Towards a Social-Liberal Vaccine for Neoliberalism: Michelman’s Antipoverty Project and the Principle of Legal Immunization

Brian W. Nail

doi:10.5771/2193-7869-2015-3-245

Contents
- Chapter Expand | CollapseAuthorsPage
- 171–171 Titelei/Inhaltsverzeichnis 171–171
- 172–172 AutorInnen 172–172
- 173–182 Editorial Johan van der Walt Johan van der Walt 173–182
- 183–205 Legitimacy, The Social Turn and Constitutional Review: What Political Liberalism Suggests Frank I. Michelman Frank I. Michelman 183–205
- 206–211 Legitimation by Constitution and Socioeconomic Rights from a German Perspective Dieter Grimm Dieter Grimm 206–211
- 212–219 Political Liberalism or Political Right? A Commentary on Michelman’s Legitimacy, The Social Turn and Constitutional Review Martin Loughlin Martin Loughlin 212–219
- 220–223 Questions About Michelman’s Second Proceduralization Mark Tushnet Mark Tushnet 220–223
- 224–228 Legitimacy: The Social Turn and Constitutional Review: What political liberalism suggests: A Reply to Frank I. Michelman Dennis Davis Dennis Davis 224–228
- 229–244 The Dead End of the “Social Turn”: Social Cooperation as the Foundation of Legitimacy Thorsten Fuchshuber Thorsten Fuchshuber 229–244
- 245–270 Towards a Social-Liberal Vaccine for Neoliberalism: Michelman’s Antipoverty Project and the Principle of Legal Immunization Brian W. Nail Brian W. Nail 245–270
- 271–283 Political Liberalism and Civil Disobedience: The Morgentaler Affair Revisited Richard Mailey Richard Mailey 271–283
- 284–302 Constitutionalization of Socio-Economic Rights at the EU Level: Some Critical Notes Orsola Razzolini Orsola Razzolini 284–302
- 303–338 Delegitimation by Constitution? – Liberal Democratic Experimentalism and the Question of Socio-economic Rights Johan van der Walt Johan van der Walt 303–338
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KritV Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft , page 245 - 270

Towards a Social-Liberal Vaccine for Neoliberalism: Michelman’s Antipoverty Project and the Principle of Legal Immunization

Autoren

Brian W. Nail

DOI
- doi.org/10.5771/2193-7869-2015-3-245
- ISSN: 2193-7869
- ISSN online: 2193-7869
Abstract

For nearly five decades, Frank Michelman has undertaken a sustained critical engagement with legal philosophical debates over the constitutionality of socio-economic rights. His work remains crucial to articulating a legal philosophical response to the emerging politics of austerity and the ongoing neoliberal assault on social welfare. In his famous 1969 Harvard Law Review Foreword, On Protecting the Poor through the Fourteenth Amendment, Michelman describes the role of the court “as a body commendably busy with the critically important task of charting some islands of haven from economic disaster in the ocean of (what continues to be known as) free enterprise.” In the 1960s, when Michelman began his search for a constitutional rationale for socio-economic rights in America, the legal and political discourse on social welfare had already undergone a number of important shifts. The right to earn a decent income was no longer associated strictly with the right to work; instead, the ability to receive an income was considered to be a right in itself, regardless of whether or not an individual was able or even willing to obtain gainful employment. Consequently, the longstanding distinction between the ‘deserving’ and ‘undeserving’ poor had begun to dissolve. According to William Forbath, these changes in America’s approach to social welfare had been secured through a series of progressive rulings that “seemed to be verging on judicial recognition of something very much like rights to minimum welfare, education and other forms of social provision[.]” However, this progressive approach to socio-economic rights was effectively derailed by a Republican victory in the 1968 presidential election. With the rise of neo-conservativism in the 1970s, Lyndon Johnson’s War on Poverty was quickly supplanted by what was essentially a war on the impoverished themselves; while the rhetoric of austerity gained currency as a supposed solution to the economic stagflation which plagued America’s economy, the welfare state became a primary target for political conservatives and economic libertarians who had become increasingly enthralled with Milton Friedman’s economic philosophy of small-government and free-enterprise. Nevertheless, following the trajectory established by the welfare rights movement, Michelman’s work remained committed to searching out legal philosophical arguments for the constitutional right to social welfare. However, his approach to the problem of poverty would depart in a number of important ways from the aims that had defined Johnson’s perhaps overly ambitious War on Poverty. Rather than approaching poverty as a by-product of discrimination that could be counteracted by ensuring equal access to economic prosperity, Michelman, in a rather pragmatic way, understood inequality to be an indelible feature of liberal, free-market societies. The challenge, as Michelman understood it, was not finding a legal cure for inequality; rather his antipoverty work was focused on providing actual, state-sponsored relief from the ravages of poverty.
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