OWS and the Constitution
posted by Timothy Zick
Jack Balkin suggests that the Occupy Wall Street (OWS) demonstrations are, or at least could be, rooted in the Constitution. Balkin suggests that OWS’s complaint is partly about Citizens United and the perceived corruption of the political system by corporate interests. On a deeper level, he suggests, OWS’s complaint is that there has been a systemic failure of government — a denial of a “Republican Form of Government.” Thus, Balkin suggests, OWS is rooted in Article IV’s Guarantee Clause.
The fact that the movement could be about the Constitution does not mean that it ought to be, or that this is the most effective means of garnering public support for its agenda. Many successful social movements have rooted claims in constitutional text and principle. The Tea Party is only the most recent example. The Tea Party’s complaints map very well onto current debates over thinkgs like the extent of federal power and federalism. As Balkin and others have noted, the Tea Party has been successful at taking some claims that seemed “off the wall” and putting them, as Mark Tushnet perhaps more appropriately suggests, “on the table.”
This may not work quite as well for OWS. One can certainly think of constitutional arguments that have been in the cabinet, or on the shelve, that OWS might want placed back “on the table.” Among these might be arguments for positive or affirmative fundamental rights to housing, subsistence, health care, and education. OWS supporters might support measures that level the playing field with regard to expression, such that “poorly financed causes” have equal access to media and communications channels and the influence of corporate wealth on politics would be diminished or eliminated. And, of course, they could define their movement in anti-Tea Party terms — i.e., by keeping some constitutional arguments “off the table” and supporting the broad constitutional powers to spend, tax, and regulate commerce that Congress has possessed and exercised since the New Deal. The former arguments are likely to stay off the table, in part because they have no political traction in Congress or in state legislatures. Among other difficulties, defining themselves as an anti-Tea Party constitutional movement allows the Tea Party to define the agenda and set the terms of debate.
OWS might become a constitutional movement. It might, as Balkin suggests, find some purchase in the Guarantee Clause (although that provision seems not to translate well as a political slogan or platform). At this point, however, I think the part of the Constitution that speaks to OWS’s concerns most directly is its opening passage — the Preamble.
“We the People“ . . . in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.”
These fundamental principles seem to reflect what the protesters are most concerned about. This is a nascent populist movement. I’m sure if they were polled, the ”99 percent” would embrace the notion of a ”Republican form of government.” But they would embrace that principle because it is supposed to produce ”a more perfect” union, justice, tranquility, general welfare, and the “blessings of liberty” across generations. OWS supporters seem less concerned with the specifics of campaign finance law or principles of republican government than with their loss of employment and security, the decline in economic and social welfare, and the dimming prospects for cross-generational enjoyment of these and other Blessings. They blame the structure of government, but only in part. They lament what they view as a fundamental breach of the social contract — by their government, corporations, and fellow citizens. That’s a constitutional argument of sorts, but I think it’s also a more fundamental complaint about the current state and direction of social and economic welfare in the U.S.
Addendum: Over at Balkinization, Jason Mazzone and Jack Balkin debate the meaning of the Guarantee Clause and its relevance to OWS – here, here, and here.
October 20, 2011 at 10:18 am
Posted in: Civil Rights, Constitutional Law, Current Events
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Responses (5)
Shag from Brookline - October 20, 2011 at 10:29 am
Perhaps OWS protesters are more in line with FDR’s “Second Bill of Rights” from his 1/11/44 State of the Union address. See Wikipedia:
http://en.wikipedia.org/wiki/Second_Bill_of_Rights
Bruinrefugee - October 20, 2011 at 12:39 pm
What I’ve never understood is how Citizens United is treated as a pro-GOP/pro-big business ruling.
Here’s the top “heavy hitters” in political giving over the last ten years:
http://www.opensecrets.org/orgs/list.php?order=A
By my count, 9 of the top 15 are unions and the overall money has a heavy Democratic tilt. As I understand it, annually (or at least per election cycle), unions provide over $500 million in political spending. If you look at open secrets contributions by sector as well over the last 12 years, similar results tend to hold (e.g., lawyers are top givers and they run 60-82% Democrat; securities/investments tends to run about 60-65% Democrat; while certain industries tend to be pretty variable).
That doesn’t really address the constitutional merits, but it does raise the question of who’s really “buying” the government and how.
Orin Kerr - October 20, 2011 at 4:46 pm
If we apply Balkin’s standard, what social movement is *not* a constitutional movement? Every social movement that seeks to change the law is about improving government, helping people, ending bad things government has done or starting good ones. If we use Balkin’s standard, I’m not sure why all such movements wouldn’t be ultimately about the Constitution, at least at some level of generality.
A.J. Sutter - October 20, 2011 at 10:38 pm
Orin, I partly agree with your point, since Jack’s notion of “Constitutional” also embraces the “ideal” Constitution, i.e., the Declaration of Independence. Still, one might be able to distinguish in a fuzzy-logic, rather than bright-line way, even using his broad criterion. For example, one type of movement that might not rise to Constitutional level might be one that focuses on enhancing the punishment for certain crimes, e.g. Mothers Against Drunk Driving. Even though the OWS folks would probably like to see bankers punished, I think one could reasonably distinguish between the ensemble of issues pushed by OWS and that pushed by MADD as to which one invokes more Constitutional themes (in the Balkinesque reading). A different sort of counterexample might be the animal rights movement: it would be implausible to say that the Declaration was intended to apply to animals, even if one feels ethically that animals ought to have more “human rights”. A devil’s advocate might be able to make an argument that there’s nonetheless “some level of generality” at which even MADD or animal rights advocacy is about Constitutional issues, but that might not be a very useful level of generality.
Shag from Brookline - October 21, 2011 at 6:59 am
Hasn’t constitutional movement followed/resulted from social movement, i.e. progress? (Two steps forward, one step back?)
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