OWS and the Constitution

To become a sustained and sustainable force for change, it is quite clear that Occupy Wall Street (“OWS”) will eventually need to engage in “grubby, time-consuming” politics—not just of presence and protest, and certainly not of vandalism and violence, but also of the electoral and judicial kind. There is thus a fundamental need for OWS to articulate a coherent and viable vision of change, a vision that is grounded in and legitimated by the Constitution.

The Tea Party cannot—and does not—have a monopoly on telling Americans what their Constitution means. Influential academics—such as Prof Lessig of Harvard and Prof Balkin of Yale—have evinced support for viewing OWS as a quintessentially constitutional movement. “We are the 99%” is a clear complaint about economic inequality.

So it is important to engage with the question of whether there are any textual or doctrinal hooks in constitutional law that OWS supporters can hang their “political” hats on. One can already discern several constitutional arguments in the OWS’ “mélange of disparate causes”; for instance, an alternative understanding of the First Amendment’s applicability to corporations, as well as a proposed Environmental and Social Responsibility Amendment.

Further, Prof Balkin makes an interesting argument that the OWS may seek to frame their demands as the pragmatic embodiment of the concerns underlying the Guarantee Clause of Article IV of the Constitution. The Clause reads: “The United States shall guarantee to every State in this Union, a Republican Form of Government.” Prof Balkin explains that a “Republican” form of government is one that is representative of and responsive to its constituents.  The Clause sought to prevent a “small determined faction”—read corporate interests—from using the levers of government to entrench themselves in power and “hijack” the government to do their bidding to the exclusion of the general public.

This innovative proposal to resuscitate the Guarantee Clause from the depths of doctrinal oblivion has elicited some debate over whether the Clause was originally intended to apply to the federal government, or only against states. One response is that the original meaning of “republican” comprehended the rejection of factionalism, which would logically apply to the federal government. (Balkin also resorts to the “republican” premise of the Second Amendment to shore up his general anti-tyranny claim against federal government).

Yet, even if the Clause also applies to the federal government, its text would still incontrovertibly address the ‘States’ as its intended repository of the right; not the People as represented by the grassroots OWS. This would perhaps seem apposite, given its placement in Article IV, which ensures the security of state governments against, inter alia,  coups that oust representative forms of government.

While the Clause might arguably confer a judicially cognizable right on the states against the federal government to ensure that it bears a representative, republican character, the Supreme Court has not yet held that it confers judicially cognizable rights upon individuals. [Laurence H. Tribe, American Constitutional Law 910 (2000)]. Perhaps—like the gun rights movement’s espousal of an “individual rights” reading of the Second Amendment recognized by the Court in Heller—Balkin’s reading of the Clause will be espoused by OWS and one day take hold in doctrine through the communicative pathways of “popular constitutionalism”.

However, as of today, The Court’s doctrine in the economic inequality context has focused largely on the “open-textured” Equal Protection and Due Process clauses. Goldberg v Kelly [397 U.S. 254 (1970)]—holding that that the Due Process clause requires an evidentiary hearing before depriving a recipient of certain government benefits (welfare)—relayed the rationale behind the Equal Protection cases in the area of welfare rights, i.e., the recognition that the poor are innocent victims of socio-economic and legal forces. This indicates another possible doctrinal underpinning for recognizing some sort of affirmative duty to remedy some of inequality’s most debilitating repercussions—welfare ensures subsistence, and hence enables access to opportunities to participate meaningfully in the community. [See further Laurence H. Tribe, American Constitutional Law (1988); Cass R. Sunstein, The Second Bill of Rights (2004) ]. These “duties” may also thus be grounded as the means to achieve the Preamble’s objectives.