New Article: K. Sabeel Rahman, Constructing Citizenship: Exclusion and Inclusion Through the Governance of Basic Necessities, Columbia L. Rev. Vol. 119, Forthcoming (2018). Abstract below:
While income inequality has become an increasingly central focal point for public policy debate and public law scholarship, systemic inequality and exclusion are produced not just by disparities in income but rather by more hidden and pernicious background rules that systematically disadvantage and subordinate constituencies. This paper focuses on a particularly crucial — and often underappreciated — site for the construction and contestation of systemic inequality and exclusion: the provision of, and terms of access to, basic necessities like water, housing, or healthcare. We can think of these necessities as “public goods” in a broader moral and political sense: these are foundational goods and services that make other forms of social, economic, or political activity possible, and thus carry a greater moral and political importance. This paper argues that the way in which we administer these essential public goods represents one of the major ways in which law and public policy constructs systemic forms of inequality and exclusion. Conversely, the paper also argues that promoting equality and inclusion requires a more inclusionary approach to the administration of these public goods.
In Part I the paper develops the central theoretical argument that the provision of and access to basic necessities constitutes a central vector for structural inequality and exclusion — and more broadly, for the moral ideals of inclusion, equality, and citizenship itself. The importance of these public goods makes communities subordinate and vulnerable to those actors that can exert control over these goods. This normative critique parallels historical efforts to secure greater economic and social citizenship in part by contesting the power of actors that control infrastructure, from the Progressive Era fights over public utilities to civil rights battles over public accommodations. Part II then identifies three specific patterns of structural exclusion produced through the maladministration of these public goods: bureaucratic exclusion, fragmentation, and privatization. These three strategies are more subtle than direct denial of access; they represent a kind of “second-order” exclusion operating through background rules of governance and administration. Part III then imagines what a more inclusionary governance regime built to prevent these more subtle forms of exclusion would look like. Here the paper identifies three particular strategies for inclusionary administration of public goods: expanded enforcement authority; greater governmental accountability; and direct public provision.
Finally, Part IV of the paper links this exploration of structural inequality, exclusion, and public goods to broader debates in public law scholarship. First, this focus on public goods represents an important application and extension of the recently renewed interest in inequality and “constitutional political economy,” suggesting a concrete legal and institutional context in which the normative ideas and historical narratives developed in this literature can have purchase. Second, the focus on public goods also provides greater weight and context to current debates over the “deconstruction” of administrative agencies, particularly in context of economic inequality and racial and gender exclusion.
Poverty Law 