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.