Michigan Law Review Volume 98 Issue 1 1999 Caste, Class, and Equal Citizenship William E. Forbath University of Texas at Austin Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Fourteenth Amendment Commons, Labor and Employment Law Commons, Law and Race Commons, Legal History Commons, and the Supreme Court of the United States Commons Recommended Citation William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1 (1999). Available at: https://repository.law.umich.edu/mlr/vol98/iss1/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. CASTE, CLASS, AND EQUAL CITIZENSlllP William E. Forbath* INTRODUCTION There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education;1 its roots lie in the Reconstruction era. Court­ centered and countermajoritarian, it takes aim at caste and racial subor­ dination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it cen­ tered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its ProgressiveEra proponents, I will call it the social citizenship tradition.2 My thesis is that the seemingly separate fates and flaws of these two egalitarian constitutional outlooks are joined. By retrieving the history of the social citizenship tradition and its buried links to the court- * Angus Wynne, Sr. Professor of Civil Jurisprudence, Professor of History, University of Texas at Austin. - Ed. This Articleis for Joel Handler and Kenneth Karst, fortheir friend­ ship and inspiration. Thanks also go to David Abraham, Bruce Ackerman, Alex Aleinikoff, Joyce Appleby, Craig Becker, Gyora Binder, Eileen Boris, David Brody, Josh Cohen, Nancy Cott, Micheal Kent Curtis, Ellen DuBois, Cindy Estlund, Eric Foner, Jack Getman, Robert Goldstein, Dirk Hartog, Sam Issacharoff, Linda Kerber, Sandy Levinson, Gillian Lester, Doug Laycock, Nelson Lichtenstein, Frank Michelman, Neil Netanel, Gunther Peck, Jim Pope, Robert Post, David Rabban, Jim Sidbury, Reva Siegel, Amy Stanley, Christopher Tomlins, Gerald Torres, and to participants at the American University, Washington College of Law Faculty Colloquium; University of Chicago Legal History Workshop; the NYU Legal History Colloquium; the Ohio State University College of Law Faculty Colloquium; the University of Pennsylvania Law School Faculty Workshop; the UT-Austin School of Law Faculty Colloquium; the UT-Austin History Department Brown Bag Lunch; and the Yale Law School Legal History Workshop. Nate Blakeslee, Leilah Danielson, Bill Niemi, Lee Thompson and Todd Vogel provided outstanding research assis­ tance. The Michigan Law Review provided outstanding editorial assistance. Finally, I am grateful to the many new colleagues and friendswho have niadeUT-Austin School of Law a wonderfully supportive and engaging place. 1. 347 U.S. 483 (1954). 2 See, e.g., FLORENCEKELLEY, SOMEETHICAL GAINS THROUGH LEGISLATION (1905). Today, we associate the term "social citizenship" most readily with the English sociologist T.H. Marshall and his classic lectures on the rise of the welfare state as a new "stage" in the development of citizenship. See T.H. MARSHALL, CmzENSHIPAND SOCIAL CLASS (1949). Thoughtful recent assessments of Marshall from a U.S. perspective include Nancy F. Cott, Marriage and Women's Citizenship in the United States, 1830-1934, 103 AM. HIST. REV. 1440, 1448-50 (1998); Nancy Fraser & Linda Gordon, Contract Versus Charity: Why ls There No Social Citizenship in the United States?, 22 SOCIALIST REV. 45 (1992). This Arti­ cle approaches Fraser and Gordon's question quite differently. 1 2 Michigan Law Review [Vol. 98:1 centered ideal of the Constitution as safeguard of "discrete and insular minorities," I hope to deepen and change our understanding of liberal constitutionalism and its discontents today. I begin with a present impasse in liberal constitutional theory and practice. Since the late 1960s and early '70s, leading liberal constitu­ tional law scholars have held that the Fourteenth Amendment embod­ ies an anticaste or equal citizenship principle, which requires more than mere legal equality. It allows and in many circumstances demands broad-gauged affirmative action for blacks and other minorities and it requires constitutional welfare rights for the very poor, again conceived as a racially stigmatized minority. The scholars have produced a pro­ gram of constitutionally compelled changes no constitutional court could enact, but they point out that the reach of constitutional norms like equal protection may extend well beyond the capacities of the courts. Still, these norms must bind the nation's lawmakers and citi­ zenry. The liberal theorists tum to history, and remind us that our un­ derstanding of the Constitution will always be partial if we attend only to case law; we must study with equal care what the Constitution has meant in democratic arenas. But, as we'll see, when they shifted their particular program of rights and remedies to the democratic arena, these theorists did not consider how deeply its substance was molded by the institutional ideal of the Court as the countermajoritarian guardian of "discrete and insular minorities." Today, in Congress and other are­ nas, broad-gauged affirmative action and nationally guaranteed welfare rights are being assailed and abandoned, and the liberal scholars seem increasingly ambivalent about defending them as constitutional impera­ tives. Even to their constitutional champions, affirmative action and welfare rights have come to seem partial, inadequate embodiments of the equal citizenship principle they are meant to secure. Yet the schol­ ars have no better view of what it requires. When one arrives at such an impasse, it is useful to reconsider one's point of departure. The starting point in this case was constitutional common sense: it was the outlook of Brown. The solution to racial sub­ ordination in the United States lies in extending equal citizenship to those excluded from it because of skin color. The road remains strewn with obstacles, but the direction is clear: it runs through our creed of equal rights. But consider a different starting point; instead of a solu­ tion, it points to another problem. America, according to this second perspective, will never overcome racial subordination until the nation confronts its deep class divisions; and it cannot redress its class divisions effectively without addressing its racial cleavages. Call this idea the historical knot of race and class. Historians and political analysts have understood much of our past in these terms, from the Revolution of 1776 to the revolt of the Reagan Democrats. Black slavery, in this view, not only financed the American Revolution; by keeping the propertyless laboring class in chains, it also enabled the co- October 1999] Caste, Class, and Equal Citizenship 3 lonial gentry to forge a revolutionary "equal rights" outlook and repub­ lican political culture among all ranks of white colonists, freed from the threat of social revolution.3 Thereafter, black subordination remained a potent element of American national identity, binding white Americans together as "equals" across the unacknowledged breaches of class. Of course, the Reconstruction amendments extended equal rights to blacks. This prompted Gunnar Myrdal, on the eve of Brown v. Board, to observe that "in principle, the Negro problem was solved long ago."4 It only remained to put the solution into practice. But if black subordi­ nation has been more than an aberration from the equal rights creed, if it also has proved part of the cultural and socioeconomic groundwork of that creed, then matters might be even more intractable than Myrdal anticipated. In that case, attaining equal citizenship for black America would require altering the meaning of that principle for white America. The equal rights creed could go only so far in undoing the subordination of black Americans, unless it also contends with the ways that severe class inequalities mock equal citizenship for all. Yet, contemporary lib­ eral "rights talk" addresses the injuries of caste for black and other nonwhite Americans but not the overlapping injuries of class many of them share with many whites. That may be so, colleagues in the liberal precincts of constitutional scholarship may respond, but class inequalities lie outside our jurisdic­ tion. True, the meaning of our constitutional tradition is forever de­ bated, but everyone seems to agree that redressing class inequalities has not been part of the debate. Insights about race and class have ap­ proached this terrain from without. They have informed important cri­ tiques of our constitutional norms and culture.5 But they have not guided interpretations, because all our stories tell us that the Constitu­ tion's promise of equal citizenship addresses racial and caste inequalities but leaves class inequalities alone. No widely shared reading of the Constitution