., Constitutions of the Countries of the World 47–49 (New York, 1991))Google Scholar

119 Roe v. Wade, probably faute de mieux, represents the apotheosis of “choice.” Indeed, defense of the principle enunciated there has become the “pro-choice” movement. Of course, in real, material terms there is generally little “free” about the abortion choice. And Roe itself posits autonomous, isolated women, alone and unattached to family or community (except insofar as family and community might impinge on the autonomy and free choice of the woman involved). There are no values that might transcend the woman's present interests because her interest is presumed to be private, self-realization. On the (mis-)uses of “choice” to undervalue constraint in several areas of American law and policy, see Minow, Martha, “Choice and Constraints: For Justice Thurgood Marshall,” 80 Geo. L. J. 2093 (1992).Google Scholar

120 This social-democratic communitarian position goes at least as far back as Marx. [T]he so-called rights of man… are simply the rights… of egoistic man, of man separated from other men and from the community…. None of the supposed rights of man, therefore, go beyond egoistic man, man as he is as a member of civil society; that is an individual separated from the community, withdrawn into himself, wholly preoccupied with his private interest and acting in accordance with his private caprice…. [S]pecies-life itself-society-appears as a system which is external to the individul and as a limitation of his original independence. The only bond between men is natural necessity, need and private interest, the preservation of their property and their egoistic persons. “On the Jewish Question,”in Tom Bottomore, ed., Karl Marx: Early Writings 24–26 (New York, 1964)Google Scholar

121 BVerfGE 7, 15–16 (1954), cited in Kommers, supra note 105, at 873.Google Scholar

122 It is, however, beyond dispute that the framers of the 14th Amendment did intend to weaken state and local government to the advantage of the national state. This alone would cast some doubt on Justice Powell's assertion in San Antonio Ind. School District v. Rodriguez, 411 U. S. 1, at 54, that:. 160. if local taxation [were] an unconstitutional method of providing for education, then it might be an equally impermissible means [for]… police and fire protection, public health and hospitals, and public utilities…. We perceive no justification for such a severe denigration of local property taxation and control. On the more general question, see Keller, Morton, Affairs of State: Public Life in Late 19th Century America (Cambridge, Mass., 1977.Google Scholar

123 Rose, Carol, book review, 10 Const. Comm. 238, 244–45 (1993) (reviewing James Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights (New York, 1992)). See also Carol Rose, “Property as Wealth, Property as Propriety,” Nomos XXXIII (1991), at 223.Google Scholar

124 489 U. S. 189, 196, 195 (1989) (inaction by social worker led to death of child at the hands of known abusive father). Much the same point was made by Judge-scholar Posner in a case similar to DeShaney: [T]he Constitution is a charter of negative rather than positive liberties…. The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them…. [T]he difference between harming and failing to help is just the difference… between negative liberty-being let alone by the state-and positive liberty-being helped by the state. Jackson v. City of Joliet, 715 F.2d 1200, 1202, 1204 (7th Cir. 1983).Google Scholar

125 Rand Rosenblatt has astutely formulated how the Deshaney opinion undermines the grounding for even a minimalist conception of the welfare state:. [T]he social worker's inaction did not “cause” [the boy's] injuries, because it did not increase the risk of harm beyond what it would have been had the state never established a child protection agency at all. In other words, the state's “right” not to have any child protection agency at all must include the “lesser” right to have one that provides grossly inadequate protection. Further, 168. We are told that the Framers… clearly assigned the question of whether to recognize affirmative rights to the political process, and not to the courts. To question the distinction between negative and affirmative rights is to attack the authority of the “people of Wisconsin,” their actual views on the matter being irrelevant to the federal constitutional issue. Rosenblatt, “Social Duties and the Problem of Rights in the American Welfare State,”in D. Kairys, ed., The Politics of Law 90, 98–99 (New York, 1990).Google Scholar

126 To cite but three of many recent examples: In 1980 the Supreme Court upheld the Hyde Amendment barring federal funding of abortion through Medicaid on the grounds that “an indigent woman [is left] with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.” Harris v. McCrae, 448 U. S. 297, 317 (1980). Rosenblatt, supra note 125, further cites Lyng v. International Union, UAW, 108 S. Ct. 1184 (1988), in which Congress could withdraw food stamp eligibility from workers on strike because such action is not state coercion of workers applied to their right to strike, but only “declin[ing] to extend… assistance” in the name of state “neutrality” in social conflicts. Analogously, as Rosenblatt captures it, in Kadrmas v. Dickinson Public Schools, 108 S. Ct. 2481 (1988): “a school district's refusal to waive a bus transportation charge for a low-income child living sixteen miles from school is constitutional, because the Constitution does not require bus service to be offered at all, and hence imposes no obligation to offer it for free.” Only if there were suspect government discrimination against some (based on race, legitimacy, etc., but not wealth) would it be otherwise. Cases like these strain one's belief in what used to be called the relative autonomy of ideological structures. Obviously these measures are meant to make citizens forsake certain recognized rights.Google Scholar

127 Bandes, supra note 25, at 2309, argues as follows:. 173. the conventional wisdom about negative and affirmative rights presents itself as a neutral and inexorable, rather than as a particular way of thinking, shaped by particular influences, it is instead an amalgam of vestigial common law notions, individualistic political philosophy, originalist constitutional theory, and fear of the slippery slope…. [It] makes little attempt to understand the Constitution on its own terms. Although Bandes is obviously correct that it is in the language of these influences that the Court expresses itself, there is no reason to believe that the conventional wisdom fails “to understand the Constitution on its own terms.” The indeterminacy and political conditioning seems obvious.Google Scholar

128 Fiss, Owen, “Groups and the Equal Protection Clause,” 5 Phil. & Pub. Aff. 107, 128 (1976). For a more detailed discussion of this point, see David Abraham, “Individual Autonomy and Collective Empowerment in Labor Law: Union Membership Resignations and Strikebreaking in the New Economy,” 63 N. Y. U. L. Rev. 1268, 1283–90 (1988).Google Scholar

129 See Minow, supra note 119, at 2105–7. It was, of course, quite apt that free-market economist Milton Friedman's TV series was entitled Free to Choose (P. B. S. television broadcast, 11 Jan. 1987). More recently, “choice” has been a weapon in the war on the weak in the arena of the schools:. 177. Allowing parents to choose their children's schools may be the hottest idea in American education, but a new flood of research argues that such “choice” programs alone will not help schools…. choice primarily benefits children of better-educated parents, does not necessarily improve student performance, requires additional money and… may actually widen the gap between rich and poor school districts. N. Y. Times, 26 Oct. 1992, at A1. See Liebman, James, “Voice, Not Choice,” 101 Yale L. J. 259 (1991) (book review).Google Scholar

130 Rarely will the state acknowledge that it has had a hand in creating the natural social world it observes. The “public”/” private” distinction and the “state action” doctrine are among the least coherent precincts of American law. See, e. g., Tribe, Lawrence, Constitutional Choices 246–66 (Cambridge, Mass., 1985); id., “The Curvature of Constitutional Space,” 103 Harv. L. Rev. 1, 10 (1989).Google Scholar

131 Karl Marx, The German Ideology 77 (R. Pascal ed. New York, 1947).Google Scholar

132 William Brennan, Jr., “Are Citizens Justified in Being Suspicious of the Law and the Legal System?” 43 U. Miami L. Rev. 981, 986 (1989).Google Scholar

133 Bandes, supra note 25, at 2342. Even while attacking the Court's use of the public/private distinction, Bandes is compelled to grant that “the scope of governmental obligation is [not] without inherent limits.” Id. at 2343. Moses could get water from a rock; anyone operating without special help is better off trying a well. Cf. Seth Kreimer, “Allocational Sanctions: The Problem of Negative Rights in a Positive State,” 132 U. Pa. L. Rev. 1293 (1984), and Michelman's now classic “Foreword,” supra note 25.Google Scholar

134 Casebeer, Kenneth, “Running on Empty: Justice Brennan's Plea, the Empty State, the City of Richmond, and the Profession,” 43 U. Miami L. Rev. 989, 992 (1989). “Human dignity” is the value underlying German constitutionalism; see supra at 38.Google Scholar

135 Neumann, sources cited supra note 22; Nicos Poulantzas, State, Power, Socialism 76–93 (London, 1978); Hale, supra note 22. On the possible aggrandizement of the judicial role, see Michelman, , supra note 25.Google Scholar

136 Casebeer, supra note 134, at 992. See Krouse & McPherson, “Capitalism, ‘Property Owning Democracy,’ and the Welfare State,”in A. Gutmann, ed., Democracy and the Welfare State 79–105 (Princeton, N. J., 1988); Keane, John, Civil Society and the State (New York, 1988) (social democratic welfare-state politics).Google Scholar

137 See Frank Michelman, “Super Liberal: Romance, Community and Tradition in William J. Brennan's Constitutional Thought,” 77 Va. L. Rev. 1261 (1991).Google Scholar

138 San Antonio Ind. School District v. Rodriguez, 411 U. S. at 71 (emphasis added) (Marshall, J., dissenting).Google Scholar

139 Cass Sunstein, “On Marshall's Conception of Equality,” 44 Stan. L. Rev. 1267, 1270 (1992).Google Scholar

140 Id. See also Kennedy, Randall, “Doing What You Can with What You Have: The Greatness of Justice Marshall,” 80 Geo. L. J. 2081 (1992).Google Scholar

141 For a good example of how this works in antidiscrmination law, see Bumiller, Kristin, The Civil Rights Society: The Social Construction of Victims (Baltimore, 1988); Alan Freeman, “Anti-Discrimination Law: A Critical Review,”in Kairys, supra note 125, at 96, and Fiss, supra note 128.Google Scholar

142 Kimberlé Crenshaw, “Race, Reform, and Retrenchment,” 101 Harv. L. Rev. 1331, 1366, 1383 (1988).Google Scholar

143 See Morton Horwitz, “The Jurisprudence of Brown and the Dilemmas of Liberalism,” 14 Harv. C. R. -C. L. L. Rev. 599 (1979).Google Scholar

144 Benjamin Cardozo, The Paradoxes of Legal Science 82 (New York, 1928).Google Scholar

145 Id. at 118.Google Scholar

146 C. B. Macpherson, Property: Mainstream and Critical Positions 200 (Toronto, 1978).Google Scholar

147 See Becker, Lawrence, “Too Much Property,” 21 Philos. & Pub. Aff. 196, 198–99 (1992). As often as not, in particular cases these four principles will lead to conflicting judgments.Google Scholar

148 Ronald Dworkin, “Liberalism,”in A Matter of Principle 127 (Cambridge, Mass., 1986).Google Scholar

149 For some reasons why, see the classic work, Charles Lindblom, Politics and Markets 162–65 (New York, 1977).Google Scholar

150 Interestingly, Frank Michelman's classic “Foreword,”supra note 25, though it goes on to focus on the symptomatic deprivations endured by the poor and on the provision of their just wants and “inner circle” needs like mobility (at 42), opens with a recognition that “inferior command over resources and influence,” i. e., lack of access, is key to inequality (at 7).Google Scholar

151 Id. at 11, 13.Google Scholar

152 Id. at 13.Google Scholar

153 To note the obvious, within three years of Michelman's “Foreword,” Richard Nixon became president, and within four years the Supreme Court in San Antonio Ind. School District v. Rodriguez rejected Michelman's hopeful reasoning regarding school funding; “Foreword,” at 47–56. See Tushnet, Mark, “Political Aspects of the Changing Meaning of Equality in Constitutional Law,” 74 J. Am. Hist. 884 (1987); see generally id., Red, White, and Blue: A Critical Analysis of Constitutional Law 147–78, 313–18 (Cambridge, Mass., 1988).Google Scholar

154 Economic Justice for All 15, 36 (Washington, D. C., 1986).Google Scholar

155 On this complex of issues, see, e. g., Cohen, Joshua, “The Economic Basis of Deliberative Democracy,” 6 Soc. Phil. & Pol'y 25 (1989); Joshua Cohen & Joel Rogers, “Secondary Associations in Democratic Governance,” 20 Pol. & Soc. 393–472 (1992); id., “Solidarity, Democracy and Association,” in Wolfgang Streeck, ed., Staat und Verbände (Opladen, 1995); Joshua Cohen, “Procedure and Substance in Deliberative Democracy” (MS., 1995); Charles Beitz, Political Equality (Princeton, N. J., 1989). Put somewhat differently, Pierre Rosanvallon insists that “the task is to bring into being a civil society of greater density and to develop its scope for exchange and mutual support, instead of ‘externalizing’ these needs and abandoning their satisfaction to the twin poles of market or state.”“The Decline of Visibility,” in John Keane, ed., Civil Society and the State 204 (New York, 1988). Of course, it could be that unfettered democratic discourse is simply impossible because of the incommensurability of what the participants bring to the deliberative process. See, e. g., Steven Winter, “Indeterminacy and Incommensurability in Constitutional Law,” 78 Cal. L. Rev. 1441 (1990). Still, Pascal's wager has a lot to offer; Frank Michelman, “Law's Republic,” 97 Yale L. J. 1493 (1988).Google Scholar

156 For a persuasive presentation of why economic democracy is both necessary for political democracy and capable of being facilitated by concrete legal reforms, see Simon, William, “Social-Republican Property,” 38 U. C. L. A. L. Rev. 1335 (1991). In this view, both Meidnerian social buyouts of capitalism and FDR-like Second Bills of Right are highly desirable but not prerequisite to progress. Somewhat more sanguine than Simon is Sylvia Law, “Equality: The Power and Limits of the Law,” 95 Yale L. J. 1769 (1986). It is, of course, today difficult to find the optimism that marked Michelman's “Foreword,” supra note 25. Even that essay, however, with its commitment to using equality law to protect the victims of a highly inegalitarian capitalist society, opens with a nod to politics-the War on Poverty (at 7).Google Scholar

157 Although addressed to the somewhat more progressive Canadian context, this kind of argument is put forward by Jennifer Nedelsky, “Reconceiving Rights as Relationship,” 1 Rev. Const. Stud. 1 (1993) (addressing Canadian “Charter of Right and Freedoms” and advocating the Alternative Social Charter and the nonconstitutionalization of property rights, in its stead).Google Scholar

158 This is the argument of Jeremy Waldron, The Right to Private Property (New York, 1988), and it is persuasive-at least conceptually. Politically, however, it is difficult to maintain such a position without at the same time adhering to some version of a labor theory of value-a point made by Jeremy Paul, “Can Rights Move Left?” 88 Mich. L. Rev. 1622, 1654 (1990) (review essay). Without a concomitant political commitment, such conceptualization risks becoming mere “rights talk”; see infra at 58. 63–64.Google Scholar

159 Rose, “Property as Wealth,”supra note 123, at 245–46.Google Scholar

160 Id. Nollan v. California Coastal Comm'n, 458 U. S. 419 (1982).Google Scholar

161 See, e. g., Esping-Andersen, Gøsta, Politics against Markets (Princeton, N. J., 1985), Adam Przeworski, Capitalism and Social Democracy 7–46, 133–204 (Cambridge, 1985); Tim Tilton, The Political Theory of Swedish Social Democracy 70–144 (New York, 1991); John Stephens, The Transition from Capitalism to Socialism 89–175 (Urbana, Ill., 1986).Google Scholar

162 Of course these political and social rights join exisiting negative liberties (or protective rights) that safeguard individuals against the state and each other. See also Harris, Don, Justifying State Welfare (New York, 1987); Walzer and others in Amy Gutmann, ed., Democracy and the Welfare State 79–105 (Princeton, N. J., 1988). For how this development subsequently involuted, see Claus Offe, Contradictions of the Welfare State (London, 1984).Google Scholar

163 The classic explication of the nexus of “civil,”“political,” and “social” rights and the role of the welfare state is found in T. H. Marshall, “Citizenship and Social Class” (1949) in Sociology at the Crossroads 67–127 (Westport, Conn., 1963). Of course, not every motivation or political strategy involved in creating the welfare state stemmed from this source: Bismarck is the obvious example of raison d'état welfarism. See Wolin, Sheldon, “Democracy and the Welfare State: The Political and Theoretical Connections between Staatsräson and Wohlfahrtstaatsräson,” in The Presence of the Past: Essays on the State and the Constitution 151–79 (Baltimore, 1989).Google Scholar

164 Some scholars, most notably feminists, have challenged the linear “stage theory” aspects of Marshall's model. They argue that, from the perspective of the experiences of women (and, to a certain extent, African Americans), the dichotomies and stages do not hold: citizenship and political rights for (propertied) white men after 1776/1789, for example, in some ways set back the condition of women and nonwhites by introducing new frameworks from which the latter were excluded or against which they were negatively defined. The result is a modification, though not real abandonment, of the legal and political strategies implicit in Marshall and much of social democracy. See, e. g., Fraser, Nancy & Gordon, Linda, “Contract versus Charity, Participation and Provision: A Reconsideration of ‘Social Citizenship’“(MS., 1992); Carole Pateman, “The Patriarchal Welfare State,” in Gutmann, ed., supra note 136, at 231. For a European, needs-oriented view of this problematique, see Balbo, Laura, “Crazy Quilts: Rethinking the Welfare State Debate from a Woman's Point of View,” in Anne Showstack Sasson, ed., Women and the State: The Shifting Boundaries of Public and Private 305 (London, 1987). Cf. Margaret Sommers, “Rights, Relationality, and Membership: Rethinking the Making and Meaning of Citizenship,” 19 Law & Soc. Inquiry 63 (1994).Google Scholar

165 Marshall, supra note 163, at 73. The expansion of formal legal civil rights under conditions of status equality is what led certain liberal jurists to argue that the need for reform had come to an end and that tampering with the social would create neofeudalism. See Abraham, David, “Liberty and Property: Lord Bramwell and the Political Economy of Liberal Jurisprudence,” 38 Am. J. Legal Hist. 288, 300–308, 319–21 (1994).Google Scholar

166 This reading of Marshall is consistent with that of David Held, Political Theory and the Modern State 192 (Stanford, Cal., 1989). For a broad and impressive survey of the different paths by which and ways in which various forms of political democracy have come to be, see Therborn, Göran, “The Rule of Capital and the Rise of Democracy,” 103 New Left Rev. 3 (1977) (popular upheaval, rulingclass politics, external intervention have combined to produce extremely uneven development of different aspects of democracy). See also Anthony Giddens, Profiles and Critiques in Social Theory 171–73 (Berkeley, Cal., 1982).Google Scholar

167 Held, supra note 166, at 201 (criticizing both Marshall and Giddens for inadequate attention to nonclass movements and moments).Google Scholar

168 Marshall, supra note 163, at 74.Google Scholar

169 Mark Tushnet, “Civil Rights and Social Rights: The Future of the Reconstruction Amendments,” 25 Loy. L. A. L. Rev. 1207, 1212 (1992–93). Tushnet's evocation of “international human rights norms” (at 1213) is not particularly encouraging given not only their frailty but America's deep historical disinclination to join them.Google Scholar

170 Id. at 1215.Google Scholar

171 See the discussion supra at 32–38.Google Scholar

172 Although the Court has compromised on some “effects” commitments, such as “disparate impact” in civil rights cases, it has rejected measures that were intended to facilitate free speech where the effects of concentrated ownership were to restrict it; see Miami Herald v. Tornillo, 418 U. S. 241 (1974) (rejecting a state “right of reply”). Tushnet, supra note 169, at 1215, would transcend the contradiction posed in Fiss, supra note 98. As to “effectuation,” providing the means necessary for the effective exercise of a right, San Antonio Ind. School District v. Rodriguez stands for the rejection of a “effectuation” requirement as a litmus test.Google Scholar

173 This claim has been made repeatedly in our own history. It has most recently been propounded in the studies done by Robert Bellah, R. Madsen, W. Sullivan, A. Swidler, & S. Tipton, Habits of the Heart: Individualism and Commitment in American Life (Berkeley, Cal., 1985), and id., The Good Society (New York, 1991). Habits, at 28, quotes John Winthrop's counsel to Massachusetts Puritans: “We must delight in each other, make others' conditions our own, rejoyce together, mourn together, labor and suffer together, always having before our eyes our community as members of the same body.” Bellah neglects the “chosen people” aspect of Winthrop's message, one that could mandate both special obligations internally and disdain for others.Google Scholar

174 See, e. g., Stolzenberg, Nomi, “‘He Drew a Circle That Shut Me Out’: Assimilation, Indoctrination, and the Paradox of a Liberal Education,” 106 Harv. L. Rev. 581 (1993). For the argument that religion and belief are much more dangerous than “secular humanism” or the empty square, see Marshall, William, “The Other Side of Religion,” 44 Hastings L. J. 843 (1993).Google Scholar

175 See Bruce Ackerman, Social Justice in the Liberal State 16 (New Haven, Conn., 1980). This may be changing some among legal and political theorists: see, e. g., Galston, William, Liberal Purposes: Goods, Virtues and Diversity in the Liberal State 150–287 (Cambridge, Mass., 1991) (within the larger call to abandon moral neutralism in politics, religion is one needed source of values). See generally Herzog, Dan, Happy Slaves 151–55 (Chicago, 1990); Amy Gutmann & Dennis Thompson, “Moral Conflict and Political Consensus,” 101 Ethics 64 (1990); Will Kymlicka, “Liberal Individualism and Liberal Neutrality,” 99 Ethics 883 (1989).Google Scholar

176 Ulrich Preuss, “The Concept of Rights and the Welfare State,” in Gunther Teubner, ed., Dilemmas of Law in the Welfare State 151, 162 (New York, 1986) (inter alia, law's procedural norms merely steer and provide no substantive justifications). See also Offe, supra note 162; Michael Ignatieff, The Needs of Strangers (New York, 1986); David Abraham, “Labor's Way: The Successes and Limits of Socialist Politics in Germany,” 28 Int'l Lab. & Working Class Hist. 1, 20 (1985).Google Scholar

177 See Otto Kallscheuer, Glaubens Fragen: Über Karl Marx & Christus & andere Tote (1991) (examining rise and contribution of religious ideas to recent and contemporary European social, political, and economic debate); Jose Miranda, Marx and the Bible: A Critique of the Philosophy of Oppression 1–32 (New York, 1988).Google Scholar

178 R. J. Neuhaus, The Naked Public Square: Religion and Democracy in America 110 (2d ed. Grand Rapids, Mich., 1986); Michael Perry, Love and Power: The Role of Religion and Morality in American Politics (New York, 1991) (a more pressing call for the infusion of modernist religious values into public life). For a trenchant analysis of the issues raised by Perry, see Levinson, Sanford, “Religious Language and the Public Square,” 105 Harv. L. Rev. 2061 (1992) (review essay), and, relatedly, id., “Some Reflections on Multiculturalism: ‘Equal Concern and Respect’ and the Establishment Clause of the First Amendment” (MS., 1994).Google Scholar

179 The recent analysis and “thinness” metaphor are Barber's, supra note 4, at 72. Alexis de Tocqueville, 2 Democracy in America 292 (J. P. Mayer ed. Garden City, N. Y., 1969); see Arieli, Yehoshua, Individualism and Nationalism in American Ideology (Cambridge, Mass., 1964).Google Scholar

180 Already by the 1840s the religion-immigration mix was proving disastrous for American artisans and workers. As David Montgomery has chillingly noted, the choice of Bibles played a key role in worker-nativist riots in Philadelphia in 1844; “The Shuttle and Cross: Weavers and Artisans in the Kennsington Riots of 1844,” 5 J. Soc. Hist. 411 (1980).Google Scholar

181 On lacisation and solidarisme in France, especially in the Third Republic after 1870, see Hayward, Jack, “Solidarity: The Social History of an Idea in 19th Century France,” 4 Int'l Rev. Soc. Hist. 261 (1959); id., “The Official Social Philosophy of the French Third Republic,” 6 Int'l Rev. Soc. Hist. 19 (1961). Was there an American Durkheim-before or even among the Progressives?Google Scholar

182 See Lawrence Goodwyn, Democratic Promise: The Populist Movement in America (New York, 1976). One need not be as sanguine about Populism as Goodwyn to feel certain that Clarence Darrow and William Jennings Bryan were supposed to be on the same side: the opposition of Enlightenment and Democracy was arguably unnecessary and had tragic consequences. For that matter, creationism has virtues that evolutionism lacks. As Perry points out, supra note 178, at 69, Darrow described life as but “an awful joke,” and “like a ship on the sea, tossed by every wave and by every wind; a ship headed for no port and no harbor, with no rudder, no compass, no pilot; simply floating for a time, then lost in the waves.” This facile existentialism was popular with elite iconoclasts like Darrow (and Oliver Wendell Holmes) who could afford it and Progressivism at the same time. The absence of transcendent values–religious or otherwise–diminishes these figures considerably, I think.Google Scholar

183 Although the agreement of left, center, and right on this point may lead one to wonder whether the same questions are being asked. From James O'Connor, The Fiscal Crisis of the State (supra note 85), and Jürgen Habermas, Legitimation Crisis (Boston, 1971), through Michael Lind, The Next American Nation (New York, 1995), and Charles Sabel & Michael Piore, The Second Industrial Divide: Possibilities for Prosperity (New York, 1984), there has been a tendency to (over)value capitalist orthodoxy on key questions. Further, as Tweedy and Hunt, themselves semi-Foucauldian, have argued, most of the social control, surveillance, and demoralization stigmata of the welfare state are related to efforts to deny rather than to provide social rights and benefits, John Tweedy & Alan Hunt, “The Future of the Welfare State and Social Rights: Reflections on Habermas,” 21 J. Law & Soc'y 288, 308 (1994).Google Scholar

184 Tushnet, Mark, “The Constitution of the Bureaucratic State,” 86 W. Va. L. Rev. 1077, 1113–22 (1984) (on fostering the conditions for a responsible and effective social sector).Google Scholar

185 This “fix it” rather than “ditch it” argument, which rejects the flight back into civil society, is forcefully presented by a group of Canadian analysts: Bartholomew, Amy, “Democratic Citizenship, Social Rights and the ‘Reflexive Continuation’ of the Welfare State,” 42 Stud. Pol. Econ. 141, 143 (1993) (universalism, dialogism and participation all critical to noncorporatist welfare state); see Gregory Albo, David Langille, & Leo Panitch, eds., A Different Kind of State? Popular Power and Democratic Administration (New York, 1993). See also Handler, Joel, “Dependent People, the State, and the Modern/Post-Modern Search for the Dialogic Community,” 35 U. C. L. A. L. Rev. 999 (1987)Google Scholar

186 William Simon makes the case that at least one wing of Progressivism, and especially one of its New Deal descendants, engaged in a “social work jurisprudence” that was acutely aware that rights came with and through the state and that worked to establish the kind of welfare system that closely resembles what today's “renovators” are calling for. “The Invention and Reinvention of Welfare Rights,” 44 Md. L. Rev. 1, 17, 30 (1985). Such a welfare state system would necessarily ameliorate at least some of the conditions that make impossible citizens using their constitutional rights; see Tushnet, Mark, “Dia-Tribe,” 78 Mich. L. Rev. 694, 695–705 (1980).Google Scholar

187 See, e. g., Rosanvallon, Pierre, “Beyond the Welfare State,” 16 Pol. & Soc. 533 (1988) (arguing that “responsibility principle” and “insurance principle” can only be reconciled through social rights in a welfare state and that their crisis is, above all, political); Thomas Ferguson & Joel Rogers, Right Turn: The Decline of the Democrats and the Future of American Politics (New York, 1986); Thomas Ferguson, Golden Rule: An Investment Theory of Party Competition and the Logic of Money-driven Political Systems (Chicago, 1995) (control of political process by wealth captures “deliberative democracy”; capitalism and private property become deliberation); Abraham, supra note 128, at 1268, 1319–37 (documenting how political crisis within economy has transformed area of law).Google Scholar

188 For answers responding in the affirmative, see, e. g., Michelman, Frank, “In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice,” 121 U. Pa. L. Rev. 962 (1973); id., “Welfare Rights in a Constitutional Democracy,” 1979 Wash. U. L. Q. 659; Thomas Grey, “Property and Need: The Welfare State and Theories of Distributive Justice,” 28 Stan. L. Rev. 877, 885 (1976).Google Scholar

189 William Simon, “Social-Republican Property,” 38 U. C. L. A. L. Rev. 1335 (1991); see also Brest, Paul, “Further beyond the Republican Revival: Toward Radical Republicanism,” 97 Yale L. J. 1623 (1988) (advocating participatory equality in economy, workplace, and electoral processes). Simon, at 1336, sees social-republican property as part of “economic democracy,” as an alternative to classical, state-ownership-focused socialism, as something of a hybrid of market socialism and classical republicanism. As Robert Ellickson's oeuvre suggests, republican ownership, control, and self-management are much more easily accomplished by those who can claim most of the classical attributes of property ownership, which is in no wise a matter of economic democracy. Robert Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge, Mass., 1991).Google Scholar

190 Abraham, David, “Labor's Way: On the Successes and Limits of Socialist Politics in Interwar and Post-World War II Germany,” 28 Int'l Lab. & Working Class Hist. 1, 7–21 (1985), and the vast German literature discussed therein. “Economic democracy” evolved, especially in Germany, from being a stage on the road to socialism to being a substitute for it. In the interwar years, “economic democracy” emerged as a platform from the center of the socialist movement. Among the key texts were Fritz Naphtali, Wirtschaftsdemokratie: Ihr Wesen Weg und Ziel (Düsseldorf, 1925). For Americans, the most familiar political and legal activist was probably Franz Neumann. An overview of the contemporaneous debate is provided in Hans Willi Weinzen, Wirtschaftsdemokratie Heute? Konzept, Kritik, Konsequenz (Berlin, 1980). In the post-World War II years, similar proposals emerged from the “left” of the socialist and labor movements; see Volker Gransow & Michael Krätke, Viktor Agartz: Gewerkschaften und Wirtschaftspolitik (Berlin, 1978), and Viktor Agartz, Wirtschaft Lohn Gewerkschaft (Berlin, 1982). In the 1970s, “economic democracy” emerged once again, this time at the culmination of capitalist economic growth within the activist German welfare state; see Ulrich Borsdorf et al., eds., Gewerkschaftliche Politik: Reform aus Solidarität (Cologne, 1977); Heinz Vetter ed., Vom Sozialistengesetz zur Mitbestimmung (Cologne, 1975). Betriebsräte (works councils) and Mitbestimmung (limited employee co-determination on corporate executive boards) are the two substantial accomplishments that have emerged from these efforts in Germany. For a then-hopeful, now-sad American exploration, see Martin Carnoy & Derek Shearer, Economic Democracy: The Challenge of the 1980s [sic!] (White Plains, N. Y., 1980). The recent collection by Nelson Lichtenstein & Howell Harris, eds., Industrial Democracy in America: The Ambiguous Promise (New York, 1993), for the most part demonstrates the absence of its subject as a coherent political or economic project.Google Scholar

191 Frank Michelman, “Liberties, Fair Values, and Constitutional Method,” 59 U. Chi. L. Rev. 91, 96 (1992). Major shifts do occur; see id., “Possession vs. Distribution in the Constitutional Idea of Property,” 72 Iowa L. Rev. 1319 (1987).Google Scholar

192 Michelman, “Liberties…,”supra note 191, at 98, citing and quoting Baker, supra note 96, at 746.Google Scholar

193 Michelman, “Liberties…,” at 102.Google Scholar

194 Id. at 105; but see at 100–101 and the literature cited there.Google Scholar

195 William Forbath, “Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution,” 46 Stan. L. Rev. 1771, 1782 (1994) (reviewing Cass Sunstein, , The Partial Constitution (Cambridge, Mass., 1993) and criticizing Sunstein's excessive court-centeredness and failure to draw affirmative programmatic conclusions from his own astute analysis). Sunstein's philosophical–Madisonian?–refusal to address social class divisions constitutionally and his ultimate rejection of social rights is most clear in his work on and in central Europe, where a quasi-Tocquevilleian world of respectable property owners is imagined; see, e. g., Sunstein, “On Property and Constitutionalism,” 14 Cardozo L. Rev. 907 (1993).Google Scholar

196 Forbath, supra note 195, at 1785–86, identifies these three as Sunstein's and the liberal current's chief concerns. The first emerges from a narrow reading of FDR's 1944 Second Bill of Rights, the second from a reading of the Reconstruction Amendments as (mis-)interpreted by the majority in City of Richmond v. Croson, 488 U. S. 469 (1989), and the third from a Sunsteinian reading of San Antonio Ind. School District v. Rodriguez.Google Scholar

197 Forbath, supra note 195, at 1803. Much of what Forbath includes under the capacity for self-rule he rightfully cites to the work of Michelman, Brest, supra note 189, and Kenneth Karst, Belonging to America: Equal Citizenship and the Constitution (New Haven, Conn., 1989). (It is not clear if those older scholars quite share Forbarh's remarkable FDR ardor; Forbath at 1803).Google Scholar

198 George Orwell is said to have mused that the Loyalists in Spain not only had justice and history on their side but also by far the better songs, at least per Tom Lehrer, But We Had All the Good Songs (Reprise Records). In that instance–a pure war of position in the Gramscian sense–it seems to have been violence, almost alone, rather than ideology that proved determinative in both the first and last instances.Google Scholar

199 Forbath, supra note 195, at 1800.Google Scholar

200 Id. at 1804.Google Scholar

201 See Gramsci, supra note 1, at 161, 181, 187. Thus, it was not an accident or mere “coalition building” that Justice Brandeis, of whom nearly all progressives today are so rightfully fond, was appointed to the Court by the same Woodrow Wilson, southern progressive internationalist and university president, who appointed Justice McReynolds, racist, anti-Semite, reactionary and “bad guy” to progressives today. It is, perhaps, more important that ruling ideologies be capacious than that they be coherent in a rigorous intellectual sense.Google Scholar

202 Forbath, supra note 195, at 1805.Google Scholar

203 The distinction is formulated and questioned in Tushnet, supra note 169, at 1213–14.Google Scholar

204 See Leonard Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge, Mass., 1960); id., Emergence of a Free Press (New York, 1985).Google Scholar

205 Bond v. Floyd, 385 U. S. 116 (1966) (endorsement of SNCC and draft resistance not grounds for exclusion from state legislature); United States v. Spock, 416 F. 2d 165 (1st Cir. 1969) (“expressing one's views in broad areas is not foreclosed by knowledge of the [possibly illegal?] consequences”); Street v. New York, 394 U. S. 576 (1969) (insofar as a symbolic act, burning the flag a free speech activity). But see United States v. O'Brien, 391 U. S. 367 (1968) (burning a draft card crosses border between permissible symbolic speech and conduct, which may be regulated) (opinion by Warren). An earlier case notably extending free speech and assembly, Hague v. CIO, 307 U. S. 496 (1939) (streets and parks in trust for use of public), is better understood in the context of labor-organizing developments. David Kairys, “Freedom of Speech,” in Kairys, supra note 125, at 140–41, likewise identifies the 1930s and 1960s as periods that witnessed the enlargement of free speech rights as a secondary outcome of labor organization in the former case and civil rights struggles in the latter. Only in 1943, at the height of the anti-fascist coalition with the Soviet Union, did the Court adopt a positive view of dissenting speech itself. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) (“Compulsory unification of opinion achieves only the unanimity of the graveyard”).Google Scholar

206 Mark Tushnet, “Corporations and Free Speech,” in Kairys, supra note 125, at 258, citing Abrams v. United States, 250 U. S. 616 (1919) (Holmes, J., dissenting). See Ingber, Stanley, “The Marketplace of Ideas: A Legitimizing Myth,” 1984 Duke L. J. 1 (1984).Google Scholar

207 Tushnet, supra note 206, at 259–60, 257, citing Buckley v. Valeo, 424 U. S. 1 (1976) (limitations on independent political expenditures struck down as limiting free speech); First Nat'l Bank of Boston v. Bellotti, 435 U. S. 765 (1978) (same, in context of public referendum); Central Hudson Gas v. Public Service Comm'n, 447 U. S. 537 (1980) (regulated public utility may advertise to promote usage even as state encourages conservation). By way of contrast, the (West) German constitutional court has evolved a jurisprudence in the area of electoral law and party competition that is strongly egalitarian. As one specialist has noted, the Bundesverfassungsgericht “has tended to sustain legislation designed to bring about greater equality in electoral competition.” Kommers, supra note 105, at 837, 849 (citing Party Tax Deduction Cases, 8 BVerfGE 51 (1958); Party Finance Case, 20 BVerfGE 56 (1966).Google Scholar

208 New York Times v. Sullivan, 376 U. S. 254, 270 (1964).Google Scholar

209 Miami Herald Publishing v. Tornillo, 418 U. S. 241 (1974) (states may not compel newspapers to offer a right of reply); Columbia Broadcasting System v. Democratic Nat'l Comm., 412 U. S. 94 (1973) (antiwar campaign advertising need not be accepted for airing); Lloyd Corp. v. Tanner, 407 U. S. 551 (1972) (as private entities, shopping centers may exclude leafletters and speakers).Google Scholar

210 Fiss, supra note 98, at 1410, 1412; id., “Silence on the Street Corner,” 26 Suffolk U. L. Rev. 1 (1992) (examining broadcast and public space manifestations of same problem).Google Scholar

211 See Graber, Mark, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley, Cal., 1991), for a general demystification of the “worthy tradition” myth. See Chafee, Zechariah Jr., The Inquiring Mind 100–105 (1928); id., The Blessings of Liberty 112–34 (Westport, Conn., 1956).Google Scholar

212 According to the New York Times (10 Nov. 1992, at A19), Justice Scalia [said], “When I think back to the important decisions in my life, buying a house was one of the most important.” Justice Scalia said that for himself and for other home buyers getting information about the real estate market was “much more important than the war in Bosnia.” For the time being, at least, Scalia's argument trumps that of Cass Sunstein, The Partial Constitution (Cambridge, Mass., 1993) (political speech merits a higher level of protection than merely commercial speech).Google Scholar

213 See Frederick Schauer, “The First Amendment as Ideology,” 33 Wm. & Mary L. Rev. 853, 865 (1992). Schauer correctly identifies the self-serving hegemony of speech absolutists among legal scholars. In fact, only at the margins of respectability has exception been taken, see, e. g., Kendall, W., “The ‘Open Society’ and Its Fallacies,” 54 Am. Pol. Sci. Rev. 972 (1960) (since many people [unlike Mill] value things other than the truth, uninhibited speech may produce more intolerance); Herbert Marcuse, “Repressive Tolerance,” in R. Wolff, ed., A Critique of Pure Tolerance 81 (Boston, 1969). But see Ronald Collins & David Skover, “Commerce and Communication,” 71 Tex. L. Rev. 697 (1994) (commercial free speech valued because it promotes capitalism, not the res publica); Steven Winter, “Fast Food and False Friends in the Shopping Mall of Ideas,” 64 U. Colo. L. Rev. 965 (1993). Recently, policies like campus speech codes have received an overwhelmingly (though not universally: see some feminist and critical race scholar exceptions) chilly reception among law scholars. Even in Canada, however, not to mention Europe, cross burning and Skokie/Nazi-type cases turn out differently, and antiracist and anti-incitement speech restrictions have been upheld. In fact, there are several “in force” international human rights documents that require signatories to have the kinds of laws against racist speech that would themselves be illegal under current American constitutional law.Google Scholar

214 As indicated by the Brennan and Marshall dilemmas, even our bold critics and critiques are located within the ideology, or as Justice Brandeis once put it, “in order to preserve the liberty and the property of the great majority of the citizens of a State, rights of property and the liberty of the individual must be remolded, from time to time, to meet the changing needs of society.” Truax v. Corrigan, 257 U. S. 312, 376 (1921) (dissenting). Brandeis also spoke out for “industrial liberty” and “full employment,” though I think it unclear what this meant in 1915. See, e. g., Bernard Baruch and the development of war-time corporatism with progressive-fascist overtones. William Simon argues, persuasively, I think, that through critiques of this sort, Brandeis and other Progressive-era jurists, along with their New Deal descendants, were far ahead of the “radical” lawyers of the 1960s because they, unlike the later legal radicals “sought to replace, or at least revise the ideal of independence in a way that emphasized the social or communal dimension of the self and of legal entitlement.” Simon, supra note 186, at 13. For a recent, though admittedly somewhat peculiar example of this shoehorning, see the pained efforts to fit affirmative action efforts into the rubrics of noninterventionist equal opportunity: United Steelworkers of America v. Weber, 443 U. S. 193 (1979); Gertrude Ezorsky, Racism and Justice: The Case for Affimtive Action 73–94 (Ithaca, N. Y., 1991); Alan Goldman, “Limits to the Justification of Reverse Discrimination,” 3 Soc. Theory & Pracrice 289 (1975).Google Scholar

215 An extreme version of this position appears in Samuel Bowles & Herbert Gintis, Democracy and Capitalism: Property, Community, and the Contradictions of Modern Social Thought 152–53 (New York, 1986): Personal rights are simply part of a discourse…. In contemporary capitalism, the discourse of rights thus belongs to no specific class or group and corresponds to no integrated world view…. The content of a discourse is simply the constellation of uses to which it is regularly put…. [W]ords like tools may be borrowed. See also Radin, supra note 94; Ernesto Laclau & Chantal Mouffe, Hegemony and Socialist Strategy (London, 1985). More sophisticated and cautious is Alan Hunt, “Rights and Social Movements.” 17 J. L. & Soc'y 309, 315 (1990).Google Scholar

216 Thus, Eric Hobsbawm has said that wide-ranging rights claims “are not ends in themselves but broad aspirations which can be realized only through complex and changing social strategies, on which they throw no specific light.”“Labour and Human Rights,” in Workers: Worlds of Labor 310 (New York, 1984).Google Scholar

217 See David Abraham, “Are Rights the Right Thing? Individual Rights, Communitarian Purposes and America's Problems,” 25 Conn. L. Rev. 947 (1993) (review essay); Mark Tushnet, “An Essay on Rights,” 62 Tex. L. Rev. 1363 (1984); Charles Tilly, “Where Do Rights Come from?” CSSC Working Paper No. 98 (MS., 1990) (stressing macro-political origins and transformations); Cass Sunstein, “Rights and Their Critics,” 70 Notre Dame L. Rev. 727 (1995); id., After the Rights Revolution (Cambridge, Mass., 1990).Google Scholar

218 Forbath, supra note 195. See also for the 19th-century development of rights consciousness-albeit mostly individual-out of the antislavery struggle and with a powerful lesson for the present, Hartog, supra note 58.Google Scholar

219 Gramsci famously called for optimism of the will but pessimism in analysis.Google Scholar

220 “Crowns and Garlands,” in The Panther and the Lash 8 (New York, 1967). Of course, it was a momentous struggle in the United States to get Ralph Bunches, i. e., to overcome direct, legal race discrimination. In this key sense, Hughes's point is different from, as well as the same as, Marx's 1845 observation that “the right of the proletarians to eat has never been curtailed, nevertheless, it happens ‘of itself’ that they are very often unable to exercise it.” Marx, supra note 131, at 62.Google Scholar