The Triumph of the Welfare State Model
Hitler’s defeat halted the spread of the totalitarian model of the state—at least in Western Europe. In contrast and opposition to the communist Soviet model, the United States stood as the primary defender and champion of the liberal state— though America was hardly as liberal as it once been, having clearly accepted enhanced social welfare as a legitimate end of government, and having adopted policies to pursue it.
Consequently, following World War II a new model of the state arose according to which democracy and freedom would have to be reconciled with government intervention in the economic and social spheres. This interventionism, however, proved legally problematic both in the U.S., where the New Deal was initially attacked as unconstitutional, and in Western Europe, where the architects of the law and state had to develop a model in which public power could once again be delimited by constitutions.17.8.1 The Welfare State and the Rule of Law
From the point of view of Western constitutional history, the defeat of Italian fascism and German Nazism was followed by a need to regain a vision of the state based on and bound by the rule of law. This did not, however, involve the restoration of the pure liberal state, as it was understood that political power ought to continue to be exercised to prevent social injustice. This essential transformation had important constitutional consequences. In the United States Roosevelt’s New Deal faced opposition in both Congress and the Supreme Court, while in Europe, Hans Kelsen had to revive a constitutional model that made the rule of law compatible with government attention to social concerns.
17.8.1.1 The New Deal and the U.S. Constitution: New Measures Raise
New Questions
Once the panic unleashed by the Great Depression had subsided, voices in America’s private sector began to criticize the terms of the interventionist legislation that had been introduced to deal with the crisis.
Many businessmen declared war on the New Deal, calling it a “socialist” program incompatible with traditional American individualism. Conservative politicians revolted[1065] [1066] and succeeded in getting the United States Supreme Court to declare some of the laws implemented under the New Deal unconstitutional. The Roosevelt Administration, however, fought hard against the idea of the Supreme Court attacking a democratically elected authority enacting policies allowing the country to overcome economic107
crisis.
The confrontation between the Democratic president and the Supreme Court was an ongoing affair. The former was committed to establishing a new model of an interventionist government acting to defend the disadvantaged (welfare state), while the latter sought to retain the traditional laissez faire conception of the economy and the state. In the end Roosevelt won the clash with the Supreme Court simply because he remained in office for so long, winning re-election in 1936, 1940 and 1944. As a result, judges opposed to the New Deal gradually retired and were replaced by others sympathetic to the welfare state model, that consolidated what has been called the “New Deal Constitutional Revolution” (Purcell 2002, 238-255), which created in the U.S. the bases for the development of Administrative Law (White 2002, 94-128). When Roosevelt died in April 1945, he was succeeded by Vice President Harry S. Truman who, against all odds, was re-elected in 1948 in an extremely close election.[1067] Thus, when Dwight D. Eisenhower became the 34th President in 1953, the Democrats had held the White House for 24 years. By this point, the Republicans were in no position to abolish Roosevelt’s historic reforms, which had become entrenched. The principle of the Administrative State had come to be recognized as compatible with the U.S. Constitution[1068]
The New Deal did not provide definitive solutions at the economic level, as the United States failed to truly emerge from the crisis until massive rearmament activity began in response to the outbreak of World War II, when the country became what President Roosevelt called “the arsenal of democracy”.
However, it did radically change the social landscape in the United States, where social inequality was mitigated and unions protecting the rights of workers grew stronger. Though the nation’s pronounced commitment to free markets was pared back and tempered, even after these changes, the United States continued and still continues to embrace laissez faire much more strongly than does Europe.Things were and are a little bit different in Europe, where the notion of a strong state, as we have seen, has deeper historical roots. This is why after the end of World War II in European democratic nations, from a constitutional point of view, there appeared an intermediate state model lying somewhere between the liberal and totalitarian alternatives, an interventionist state but one bound by the Rule of Law, a new constitutional pattern whose principles were perhaps best defined by the Austrian jurist Hans Kelsen.
17.8.1.2 The Recovery of the Idea of the Social Pact. Hans Kelsen and the Contemporary Revival of the Rule of Law
After the Nazis’ defeat in 1945, eminent western lawyers and legal scholars acted to redefine a model of the state that, without giving up elements of social welfare, would be compatible with the democratic system. The leading figure of this movement was, without any doubt, the founder of the Vienna School of legal theory, Hans Kelsen (1881-1973). The Austrian devised a Pure Theory of Law (Reine Rechtslehre) through which he advanced the principle of Geltungsgrund der Rechtsnormen (“a foundation of legal validity”) aimed at rendering the law independent of political power.
The case of Kelsen is all the more interesting because initially, in his youth, he had been a strong advocate of law’s subordination to the state. In fact, in an early stage he had fully linked the two. In his first work, entitled Main Problems in the Theory of Public Law (Hauptprobleme der Staatsrechtslehre), first published in 1911 in the Austro-Hungarian Empire, he argued that the foundation of a law should only be sought in the mandate which affords it obligatoriness, by virtue of what he called the principle of “attribution” (Zurechnung), according to which a given act (illicit) necessitates a specific reaction (the sanction).
According to this doctrinal approach, the law was simply whatever the state decided (Vinx 2008, 15-23)—which makes it easier to understand why the relatively late consolidation of the state in Germany, in the last third of the nineteenth century, led German lawyers to defend the idea of a strong state. Thus, for a young Kelsen the law required no other justification other than its simple recognition by legislators, who in this way became the legal sphere’s primary agents, to the manifest detriment of judges, whose function was not to transcend a perfunctory application of the law.The political events culminating in the rise of Hitler’s Third Reich (1933-1945), however, prompted Kelsen (who had fled the Nazi regime, first taking refuge in Switzerland and later the United States) to alter his thinking, calling for a separation of the legal sphere from political power, differentiating legality and legitimacy (Maccormick 1989, 184-193). This was the concept which inspired his works The Pure Theory of Law—Reine Rechtslehre—1934—a work revised in 1960 (Kelsen 2005)—and, above all, General Theory of Law and State, published in 1941[1069] (Kelsen 2007). It was during this second stage of his thought that Kelsen formulated his famous theory of the logical structure which, applied to the general legal system, resulted in the formulation of the principle of a hierarchy of norms. Kelsen structured the legal system as an imaginary pyramid in which legal norms supported each other, constituting a “rising formation” (Stufenbau) at the top of which was the “fundamental norm” (Grundnorm), characterized by not depending upon on any other (Raz 2009, 122-160) and constituting the ultimate foundation of the legal system’s validity (Janzen 1937, 205-226).
From the point of view of legal history, Kelsen’s thinking unquestionably marks a return to the idea of the social pact (Leroy 2011, 361-374). The basic norm (Grundnorm) is the basis of the legal system’s legitimacy because it is the product of said pact, the essential rule by which a social community agrees to abide.
The novel development was that in his new approach Kelsen did not focus on the state. Rather, the state occupied a secondary role, eclipsed by and subordinated to the law, to be administrated by a legal system that became the essence of the social pact. According to current legal thinking, the law becomes, then, a separate category, insofar as it justifies itself. It is “pure”, to use Kelsen’s terminology, because is separated or differentiated from the state (Somek 2006, 753-774) and not at its mercy, as was the case during the era of absolute monarchy, or under the totalitarian regimes of the twentieth century (MacCormick 1993, 1-18).This does not, however, preclude the “constitutional pact” from including social rights as the basis of the agreement upon which the state rests.[1070] That is, the principle is compatible with greater or less state intervention in the lives of individuals. Thus, a Kelsenian approach is fully compatible with a “welfare state” provided that it is bound by the Rule of Law.
17.8.1.3 The “Constitutionalization” of Public Law in Europe as a Buffer Against the Strengthening of the Executive
Kelsen’s doctrine represents a victory of law over power, the primacy of limits imposed by the legal sphere over the political realm (Kalyvas 2007, 122-160). Thanks to him, the trend in Western Europe after WWII was for constitutions to stand above and beyond election campaigns, and the establishment of constitutional courts has become widespread to ensure the protection of the social pact outlined in and guaranteed by state constitutions, thereby protecting minorities from temporary political majorities.[1071]
In broad strokes, then, it may be said that Europe is moving towards the American constitutional model, according to which constitutions may be defended by judicial means from attacks upon them by politicians. The law must prevail—at least theoretically—against the “anything goes” spirit of political combat.
However, this effort undoubtedly requires the “depoliticization” of the constitutional courts, which is not always easy.[1072]17.8.2 The Spread of the Welfare State After 1945
Prior to World War II, the adoption of social measures in the West did not mean the establishment of universal social welfare systems financed by the state—at least in democratic regimes, though, as we have seen, Hitler and Mussolini did institute sweeping state social welfare systems. After 1945, however, the western democracies which had defeated Hitler and Mussolini would take major steps towards the establishment of welfare states, within democratic and constitutional frameworks, by virtue of social welfare legislation, such as the adoption of the Beveridge System in the U.K.—the first comprehensive public health system fully funded by the state to appear in Western Europe (Majnoni d’Intignano 1993, 27-30).
The policy of economic interventionism initiated by Roosevelt in the United States had repercussions in Europe, where democratic governments also began to implement interventionist policies in the defense of workers. A quite significant example is that of France, where a provisional government issued an executive order (ordonnance) creating a Social Security system in 1945[1073]—something that the Third Republic proved incapable of doing, even during the Popular Front (leftist coalition) period.[1074] In the second half of the twentieth century, most advanced western countries established universal public health systems financed by taxation, controlled by the legislative branch, and managed by a public body—with the exception of the United States.[1075]
17.8.3 The United States Stands Alone: From Roosevelt
to Obama
Despite the implementation of the New Deal to fight the consequences of the Great Depression, following World War II America diverged from its European counterparts by never providing for universal, state-provided medical coverage, leaving Americans to continue to depend upon private medical insurance. For decades, many members of the Democratic Party have called and campaigned for the introduction of federally-backed medical coverage for all citizens, with plans and efforts intensifying during the 1960s under President Kennedy and President Johnson, with their “New Frontier”, “Great Society” and “War on Poverty” programs. Despite the optimism and idealism which characterized the era, these plans never came to fruition, and support for them withered amidst the turmoil of the late 1960s, the malaise and economic crisis of the 1970s, and the conservative revolt of the 1980s. It would not be until Democratic President Bill Clinton (1992-2000), that another serious presidential campaign for universal coverage was attempted: the Health Care of Act of 1993 faced massive opposition and went down to defeat in Congress.[1076]
The establishment of universal medical coverage would not prevail in the U.S. until 2010 and passage under President Barack Obama of the “Patient
Protection and Affordable Care Act” (ACA) and the “Health Care and Education Reconciliation Act” (HCERA) more commonly known as “Obamacare”.[1077] These two pieces of historic legislation were met with cries of protest and opposition, and brought before the Supreme Court for review by those alleging that federal power could not extend global medical coverage throughout the 50 states.[1078] In 2012, the nation’s high court ruled that both laws were, in fact, constitutional, marking a landmark decision in the history of the welfare state in the U.S.[1079]
17.9