Bad Faith: Race, Religion And The Reformation Of Welfare Law*
Richard Hardack received his Ph.D. in English and J.D. from UC Berkeley, and was visiting Assistant Professor at Haverford and Bryn Mawr Colleges. His work has appeared in such books and journals as Studies in the Novel; Callaloo; Boston University Journal of Science & Technology Law; The Arizona Quarterly; Multiculturalism, Roots and Realities; and Epistolary Histories: Letters, Fiction, Culture. The author would like to thank Kim Benston for his assistance over the years.
I believe [in the] premise [that competition is always better than state control] as a matter of religious faith
-Phillip Romero, Dean of The University of Oregon Business School
I believe in God and I believe in free markets.
This article focuses, in three sections, on the policy considerations, cultural constructions, and legal representations of welfare and welfare reform during several representative eras of racial politics in the United States. Section I of the article addresses how attitudes about welfare and race coincide with postmodern theories of the gift and the indeterminacy of need in the 1980s, and how political debate gives way to a surprising consensus on the meaning of welfare in that period. Under this consensus, government was no longer to use welfare to alleviate poverty or redress social inequity, but to stigmatize or punish the dependent, and ultimately to eliminate the eligibility of its recipients. As Lucy Williams succinctly argues,Page 540 [M]ost recent state initiatives are designed not to solve the multiple problems faced by poor women and children or to improve the economic conditions for such families, but rather to penalize them for their actions and to reduce welfare rolls. . . . These concepts, always an undercurrent in American history, surfaced with new vigor in the work of conservative scholars in the early 1980s.3
Williams specifically identifies George Gilder as an apotheosis of such conservative initiatives, and, as I address in the first section of this article, Gilder and the sociologist Robert Bellah typify the stifling consensus between conservatives and liberals regarding welfare rights that has dominated legislatures and the media since the 1980s.
Subsequently, in Section II, I trace some of the assumptions behind contemporary welfare symbolism to the American Renaissance: this period is crucial for understanding contemporary welfare politics because attitudes about race were partly codified during this period in reification of and reaction to the social and political legacy of slavery. Many of the images of black reproduction developed in the 1840s-50s continue "unconsciously" and rhetorically to shape political debates about individual identity, independence and dependence, gender, and reproduction. The ideas I address concerning white male independence from a planned and racialized federal government-represented in welfare as a demand side economy-but dependence on god and divine chance-which represent supply side economics-are central to understanding consensus attitudes about welfare. Both racialized and feminized, welfare functions as a declaration of dependence in a society still dominated by values developed to maintain the status quo of putatively independent, self-reliant and self-created white men.
In Sections II and III, I attempt to apply this cultural logic of white male independence/black female dependence to cases and welfare legislation of the past two decades, especially holdings and regulations that invoke images of black motherhood. An interdisciplinary language to assess the connections among some of the issues I address does not yet exist, and my methodology is unorthodox in some respects. For example, I read some of these authors, with particular focus on Bellah and Gilder, as much for their subtext as their overt claims. I do not discount what these writers claim they are saying, but do not take their texts atPage 541face value, and instead read them through a larger context that accounts for the "surplus" of their texts, the meanings and implications they cannot control. In some perspectives, such a reading may also distort the message they consciously intended to convey, but I believe it also provides a useful contrast and corrective to readings that fail to account for the larger cultural logic that courses through Bellah's and Gilder's works.
I hope to use this somewhat unfamiliar approach to show the many ways that supply creates its own demand in postmodernism, and effect its own cause; what we might call the "market supply," the "legal supply," and (for our purposes) the "unconscious supply," all create the subject rather than the reverse. The transcendental and postmodern "I" are both the effects of discourses-in other words of supply-rather than the subjects or causes of those discourses (or demands). The self does not pre-exist and then create, for example, the market, the law, or the unconscious. Nor does the self discover his need and then demand it be supplied. Instead, the law, market, and unconscious create him and mutable supply determines what he will want. Transcendentalism and postmodernism are both based in faith in an unseen, impersonal divine hand, producing similar inversions in beliefs about individual and social agency; both rely on a civic individualism that opposes the federal government, state planning, and limitations on human nature and agency, and relies on unpredictable chance. Postmodern economics takes over where transcendentalism left off and provides many of the same cultural functions; instead of divine nature, we have the divine invisible hand of the market. Regulation is not only ineffective; it interferes with the theology of capitalism. Finally, transcendentalism and postmodernism in America are predicated on specific forms of projection about race and gender. Because my subject involves a complex cultural issue beyond any one field, I have tried to use an interdisciplinary approach, one perhaps beyond the constraints, assumptions, and more narrowly defined topics of legal scholarship. As a result, this article may make unusual demands on its readers, but I hope will also provide analyses making those demands worthwhile.4Page 542
Because legislatures and political discourse in the media have shied away from discussing the cultural premises of welfare, particularly in relation to a defined minimum need, supply and demand, and race; it is all the more important for legal academics to analyze the issue. Of particular importance here is how welfare becomes anathematized in relation to planning, while other aspects of our heavily planned economy (those involving the manipulation of demand vis-a-vis fads, trends and marketing) are valorized. In this area I argue that the postmodern economics that demonize welfare is coterminous with and perversely reliant on the cultural conservatism that demonizes the relativism of multicul-turalism. In both contexts, human nature must be defined in terms of ethics and values, good and evil, but not in terms of defined economic needs, which can never be fixed in advance.
Though requiring some extended exposition before its terms become clear, my argument about welfare, the overarching topic of this essay, can be distilled as follows: First, postmodernism cannot accommodate a discourse of rights, specifically welfare rights or determinate need. Transcendentalism, and its racialized, more esoteric form of pantheism, and representations of African Americans in the antebellum period, provide a necessary backdrop for understanding the postmodern economy. Second, the Right particularly embraces postmodern uncertainty about human nature and definable needs (while rejecting other forms of relativism); it insists on faith in unpredictable and unregulatable economies of all forms, as well as local rather than federal control. Local control of welfare programs may also lead to local definitions of needs and rights. Such programs may in practice in some areas offer advantages and benefits, particularly where services can be tailored to local conditions. However, local control can also effectively subject welfare to fluctuating "market conditions" and create unpredictable local variations for rights than ultimately may be cognizable and enforceable only when formulated at the national level.