Why, in comparison with other liberal capitalist democracies, is the social welfare state so poorly anchored in American law and public discourse? Surely American political and social history have contributed much to the weakness of our “social state.” But law, too, has played a significant material, as well as ideological, role and has provided the terrain for much of our social development. This essay explores the particular contribution of the property-liberty nexus to the stunted development of positive liberty and social citizenship in the United States. It traces this connection from the natural rights and bourgeois Founders through several key conjunctures in American history, including Reconstruction, the New Deal, and the civil rights periods and compares some of the results with developments in Germany and the aspirations of American progressives.

The essay contends that left and right alike have operated within a highly resilient and constricting framework that has made progress in the area of social citizenship both awkward and fragile. Although some possibilities for forward movement have always existed and still remain, the prospects for positive-liberty social-state law are not abundant: The master's house is not about to be taken down with his own tools.

Not long ago it was a central feature of critical scholarship that “liberal legalism” was beset by a set of antinomies that, when exposed, never failed to undermine overblown claims of law's majestic neutrality. In project after project, scholars demonstrated that beneath the smooth veneer of interlocking principles were conflicting doctrines that could be drawn upon creatively as judges saw fit. At the same time that contract law insists that the will of parties shall not be second-guessed, it accommodates the possibility that the parties made some mistakes or that agreed-upon terms might be commercially impracticable or even unconscionable. While the criminal law generally assumes that human behavior is intentional, it also relies extensively on deterministic discourses in doctrines such as duress, necessity, and provocation. Cutting across particular lines of doctrine were arguments about how the form of law under liberalism vacillated between a reliance on fixed rules and a reliance on flexible standards and how it also embraced simultaneously a formalist logic and a consequentialist one.

On 5 January 1879, the Chicago Tribune published an interview with Karl Marx that had been conducted in London a few weeks earlier. In the course of the interview Marx clarified the platform of the International Society as it had been established at Gotha in 1875. The platform was a litany of liberal reforms: universal male suffrage in all elections, popular referenda on issues of war and peace, the abolition of a standing army matched by universal military duty, the abolition of all laws regulating the press and public assemblies, free legal counsel and jury trials, universal public education, freedom of science and religion, a progressive income tax, legal restrictions on the length of the working day, the abolition of child labor, sanitary laws guaranteeing the safety of the living and working conditions of labor, and restrictions on prison labor.

Agreeing and sympathizing as I do with what I take to be the core of Professor Abraham's argument—that prevailingly American constitutional thought and public reason model their conceptions of liberty and basic rights too much on proprietorship and too little on citizenship—I confine myself here to a suggestion about the framing of the argument.

Suppose Charles Reich had typed “The New Citizenship” on the first page of his article. He might have rediscovered republicanism a generation earlier than the neo-republicans of the 1980s. Perhaps he might even have understood that a right to some minimum of property, sufficient to guarantee the independence essential to the exercise of citizenship rights, could be derived from concepts of republican citizenship.

Statements regarding the ratio of erroneous acquittals to erroneous convictions are often thought to have clear implications for standards of proof. For example, Blackstone's comment that “it is better that ten guilty persons escape, than that one innocent suffer’ is believed by many to imply a precise numerical value for proof beyond a reasonable doubt. Specifically, jurors should vote to convict only if they are at least 91 % certain of the defendant's guilt. Unfortunately, the belief that this decision threshold will lead to the desired ratio of judicial errors is simply incorrect. Depending on (a) the accuracy with which juries discriminate between truly innocent and truly guilty defendants and (b) the proportion of defendants who are truly guilty, this probabilistic standard of proof may lead to any ratio of judicial errors, including those favoring conviction of the innocent over acquittal of the guilty. Although standards of proof cannot be equated with error ratios in a simple manner, the problem lies not with probabilistic decision thresholds but with the desire to achieve a certain error ratio.