Protecting Civil Rights in the Shadows

Beyond grand constitutional moments such as the New Deal and the civil rights era, the American people also remove other, less prominent issues from majoritarian politics. This process of petit popular constitutionalism resolves numerous important issues of government structure and is crucial for vulnerable groups seeking to implement and expand gains they made during grand constitutional moments. In our two-party system, this gives groups three options. They may join one party's core constituency, attempt to position themselves as a swing constituency, or seek to establish their concerns as moral imperatives outside of partisan debate with the leadership of a few mainstream politicians of each party. Exerting influence as a core constituency or swing group requires coherence, communication, and group identity that many sets of vulnerable people lack. The alternative petit constitutional route typically requires paring back a group's objectives to essential aims that can win wide acceptance as moral imperatives across the political spectrum. Since the 1960s, policy for means-tested public benefit programs has been torn between a partisan "welfare rights" track and a petit constitutional "anti-poverty" theme. The 1996 welfare law represented the final defeat of welfare rights in partisan politics. This leaves low-income people dependent on petit constitutionalism, following the same path that death penalty abolitionists and others took after being disowned by one or the other political party.