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Frank I. Michelman, Poverty in Liberalism: A Comment on the Constitutional Essentials, 60 Drake L. Rev. 1001 (2012).

Abstract: Does a political culture’s embrace of liberal constitutionalism – or does liberal political thought more generally – come laden with a deep-seated resistance to recognition of the injustice of structural poverty within a broadly affluent society, or to getting done politically whatever is required in order to abolish that injustice? For those inclined to say so, the philosophy of John Rawls might seem to pose a testing case. In our time, Rawls’s philosophical excavations of liberalism are the ones we might well regard as the most dedicatedly antipoverty of all, and so his works would seemingly be the last place to go hunting for evidence of an ineluctable resistance in liberalism to the subjugation of poverty by political means. If we find such evidence there, where in liberalism will we not? Rawls compiles a roster of “constitutional essentials,” meaning commitments that must be observable, in practice as well as in form, in the basic laws that constitute a country’s political and legal regime, in order to render that regime legitimate in the sense it can command morally the compliance of citizen with laws and policies that issue from it, regardless of disagreements about whether those laws and policies are truly compatible with the demands of justice. Now, Rawls decidedly and deliberately excludes from the constitutional essentials a guarantee to everyone of what he calls “fair” (as distinguished from merely “formal”) equality of opportunity – even though, in Rawls’s view, a regime that fails to satisfy fair equality of opportunity may for that very reason be gravely unjust. This paper asks whether the Rawlsian exclusion of fair equality of opportunity from the constitutional essentials should be taken as a sign, even within the thought of Rawls, of the incapacity of liberal constitutionalism, with its prioritized commitment to individual rights and liberties, to grasp and respond fully to the injustice of avoidable structural poverty. The paper answers “no.” It finds that constitutionalization of fair equality of opportunity remains an open and debatable question within liberalism as conceived by Rawls, and furthermore that Rawls’s own reasons for deciding against constitutionalization contain nothing to detract from his insistence that fair equality of opportunity is a strict requirement of justice. This paper was prepared for a symposium on “Constitutionalism and the Poor,” held at Drake Law School on April 14, 2012, under the sponsorship of the Drake Constitutional Law Center.