Class, Race, U.S. Statebuilding and Popular Constitutionalism

Guest Blogger

For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024).

Emily Zackin and Chloe Thurston 

            We are grateful to Jack Balkin and Mark Graber for organizing this symposium and for convening such an illustrious group of participants. Thank you to our nine interlocutors – Rogers Smith, Teresa A. Sullivan, Bradley D. Hays, Julie Novkov, Devin Caughey, Carol Nackenoff, Timothy Weaver, Sarah Staszak, and Stephan Stohler – for their generous and insightful responses. We are unabashed fans of their scholarship, so it is a genuine honor to engage with them now about ours.

Given their brilliance, it is no surprise that each of these commentators has seen things in our book that we, who wrote it, did not. Each has also raised important questions that our book poses and cannot fully answer. We cannot do justice to all of them here, but we’ve tried to point toward fruitful approaches to several of these questions as we, along with our fellow scholars of American Political Development, constitutional politics, and American political economy, continue to investigate them.

State Building, Social Provision, and Debt Relief 

            As many of our discussants noted, the book has several aims. The first is to encourage scholars of APD to consider debt relief as a form of social protection, albeit one that (as Devin Caughey cautions) should not be viewed as a direct analogue to industrial welfare state policy.  The acquisition of credit has already been recognized as a form of statecraft, but no argument about credit as protective social policy can be complete without reckoning with the debt end of this relationship.

Considering debt relief as a form of social protection opens up an important and (if we do say so ourselves) fascinating set of concerns around how the US ended up with an unusually generous set of debtor protections, given longstanding understandings of the US constitution as primarily protecting property, a common view of the short-lived nature of the federal legislation and striking down of state legislation as evidence of an absence of state-building, and general (though as several have pointed out, now questioned) accounts of the nineteenth century American state as limited. We examine this through the development of federal bankruptcy policy and its relationship to state level debtor protections. By tracing the relationship between state and federal policies over time, we show a process of accretion, culminating in a robust state apparatus capable of protecting debtors, housed within the judicial branch. We also unearth a process of policy feedback, which created a group of professional stakeholders in the nineteenth century, whose power then waned by the early twenty-first.

Tim Weaver astutely observes that our account of political development includes the expansion in constitutional meanings and combines this concern with authority with a focus on governing capacity. This, he points out, let us see two kinds of development one might otherwise miss: short-lived debtor relief policies (at both the state and federal level) that nonetheless contributed to long-term shifts in constitutional meanings and changes within the judiciary that enabled it to administer federal bankruptcy law.

Bradley Hayes makes the important point that capacity and authority, while conceptually distinct, are empirically related, and highlights the need for further study of this relationship, especially within the judiciary. This strikes us as a particularly promising line of inquiry, since much of the literature describes judicial authority as either a product of judicial fiat—the judiciary asserting its authority—or of partisan maneuvering, political coalitions endowing the judiciary with authority so that it could do their dirty work. Hays points to a different mechanism, namely that “the judiciary’s administrative capacity created the means to shape and enhance its governing capacity.”

Teresa A. Sullivan raises an excellent point that although we highlight the role of the British tradition in shaping early American bankruptcy, we could have investigated the role of former Spanish colonies and Catholicism in introducing an ethic of care for the poor into U.S. debtor politics.

We think Sarah Staszak raises important questions about how to define debt relief, and thereby where one might look to see political mobilization. It’s true that a more capacious definition of debt and debt relief that extends beyond the state and federal politics of bankruptcy (for example, this one provided by Rachel Dwyer) could uncover political activity on behalf of debtors that occurs outside of the federal bankruptcy code, a welcome follow-up to our more narrow examination. Yet we also do not want to lose our central point, which is that we cannot read policy outcomes from economic interests ex ante. Instead, we must attend to the reasons demands for debt relief are met (or go unment) by governing officials. As several of our panelists pointed out, for instance, we end up with is a system that is not fully shaped by creditors, even when they were instrumental in bringing the issue of bankruptcy to the agenda. Nor were debtors’ demands ever fully met. Instead, both groups continued to exert influence state and federal policymakers and judges, yielding the fitful expansion of a welfare-oriented system of debt relief over the course of more than two centuries.

Finally, several commentators questioned whether expert-driven policies have different features and consequences from those created in response to demands from their beneficiaries themselves. We emphasized the organizational consequences of expert-driven policymaking –noting that the resulting policies are more politically vulnerable if they come under attack – but there may be important material consequences as well. Much of the literature on bankruptcy policy implies that expert-driven policy was indeed responsive to the material needs of debtors (though of course, then much of that literature was written by policy experts themselves).  Presumably the interests of debtors’ legal representatives are at least partially aligned with those of debtors – they should want to create a system that incentivizes people to file for bankruptcy – but in other ways their interests almost certainly diverge. This too is an important subject for future research,  which will undoubtedly follow David Skeel’s pathbreaking work along these lines. 

Identity, Ideas, and Debtor (Non-)Mobilization 

A second set of aims in the book is to explore the rise and fall of debtor activism in the twentieth and twenty-first century. We are grateful to the multiple commentators who highlighted questions about the formation of debtors’ identities, the use (and misuse) of ideas and ideologies about debtors, how these both might or might not relate to material conditions, and whether they may be some inherent limitations to the ability of debtors to demand more protective arrangements. 

As Julie Novkov and Stephan Stohler both highlight, one of the important lessons we draw from the political history of debt relief is that material interests do not shape political identities in a simple or mechanistic fashion. Instead, the formation of political identities around material interests is mediated, not just by race or ideology, but by macroeconomic conditions and organizational priorities. We think it is especially important for future scholars to examine organizational priorities at a greater depth than we do here, taking inspiration from Greta Krippner’s work on the challenges women’s organizations faced in contesting insurance discrimination; Megan Ming Francis’s work on movement capture during the mid-century civil rights era; and Dara Strolovitch’s work on the representational biases of advocacy organizations.

And we agree with Novkov that there is much more one could say about the politics of gender, since family structures and norms were so central to much of this policymaking. Devin Caughey urges us to remember that nineteenth-century farmers’ anti-creditor rhetoric leaned heavily on anti-semitic tropes, gesturing toward yet another ascriptive hierarchy at play in these processes. The biblical notion of jubilee, for instance, was at least a rhetorical resource for debtors, if not an actual inspiration, pointing to the larger role of religion in the politics of debt. 

As Rogers Smith and Stephan Stohler both note, however, ideologies do not have an independent effect on politics. Instead, they exert their influence through the political organizations and movements that draw on, shape, and advance them. Understanding the links between political institutions and ideas is, of course, another traditional strength of APD scholarship. Our book endeavors to do this with organizations that represented over-indebted people, both the farmers’ organizations that placed debt at the center of their agendas and the membership-based groups of the twentieth century (labor unions, civil rights organizations, women’s groups) that did not. But as many of the participants in this symposium point out, there are many other organized players here whose ideas we did not examine nearly as closely. Tim Weaver notes the inattention to late twentieth-century Democrats who supported the creditor-led effort to render bankruptcy law less protective. While we emphasized the role of creditor-led groups in shaping a narrative of bankruptcy abuse and profligate consumer spending, and its consonance with the Republican Party’s policy agenda, we do not offer a similar account of the Democrats, aside from mentioning the support of key Democrats for these efforts by 2005. Why did the Democratic party retreat from its commitment to economic redistribution? The political parties’ shifting commitments to these issues is surely an important element of the story of debt relief specifically and American political economy more generally. 

We might also turn to the law and society tradition to deepen our account of identity formation. As Stephan Stohler notes, the identity formation that we describe is certainly part of a larger process of legal mobilization, and unlike many of the movements described in the legal mobilization literature, this one does not center on language of constitutional rights. Nonetheless, we see the development of American debt relief as a story of popular constitutionalism. Questions about what, if anything, government has authority to do are classically constitutional questions and here, debtors’ influence proved powerful and durable. Organized debtors challenged the finality of Supreme Court doctrine as they insisted on state authority to provide them with relief, eventually winning the day when the Supreme Court re-read the Contracts Clause. Debtors also successfully pushed Congress to reimagine the Constitution’s Bankruptcy Clause as a source of federal authority to protect them. These expansions in both state and federal authority are still the bedrocks of our system of debt relief. 

            One concern suggested by several commentators is that, in devoting so much focus to ideas and institutions, we run the risk of neglecting material forces at play. Teresa Sullivan raises such a misgiving when she notes the role of collateral in helping to build nineteenth-century debtors’ standing in their communities and bolstering their case for debt relief, in contrast to the unsecured debts of the twentieth and twenty-first centuries that made consumer debtors more easily portrayed as profligate spenders. We agree that the existence of collateral may have put farmers in a different position vis a vis consumer debtors, that ubiquity of credit in the late twentieth century may have transformed the political possibilities surround debt relief, and that the costs of debt relief for future access to credit can shape the cleavages surrounding it. Devin Caughey, too, reminds us that there are real costs to debt relief in the availability of credit. 

          Something we do know is that these aren’t new concerns. Creditors during the nineteenth century also raised alarms about how debt relief would raise the cost for future borrowers. One reason states began to ease up on their own debtor relief in the wake of the Reconstruction Bankruptcy Acts was that it did indeed reduce the availability of credit. It is much more difficult for actors to map out the precise effects of a policy than to gesture in general directions, and one of the issues that has been contested over time is the question of just how costly (to creditors, to future debtors, and to society) any measure of debt relief may ultimately be. 

Race, Class, and Conflict in American Political Development 

            As several commentators noted, Rogers Smith most explicitly, the story we tell about debt relief also raises questions about the relationship between race and capitalism. Smith, characteristically, puts his finger on some of the central questions in this arena, “Are commitments to racial hierarchy somehow more fundamental than capitalist ones? Are they instead a superstructure arising from capitalism? Can the two ever be disentangled?” Rather than race trumping class/capitalism or commitments to capitalism being more important or fundamental than those towards racial hierarchy, our account demonstrates that in a racialized political and economic system, economic policies are always also racialized, just as racial projects are also structured by economic interests. Our book proceeded from the suspicion that describing the specific and changing nature of those linkages might be more fruitful than reaching for a single, grand narrative of racial capitalism. Whatever relationship may exist between the two will always be mediated through politics and political institutions. Debt – and debt relief – have never played a single or simple role, and race has been articulated and experienced in multiple ways.

One strength of APD scholarship is its sensitivity to change over time, rendering the categories of race and class less abstract and more contingent. Though racialized politics are always present and always linked to economic structures, their specific manifestations change over time. We examined the development of debt relief across a period where both racial orders and capitalist systems underwent multiple seismic transformations. We have tried to identify the differing role that debt relief played in each, and the way that each new order shaped the politics surrounding it. Debt relief was sometimes used deliberately to create and buttress racial hierarchy, but other times the consequences were largely unintentional and still other times, debt relief policies were crafted and promoted with an eye toward reducing racial inequalities. 

As Carol Nackenoff highlights in her post, even as U.S. capitalism flourished and transformed U.S. law, the demand for government protection from its vagaries continued to matter.  She notes that a previous generation of scholars had concluded that “class is not a part of the American political vocabulary.” Our book reveals the inadequacy and inaccuracy of this view. In the sustained political demands for debt relief, we see a demand for economic protection and sometimes even redistribution. Americans were able to think, talk, and organize around questions of class.

Emily Zackin is Associate Professor of Political Science at Johns Hopkins University. You can reach her by e-mail at ezackin1@jhu.edu.

Chloe Thurston is Associate Professor of Political Science at Northwestern University. You can reach her by e-mail at thurston@northwestern.edu.