Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR KENT GREENFIELD
An internationally recognized scholar of constitutional law and corporate governance, Greenfield is the author of three books, including Corporations Are People Too (And They Should Act Like It) (Yale University Press).
What has the pandemic revealed about our conceptions of constitutional rights? This whole pandemic and the parallel uprising over racism have made me think about how our framework of rights is really narrow and maybe even impoverished here in the United States.
There are two things to talk about. One is about constitutional rights in the traditional sense. The other is a set of rights we don’t usually think of as having constitutional stature, but this moment makes me believe we probably should.
Let me do the traditional one first.
The last time we had a pandemic, the Spanish flu in 1918, was before America had a developed framework of individual rights. That changed through the 20th century, and citizens now take to heart an established set of constitutional rights.
In this moment, public health and public interest require us to take collective action and limit individual activities and behaviors in the service of the broader goal of stopping this deadly disease. Without a vaccine, the tools in our toolbox, at least on their face, restrict our freedoms. We have to be distanced from one another. We have to wear a mask. Church gatherings are limited. Businesses are closed so we can’t access goods and services.
For these traditional rights, constitutional law does a pretty good job in situations like this because in our framework every right involves a balancing test. Freedoms—whether speech or religion or whatever—can be limited if there is a compelling governmental interest served and the regulation is narrowly tailored to achieve its function. One of the things I emphasize in my classes is that everything is a balancing test—everything.
The difficulty these days is that our rhetoric of rights in America is much more black and white, and most people don’t recognize that rights-based discourse is inherently a balancing act. When we see people saying: I have a right to not wear a mask, or to gather for protest or worship, or to visit my barber shop, even though it’s going to hurt my neighbor or myself. Where you see people standing outside of businesses with assault weapons in order to protect the right of the business owner to open or, or churches meeting in violation of a general ban on gathering, or people refusing to wear a mask at Costco, these are situations in which the public understanding of rights is different from what the law actually is. In my view, the pandemic presents an extremely compelling reason to restrict rights for some reasonable amount of time. The balance has to be struck.
By the same token, limits on rights have to be based on a compelling reason. It is not proper, for example, to violently disperse a peaceful crowd of protestors for the purpose of a presidential photo-op.
That’s traditional American constitutional law. One thing I have been thinking about is how this moment shows how limited our vision of constitutional rights is. Other countries have a much more robust set of positive rights: an affirmative right to health care. An affirmative right to a social safety net that provides a dignified economic baseline of living. But in America, we don’t think of those as rights. But if I were to walk down the street in America today and ask what is important to people, I would guess that economic rights, the right to be safe from violence, and the right to be able to call your doctor when your kids get sick are at least as important to most people as the more traditional constitutional rights.
This shows the impoverishment of our national understanding of rights. First, our political rhetoric makes it seem like the rights that we do have are absolute and are insulated from any balancing, even in moments of pandemic. And second, it seems the rights that we enjoy here as a constitutional matter are really thin and incomplete—because what’s really concerning most Americans now in this pandemic are things that the Constitution has very little to say about.
What impact does that impoverished view of rights have on our everyday lives? We have been much less willing as a nation to make the sacrifices needed to stop this disease. People are asserting their right to not wear a mask when they go shopping at the mall, or they think that the inability to have picnics is something that is infringing on their basic fundamental rights. This notion of individual liberty is really part of the reason why we have been as a nation an abject failure in our response to this disease. We are not accustomed to collective sacrifice of the kind that this moment requires. Having said that, I think the biggest reason for our failure is the idiocy and corruption of the national leadership, particularly the president.
What would your vision be of a better rights framework? What a constitutional and political framework of rights should recognize is the notion of inclusion, of pluralism, of substantive equality. We are in this together. My ability to be safe completely depends on the ability of you to keep your family safe, and vice-versa. The best-case scenario would be for this to remind us, both as a constitutional matter and as a political matter, that our collective health and is important and something we all have to be invested in.
That’s my hope.
My fear is that it’ll turn out to be the exact opposite. That people will become increasingly isolated socially and culturally, that we will be more isolationist as a nation and even neighborhood by neighborhood. We see the rise in racism that’s occurring around the country. It’s not a coincidence that many in the national leadership started to downplay the importance of Covid-19 at around the time the demographics became clear that it was affecting people of color more than more than others. There’s a real risk that this crisis will drive wedges even deeper.
What would bring us closer to your vision of pluralism and inclusion? We need to start thinking about our rights in a much more robust way. Health care should be considered a fundamental right. Access to education should be considered a fundamental right. We need an economic safety net that is not full of holes. And those should be thought of as rights that are so fundamental that they are protected as a constitutional matter. I would love for this moment to be an engine for that discussion.
What would your recommendations be to our leaders? It’s impossible to answer that question without addressing the gorilla in the room, which is the lawlessness, incompetence, and corruption of the president. There’s no way we get to the other side of this crisis with patriotism intact, with a sense of the collective good, with a faith in the rule of law, and with a belief in the trustworthiness of the government, with Donald Trump as president.
If we get to January and Joe Biden is inaugurated in a moment where people are thirsting for a government they can trust and depend on, there is a real potential for a sea change. Efforts to protect workers, to expand health care, to strengthen protections for groups who have been victims of discrimination and violence—policy changes are in the box ready to be unpacked when the next president not named Donald Trump comes into office.
You spend a lot of time thinking about the rights and responsibilities of corporations. What has the pandemic revealed about that? I think it’s related. One thing that is utterly obvious at this point is that employer-based health care is a disaster when a quarter of Americans don’t have a job. We cannot have a decent, humane health care system this way. No matter how conscientious corporations are, no matter how well companies treat their employees, if people are not at work then they are completely exposed to both economic and health hardships. We have been too sanguine in believing that corporations will save us.
And not just that. We have corporations begging for bailouts. They couldn’t survive a three-month shock, even though they’ve been making record profits for a decade. One of the reasons for that is this notion of shareholder supremacy. Every little bit of surplus was being paid out in stock buybacks and executive compensation and not saved for a rainy day, not invested for the long-term, not shared with other stakeholders.
The notion that companies owe their primary allegiance to shareholders is shortsighted, and the pandemic shows how shortsighted that is. We now depend on people such as nurses and UPS drivers and grocery store stock clerks as essential workers. It’s now clear that our entire economic well-being depends on millions of workers we have long ignored.
This pandemic has shown the danger of our system in which the government has ceded the protection of public goods to the private sector. We either need a much more robust governmental framework of protection for people, or we need to change the understanding of what corporations are for, to make it more obvious that they owe responsibilities not just to their executives and to Wall Street, but to their employees and communities as well.
We see meat packers and Amazon workers getting sick, and Johnson & Johnson trying to evade corporate liability for their baby powder, and politicians pushing to shield corporations from liability for the safety of the people that work for them. That is the absolute opposite of what we should be doing. If we get through this and what we end up with is a legal framework that protects selfish decisions by companies even more than they are protected now, then I think our whole country is going to be worse off.
Of course, companies are not going to be made better by asking them to do better. We’re going to have to require them to do better.
So, rebuild it. For a more just world, what kind of corporate system would you have? Well, it can’t be just a corporate system. You need people to be able to go to work with health care rights, education rights, rights to an economic safety net that do not depend on their employer. That has to come from government. There’s no other way.
As an example, look at what countries like Germany do. Germany has laws and norms that require corporations to take into account the interest not only of shareholders but of their employees and other stakeholders as well. Companies have employees on their boards of directors. Companies are thought of as engines of wealth-creation not only for the richest people in society, but for a much broader range of citizens.
We can’t import the German system wholesale into the United States. But we can have a corporate governance framework that includes structural protections for employees and other stakeholders. More than that, we cannot depend on the private sector to save us in moments like this. We need a government that is competent and trustworthy and dedicated to the public interest. Unfortunately, we don’t have that right now.
Read all faculty Vision Project interviews here.