Vol. 14 No. 7 (July 2004), pp.583-597
WELFARE AND THE CONSTITUTION, by Sotirios A. Barber. Princeton, New Jersey: Princeton University Press, 2004. 184pp. Cloth $27.95 / £17.95. ISBN: 0-691-11448-X
Reviewed By Ronald Kahn , Department of Politics, Oberlin College. Email: Ronald.Kahn@oberlin.edu
The major objective of WELFARE AND THE CONSTITUTION is to argue for a “welfarist” or positive vision of governmental obligation under the U.S. Constitution as articulated by Abraham Lincoln and the authors of the FEDERALIST PAPERS. James Madison’s belief that the “real welfare” of the people must be the “supreme object” of constitutional government is the bedrock principle animating this superb work. Sotirios Barber uses very precise and economical prose, and a wide range of scholarly literatures, Supreme Court cases, and historical evidence to argue against the negative rights constitutional vision, which he finds pervades the thinking of conservative and liberal scholars of constitutional law, history, and theory, as well as political and social theory. Most importantly for Barber, protecting the general welfare includes an obligation to provide the poor and uneducated with the wherewithal to develop themselves politically, socially, and economically. With this book Barber wants to begin a process through which constitutional and political theorists, as well as jurists and elected officials, can develop a substantive theory of constitutional ends and public policies in support of this goal. Such an account and theory of the Constitution forms the basis for Barber’s critique of Supreme Court decisions and public policy. It also is an attempt to influence the wider public as to why welfarism should be viewed as a basic value in the Constitution and in American constitutionalism, which for Barber are interlocking but separate sources of the positive obligations of government.
The core of the book is the question “whether government in America is constitutionally obligated to do what it reasonably can to secure a good life for all its people” and the idea that a necessary part of this securing of the good life is a “legal duty to help the poor” (p.xi). Barber opposes a plethora of scholarly and policy arguments against such an obligation, from both the Right and Left – if such appellations still have value. These arguments include: there is a moral imperative to help the poor because such help is a private, not public matter; the need to support individual liberties and redistributive government might deny such liberties; state provision for the poor exacerbates more problems than it solves; American civic culture respects personal privacy and the private market and relies on impersonal processes of courts, bureaucracies and politics to define entitlements and enforce rights, not the Constitution.
The range of Barber’s intellect is impressive. He thoughtfully considers and rejects political and moral theorists, constitutional scholars, social scientists, [*584] pragmatists, and rational choice theorists who support the “no-duty-to-benefit thesis – many of whom view the “general welfare” as “nothing more than an aggregate of the subjective preferences of individuals” and thus approve “whatever allocation of goods results from the self-interested calculations of individuals in either the free market or the open and unobstructed electoral processes of majoritarian democracy”(p. xiii). For Barber, “the general welfare remains a constitutional aspiration that must include the welfare of the poor and thus cannot be conceived solely in terms of market allocations or electoral outcomes” (p.xiv).
A chapter by chapter summary is the best way to describe this masterful and complex book. In a quite successful “Preface” Barber summarizes in a clear and detailed way the filigreed argument that he makes in the book. Chapter One, “Introduction: Every State A Welfare State,” summarizes the argument in each chapter and presents the outlines of the “Negative-Liberties Model of the Constitution.” Chapters Two through Four criticize historical, philosophic, and policy objectives to the substantive theory of the general welfare which Barber favors and presents fully in Chapter Five. Chapter Six, “Is the Constitution Adequate to Its Ends?, “ boldly explores the transformative policy implications of the welfarist Constitution, and asks whether the Constitution and contemporary theories of its interpretation are up the task of providing for policy change.
More specifically, Chapter Two, “Charter of Negative Liberties: Arguments from Text and History,” argues that “the Constitution is more a charter of positive benefits – a positive and welfarist constitution, if you will – than a charter of negative liberties and that a central question for constitutional theory in not whether state-facilitated welfare but what state-facilitated welfare and for whom” (p.2). Substantive benefits under the negative model would only be a matter for popular vote, not a matter of constitutional right. Barber argues instead for a benefits view that constitutionally requires the government to provide substantive benefits as its main purpose. In so doing, he demonstrates an insightful, and at times brilliant, control of the political thought behind the Constitution.
Barber cites Currie’s argument that a negatively phrased text can support a benefits model, particularly from Lockean values. However, while Currie views this interpretation as ahistorical, Barber does not. Barber writes that in a negative model, there is theoretically not even a constitutional duty to protect against murder – which obviously goes against a notion that Lockean ideals had any great influence on the Framers. Barber then considers Hobbs to demonstrate that even his negative-liberties argument requires some sort of a welfarist view of the government in order to be rational.
Barber distinguishes negative obligations in the Constitution and the positive duties and general welfare purpose as stated in the Constitution’s Preamble. He argues that these need to intersect, because without a benefits model the statement of duties and general welfare purpose in the Preamble do not make sense. The government is not created to “not do anything.” Nor is it created to refrain from exercising [*585] power. If government were more dangerous than private interests, then there would be no reason to create a government in the first place. The primary purpose of the government, then, is to have the “energy” to act.
Barber presents historical evidence that state-sponsored poor relief was present at least in some form even in the early history of the country, especially through the organized charity movement. A general understanding of a welfarist model for the government was also present at the Founding. Moreover, early arguments for free market practices were predicated on the need to maximize welfare. So, even though proponents of the need to protect the general welfare would not support extensive direct poor relief by government, they still argued in terms of what will best serve the overall welfare. This value and obligation is viewed by Barber as a continuing debate throughout our nation’s history.
Barber then examines the Framers themselves, specifically through an analysis of the FEDERALIST PAPERS. Publius was most concerned with the ends/purposes of government—i.e., the “substantive benefits that good governments can facilitate” (p.39). Institutions and governing polity principles, such as federalism and separation of powers are viewed as means to these ends. For example, limiting the power of Congress was meant to strengthen the presidency, therefore energizing the government to act for the general welfare. For Barber, checks and balances and federalism are in place not simply to protect against tyranny as negative rights theorists emphasize, but rather to ensure that government can provide for the public welfare.
Chapter 3, “Negative Constitutionalism and Unwanted Consequences,” assesses arguments opposing both the negative liberties and positive welfarist/benefits views of the Constitution. Barber begins by examining the slippery slope problem which many opponents of a right to welfare emphasize when they argue that there are no beginning and ending points or principled limits to such a right. However, he finds no such limits exist in the negative rights vision of the Constitution as well. Thus, he concludes that the slippery slope is “dangerous” to those who emphasize it as a problem primarily because it leads to results they oppose or do not want to admit to – not because these results are actually bad. To make this point, Barber uses the example of why some argue for police and legal protection of citizens from government and fellow citizens but refuse to protect citizens from poverty. He contends that there is no principled basis to make this distinction. The distinction is unreasonable because it assumes that the Founders created a Constitution only to limit government, which, for Barber, is nonsensical. The Constitution must both limit and empower the government: “The negative libertarian’s fear of the slope assumes the existence of the slope. But that very assumption favors the benefits model. For the slope is nothing other than the absence of a principled reason for the selective relief of insecurities. No principled reason for ameliorating some insecurities but not others is precisely what constitutes the slope” (p.44).
Barber then asks whether the “benefits” reading of the Constitution undermines negative liberties: [*586]
And if positive constitutionalists seek the general welfare itself, the virtue in question would be a kind of self-critical and permissive liberalism that emphasizes truth over convention and authority, and values some degree of pluralism, toleration, and personal experimentation. This in itself would offend communities based on sectarian, hierarchical, and nonrational commitments like race, religiosity, and sexuality. (p.59)
Barber concludes that negative liberties must be justified by constitutional ends that promote the general welfare, and notes that Publius argued that it does not make sense to limit the government when it is acting in an area needed for the public good. Also, the fear of government cannot be greater than fear of private power, or it does not make sense to have a government. Rights must be reconciled to the public good, and if they do not fit then they must be limited.
Moreover, Barber emphasizes that negative liberties are not things to be valued in and of themselves. For example, a limit on the government authority to promote free speech is not valuable; the value lies in speech itself. Therefore, in order to have effective free speech, the government needs to be empowered to protect against private interests that would take it away. Governmental power, then, is important for preserving what we find valuable. This premise leads to the controversial view that anti-liberal extremes should be limited so that the values themselves are not destroyed altogether. Thus, Barber questions the possibility of a neutral principles vision of the First Amendment and constitutional law.
In responding to critics, Barber questions whether a benefits model asks for too much. Can we ever really attain things like full health care or an end to poverty? But he notes, even negative liberties are never perfectly attained – the government strives toward an end. That is all it can do. And in any case, a right or benefit can be enjoyed only so far as the legislature/taxpayers choose to support it. He opposes enumerating benefits in the Constitution, though, because there is no reason to add to the Constitution what is already there. For Barber, because the end of government is the general welfare, its definition, and public policies in line with it, will be constantly changing as the social, economic, political, and cultural world changes.
Barber considers whether the welfarist model of the Constitution is anti-originalist and undemocratic with the cognate issue of whether we should fear placing too much power in the hands of unelected judges, a question to which he returns in the final chapter. For Barber, this argument is not one against benefits per se; it is against judges ruling on benefits:
Barber also denies that the benefits model is more antiliberal than the negative rights model. He asks whether a negative rights framework is more neutral among parties and therefore more liberal, recalling that liberty is a positive benefit, not a negative one. Therefore, negative views of the Constitution must eventually appeal to a welfarist argument—even negative models must serve the common good: “Government should be weak, it seems, only when it comes to ends that government should not pursue” (p.73). In any case, either view of the Constitution is not neutral because a liberal Constitution automatically favors values like tolerance and willingness to listen to others, while it excludes some beliefs automatically, such as putting racism into formal law.
In Chapters Two-Four, Barber is most successful in his general argument for a positive, benefits reading of the Constitution. He appeals specifically to the Framers, arguing that in the FEDERALIST PAPERS one can see “Publius” advancing the purpose of the Constitution and the government under it as “ends,” particularly, the general welfare of the people: “Publius’s main concern is the substantive ends or purposes of government--the substantive benefits that good government can facilitate. . . He thus treats institutions like federalism and the separation of powers as means to the ends of government, means an enlightened people would abandon should they fail to achieve their purposes” (p.39).
To the Framers, then, the pursuit of the general welfare was the overriding purpose of government, and the Constitution was meant to give government the “energy” to pursue this end. Logically, Barber notes that if the negative aspects of government were to overrule the positive ones, there would be no point in writing a Constitution and establishing a government at all. That is, if the government needed to be limited because it was so dangerous – that the government was more dangerous than private interactions – there would be no point in creating a government in the first place. Furthermore, Barber explains that even conservatives who advance a position for negative government must eventually appeal to some sense of the general welfare—i.e., they advance a [*588] positivist position in disguise.
Positive assumptions save the establishment of the Constitution as a rational act. Positive assumptions comport with the argument of The Federalist and therewith, arguably, “the framers.” Positive assumptions reflect the instrumentalist language of the Preamble and the presence in the constitutional text of granted powers as well as specified rights. We have seen also that negative constitutionalism sacrifices sense without corresponding gains for such goods as justice, democracy, and decency. Negative constitutionalism makes sense only in a context that exposes it as positive constitutionalism in drag: the rightist welfarism that ignores the redistributive character of political action generally and holds the rhetoric of negative constitutionalism more conductive to the general welfare than the rhetoric of positive constitutionalism...The Constitution charters a set of institutions for pursuing a set of benefits in a manner consistent with the principles of those institutions and a set of rights.” (Barber’s emphasis, p.92)
For Barber these statements, in light of his arguments about the political and constitutional theory behind a living Constitution, in the Founding and since, “can easily serve as a framework for the policy aims that Martha Nussbaum derives from Aristotle’s theory of the basic capabilities that constitute human well-being” (p.114). These policy aims include, but are not limited to “comprehensive health care” and “a humanistic form of education . . . that foster[s] the capacity of citizens to regulate . . . by their own practical reason and choice” their nutrition, housing, medical treatment, and sexual activity (p.114).
Because these policy objectives are “at least as basic, and perhaps more so than the basic scheme of offices and concrete judicial and deliberative institutions,” Barber argues, they “enjoy what we in the present discussion would call constitutional status. They or something like them—something flowing from a persuasive theory of human well-being—are constitutionally obligatory on officials who swear fidelity to the scheme of offices and powers” (p.115). Barber also draws on FEDERALIST 45, which reasons that no institutional scheme has any other value than as it may serve the people’s welfare. Thus, he concludes, “[t]here seems no reason why this should not exclude the welfare of the poor.” Moreover, “[i]f protecting the natural faculties of the little propertied in ways that make them ‘sanguine about their chances’ should require food, housing, health case, education of the young, and restraints on power of corporate wealth in the labor market, and if these things do not happen without government, then government is obligated to do what it can” (p.115).
Chapter Six asks “Is the Constitution Adequate to Its Ends?” The ethical argument that the Constitution obligates government to protect the general welfare (in Chapter Five) is buttressed with an analysis of Madison’s and Hamilton’s views on state versus national power as found in the FEDERALIST PAPERS. Moreover, Barber presents telling evidence that conservative supporters of states’ rights [*590] (on the Supreme Court, as well as other capacities) ultimately do not decide positions on public policy through the rigorous neutral application of polity principles such as federalism. Barber, unlike many scholars, is very clear about the policy implications of his theory—some of which may be applauded, and some not.
Barber finds that the Constitution, as it has been defined by many jurists and scholars, is not adequate to the task, because philosophical and historical arguments that the Constitution requires the definition and protection of the general welfare are turned into questions regarding support for such principles as federalism, separation of powers, access to government through the political process, and so on.
At the core of the chapter is a forceful and convincing argument that national and Congressional authority trumps state power, whenever Congress attempts to meet its commitments to protect the general welfare: “What makes Congress’s power the pivotal issue is the point to be emphasized before any discussion of the legal specifics: The general welfare is an end of government—it is a provision of power, not an exemption from power” (p.120). For Barber, this proposition “sees the Constitution as an expression of its aspirations,” and polity principles are secondary. Moreover, “general welfare as an aspiration” can be achieved only if “a welfare constitutionalist will value the secular reasonableness, institutionalized self-criticism, reasonable diversity, civil rights and liberties, equal opportunity, and economic promise of a liberal order” (p.122).
Constitutional rights and structures developed since the Founding further define the ends that the government is authorized to pursue. “The Civil War amendments and the Bill of Rights,” Barber observes, “combine to preclude the enactment into law of (overtly) racist and religious views of the general welfare. . . Rights consistent with these provisions are consistent with the state’s pursuing a bourgeois view” (p.122). These include psychological and intellectual capacity for effective choice among ways of life to ensure material comfort, bodily health, and societal progress conceived in terms of relieving toil and earthly insecurities (p.122). “These rights,” however, “also have a place for nonviolent forms of anti-liberalism and nonliberalism—religious, ideological, artistic and philosophic” (p.122).
Barber argues that the Constitution may not be adequate because it is a rule-constituted instrument that depends upon historical context; if context changes dramatically, the Constitution might fall short. However, he rejects the states’ rights argument for the potential failures of the Constitution. Addressing the general welfare of the people must always take precedence over states’ rights. In addition, he demonstrates many conservatives who assert states’ rights principles are not principled in their application, and deny such principles when they disagree with a state’s direction or seek national government action to block states from making their own choices. Even the most conservative states’ rightists will appeal to the general welfare if they feel the issue warrants it.
Having made a strong argument against [*591] states’ rights, Barber writes, “Our question is whether the Constitution grants Congress the power to promote the general welfare conceived by bourgeois liberalism—to promote, that is, the capacity of each competent person to choose among and participate in either the laudable or the nonviolent pursuits of a liberal order” (p.123).
He finds the answer in the view that Congress has the Constitutional authority to do what it must for the general welfare. The basis for this argument, beyond the moral, political theory, and philosophic arguments presented in prior chapters, can be found in the Constitution—in particular, in the Preamble which expressly promises to promote the general welfare; in Article I, Section 8 on congressional powers, including the power to tax and spend for the general welfare, and the enforcement provisions of the Civil War Amendments.
However, whether Congress can lawfully do whatever it takes to promote the general welfare cannot be determined by application of polity principles, such as federalism and separation of powers: “No rule constituted entity can be fully and finally adequate to the general welfare itself. And since the Constitution establishes a rule-constituted entity, the Constitution’s adequacy can be no more than relative and provisional. . . The Constitution succeeds or fails to the extent the government it establishes can lead the public toward a general approximation of the people’s well-being” (p.124).
Drawing on Martha Nussbaum, THE FEDERALIST PAPERS, and Lincoln, Barber writes,
I have assumed here arguendo that the general welfare is the welfare of every responsible person, and . . . that persons do not fare well merely because they possess property or actually enjoy certain relationships; they fare well if they exercise the psychological and intellectual faculties or capacities to acquire or enjoy what they reasonably want by way of property, relationships, vocations, and avocations. These faculties and capacities are developed in our culture by educational institutions like the family and the public schools or state-licensed and state-facilitated private schools. (pp.124-125)
Although some argue that educating the young is reserved to the states, Barber finds that this argument against national government action cannot prevail: “Mere disagreement over the Constitution’s adequacy cannot establish the Constitution’s inadequacy because a political aspiration like the people’s welfare presupposes a public debate about its content and rational pursuit” (p.125). Moreover, Barber continues,
What does make the Constitution inadequate is a defect of all rule-constituted instruments: they cannot avoid committing themselves to conceptions whose attractiveness is contingent on historical conditions beyond human control. The Constitution’s adequacy is thus wholly contingent on how the case for bourgeois liberalism continues to fare against evidence continually marshaled against it. Because this ever-changing evidence flows from and reflects unpredictable natural and social change, judgments of the Constitution’s adequacy can never amount to more than qualified, relative, and provisional affirmations of continuing political efforts to cope with continuing challenges. (pp.125-126)
Barber provides in essence a non-postmodernist’s conception of the “interpretive turn” and a living Constitution, one that is built on the history, words, and political theory of the Constitution.
On whether states’ rights trump national government power in deciding what constitutes the general interest in a welfarist state, Barber presents a telling and forceful argument:
When constitutional text and history fail to communicate a uniform message [as is the case with regard to states’ rights], an ethical argument is needed for reading text and history one way rather than another. This need for an ethical argument is sufficient to favor a nationalist view because an ethical argument must seek one (or one set) as opposed to a plurality of conflicting normative standards. (pp.127-128)
The role of courts in American constitutional development is a secondary consideration for Barber. Accordingly, he asserts that the “book has concentrated on welfare and the Constitution, not welfare and the courts. The Constitution is instrumental to ends that include the general welfare regardless of what role courts might play in pursuing constitutional ends” (p.142 (DELETE THIS PERIOD.). Most importantly, Barber writes
Courts should decide against Congress when Congress acts for antiliberal ends . . . [because they] exceed Congress’s powers [, and] . . . constitutional rights and the social preconditions of constitutional institutions presuppose liberal ends; liberal ends reflect an independently attractive conception of the people’s welfare; [and] antiliberal ends fail standards of public reasonableness that seem impossible to live without by choice. (p. 143)
Barber concludes the book with some thoughts on the role of courts versus legislatures in creating positive rights and in interpreting and implementing his welfarist Constitution. He first lists some judicially enforced positive rights under the Fourteenth Amendment—e.g., access to courts for businesses involved in labor disputes, freedom from state durational residency requirements before the poor can secure public assistance, and the right to attend racially non-discriminatory schools. However, he notes the court has held that the government is not obligated to provide the poor with noncustodial rights to education, public assistance, decent housing and medical care. Nor is the state obligated to protect a child from predictable violence. Thus, Barber observes,
Whether the instrumental Constitution argues against all or any of these decisions depends partly on what theory of individual and social well-being the Constitution is thought to embody and partly on what courts can achieve within conventions that separate judicial from nonjudicial action. These conventions are hardly so rigid that they preclude results different from those the Court reached in the school funding and police protection cases. (pp.151-152)
Therefore polity principles in the form of Court conventions do not rule out Court action. Decisions no different in kind than the Court has made in the past with regard to positive rights can be made to secure the right to welfare, education, and the other goods and services needed by citizens in the general welfare. Neither the history of the Founding of the Constitution nor political and [*593] constitutional theory precludes the welfarist Constitution that would provide such amenities as a matter of right:
The Constitution obligates the government to facilitate the real well-being of all its people, and there is no compelling reason to conclude that there is no approximate truth about the elements of well-being. Nor must we deny that a plausible interpretation of constitutional text and history can accommodate an approximation of that truth. But the complex, contingent, and unpredictable character of policies for facilitating any conception of well-being, together with the time-sensitive balance of needs involved in concrete funding decisions – and the ultimate need for public support – place most of the responsibility on legislators and their voting constituents. (p.152)
He then notes, “This is the bad news for those who see easy application to concrete cases or political practice as a requirement for propositions of constitutional theory” (p.152). There is a way out of this bind, however:
Finally, Barber criticizes ideological conservatives, who oppose judicial action when elected branches fail to address social problems because they see it as circumventing the Constitution and democracy, and liberals, who grumble at government’s failures to secure social change. He concludes by asking both liberals and conservatives to consider the following: “A court or any political actor that believes itself to be in either of these constitutionally ungoverned situations can look to Lincoln’s presidency for examples of constitutionalist action without constitutional warrant. Where the Constitution is no longer effective law, there can be no constitutional reason for not doing what one can do to restore and achieve the conditions for the Constitution’s effectiveness” (p.155).
Although his heavy reliance upon the FEDERALIST PAPERS may be considered by some scholars as insufficient to support his argument, Barber does a superb job in demonstrating that protecting the general welfare is a primary obligation of government under the Constitution. He effectively contends that what constitutes protecting the general welfare evolves, while exploring the changes in the collective vision that produced the Civil War Amendments.
Barber is adept when he reasons from moral philosophy that most governmental action, whether justified by negative rights principles or notions of positive obligations of government, must be viewed as redistributive, and when he demonstrates that no legitimate [*594] line can be drawn between choosing to protect people through negative rights and choosing to provide positive benefits, such as welfare and education, to citizens.
In addition, the book delivers a scathing criticism of contemporary policy-makers and theorists – including judicial and elected bodies alike, as well as both conservative and liberal constitutional scholars – for their misreading of what the Constitution means, for failing to see the welfarist nature of American constitutionalism. The document and the political theory behind it do not simply create limitations on government power.
Nonetheless, even if we agree with Barber that providing for the general welfare is a primary public obligation, it is not clear that the Framers required government to do so. Nor did the Framers believe that “We the People” must include all citizens. As a philosophical argument against a negative rights vision of the Constitution, the book succeeds quite well, but it is less effective as treatise on originalism.
Barber does not acknowledge that the Framers and the Constitution did exclude many from the ranks of true citizenship: racial minorities, women, and the non-propertied. The Electoral College and the process for selection of Senators were intended to limit the political power of some, such as debtors. At times, Madison explicitly refers to the poor as the most dangerous potential faction in the nation, which must be kept in check. Barber admits that poor relief at the Founding was made available by private entities, even though, by his reading, the framers considered providing for the poor to be in the general interest.
Finally, the Founders may have been procedure-oriented, concerned about protecting the rights of citizens from government rather than extending positive benefits—even if we assume that providing for the general welfare was considered a primary obligation of government. It is not clear that the Founders viewed all polity principles, such as separation of powers and federalism, primarily as means to secure the general welfare, rather than as ends that were simply good themselves. Moreover, such principles have an independent effect on judicial choices in the Supreme Court decision making process. Thus, Barber may overstate the instrumental nature of the Constitution, especially, as he views the role of principle in the judicial system.
Barber is on stronger ground when he considers Lincoln’s policies and the political development of the Civil War Amendments in light of what David Greenstone has called the reformed liberal component of American political culture, the obligation by government to help develop the faculties of its citizens. However, whether reform liberalism becomes primary to our nation’s and the Supreme Court’s definition of the general welfare, as Barber contends that it should, depends upon how our governing institutions deal with the conflicting values inherent in American political culture. Indeed, Greenstone argues that reformed liberalism is only one of three primary components, the other two being humanist liberalism (the view that the primary objective of government is to ensure against political and economic market failure), and republicanism [*595] (which finds that the role of polity principles and negative rights is to limit the abuse of citizens by government).
Therefore, in contrast to what Barber argues, republicanism must never be viewed as secondary to reformed liberalism. (Nor can we reject as matter of principle, humanist liberal principles as central aspects of American political culture, and view them automatically as secondary to reformed liberalism, as Barber does.) This point is most obvious when we consider the full implications of Barber’s suggestion that we reject all claims for full constitutional protection from “undomesticated illiberals” and “illiberals.”
He further contends that government “can lawfully combat anti-liberal practices and attitudes in the community.” However, revealed truths cannot be used as political evidence:
[C]onstitutional government in America can legitimately foster personal responsibility, and . . . it can legitimately discourage racism, forms of religious zeal, and a self-indulgence that breed indifference and blindness to public purposes, hostility to the ends of a liberal regime, and an incapacity to act on reasons that anonymous, competent, and autonomous persons can recognize as good reasons. (p.4)
Under such a rule, anti-homosexual laws as those invalidated in ROMER v. EVANS (1996) are permissible because “undomesticated antiliberals” bring “second class citizenship on themselves.” In fact, they are “so completely closed to the evidences of our experiences and reflections that to accept policy predicated on [their] belief[s] would be to accept [their] arbitrary tyranny over us” (p.135). The Constitution forbids “thorough-going antiliberals from expressing their distinguishing preferences in the most authoritative choices of communities in which they live, for to permit them to express themselves in this way would be to accept tyranny” (p.135).
Barber does recognize the need for expressive freedom and “diverse views, even anti-liberal views, in dialectical progress toward the best understanding of ends” (p.135). Security for “domesticated and active antiliberalism is also an element of constitutional power, one that is vital to the Constitution’s coherence . . . and openness” (p.136). Therefore, he argues that efforts to reform the Boy Scouts and similar organizations away from an anti-homosexual stance “should come through noncoercive means, not through the application of law” (p.136).
However, “school vouchers that parents can redeem at racist schools or at schools that prepare young people for lives of submission to religious authority” should be considered “unconstitutional congressional acts”(p.143). This is so because these vouchers not only offend the equal protection clause and establishment clause, respectfully, but also because they “undermine the secular reasonableness on which liberal constitutionalism depends” (p.143).
One can see the primary aspects of the “secular reasonableness” test in Barber’s scathing criticism of ZELMAN v. SIMMONS-HARRIS (2002), in which the Court allowed federal government spending on school vouchers, including [*596] those used for parochial schools. Barber argues there is no true private choice on the part of parents who use vouchers and that such policies undermine the preconditions for true deliberative democracy.
How far would Barber take this “secular reasonableness” test? What effect would it have on First Amendment neutrality principles such as those used to find a local anti-bias law unconstitutional in R.A.V. v. CITY OF ST. PAUL (1992)? How far could the Court allow society to define words and acts as illiberal and anti-liberal? Would this test trump polity and rights principles that are in place to protect private acts against government action that may fail “standards of public reasonableness?” The issue is not about whether one supports school vouchers. The question is whether certain aspects of Barber’s welfarist Constitution might undermine the bounded neutrality and discipline of constitutional law, as well as the polity principles which protect both citizens and the Supreme Court from instrumental politics and from any one conception of what the Constitution means.
Finally, this book raises interesting questions about the process of Supreme Court decision making, with regard to how positive rights are defined in practice. Therefore, it should be of interest to scholars of the Supreme Court as an institution in American political development. One could argue that the welfarist Constitution is already present, and can be furthered, even on the contemporary conservative Rehnquist Court – perhaps to a degree not recognized by Barber. This is due to the increasing importance of what I have called the social construction process in Supreme Court decision-making (Kahn 1999). This is described in the joint opinion in PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY (1992). It forms the basis for the Supreme Court’s eviscerating of BOWERS v. HARDWICK (1986) in LAWRENCE v. TEXAS (2003). It helps us understand why the Court chooses to sustain or overturn landmark decisions. The social construction process also ties Supreme Court decision-making to all three elements of American political culture.
Greenstone, J. David. 1993. THE LIBERAL PERSUASION: REMAKING AMERICAN LIBERALISM. Princeton, New Jersey: Princeton University Press.
Kahn, Ronald. 1999. “Liberalism, Political Culture, and the Rights of Subordinated Groups: Constitutional Theory and Practice at a Crossroads,” in David F. Ericson and Louisa Bertch Green (eds.). THE LIBERAL TRADITION IN AMERICAN POLITICS: REASSESSING THE LEGACY OF AMERICAN LIBERALISM. New York, NY: Routledge Publishing, Inc., 171-197.
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 U.S. 833 (1992). [*597]
R.A.V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992).
ROMER v. EVANS, 517 U.S. 620 (1996).
ZELMAN v. SIMMONS-HARRIS, 536 US 639 (2002).
Copyright 2004 by the author, Ronald Kahn.