Balkinization: Political Science and the Progressive Constitution I: Race and Labor

Political Science and the Progressive Constitution I: Race and Labor

Mark Graber

Recently, progressives have been making significant efforts to elaborate an alternative constitutional vision to those being elaborated by the Bush Administration, the Rehnquist Court and the constitution-in-exile movement. For the most part, this effort has been limited to elite law professors, legal activists, and a few political activists. If, however, as progressives have come to understand, constitutionalism outside of courts is as vital to political movements as the elaboration of legal doctrine then we might want to expand the ranks of progressive intellectuals thinking about how to create a more just regime. What I thought I would do in the next few weeks is highlight the work of some political scientists who I think ought to play more active roles helping elaborate the progressive constitution and, as important, the sort of politics necessary to bring forth that constitution.

Consider the important work Paul Frymer of U.C. Santa Cruz is doing on the relationship between persons of color and labor unions. In a forthcoming book and an award winning article, "Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935-1985," published in the August 2003 issue of the American Political Science Review. Frymer details some of the constitutional struggles between two key components of the Great Society coalition. The good news is that he finds, contrary to the work of Gerry Rosenberg, that courts were able play a significant role integrating unions. Litigation was not a "hollow hope" in this endeavor. The bad news is that the litigation substantially weakened labor unions and may have increased Republican support among workers.

One potential teaching is that important differences may exist between progressive elites and potentially progressive constituencies. Most progressive intellectuals buy pretty much the full progressive agenda. We are anti-death penalty, for gay marriage, believe in affirmative action, favor strong unions, want substantial economic redistribution, etc. As Frymer points out, however, different progressive constituencies have only partially progressive agendas. White workers may be for strong unions, but are not as enthusiastic about integration, much less affirmative action. Hence, a crucial issue is not simply laying out elite ideals ,but figuring out the necessary compromises to ensure a more progressive constitution. Getting better judges is not likely to solve this problem, because what is crucial is that accommodations be worked out between progressive constituencies, not simply that we figure out who has the more progressive position.

At any rate, Frymer's work clearly should be central to elaborating progressive constitutional visions and politics. Crucial to Republican success has been an uncomfortable modus vivendi between social conservatives and libertarians (as well as big business). Creating similar accommodations will be crucial to any future leftist political success.

Posted 10:58 AM by Mark Graber [link]