Rethinking constitutional welfare rights.

• Author: Liu, Goodwin

INTRODUCTION I. ON PROTECTING THE POOR II. ONE VIEW OF RAWLS'S THEORY OF JUSTICE A. Judicial Review in Ideal and Nonideal Theory B. The Uneasy Role of Moral Theory in Adjudication III. TOWARD AN INTERPRETIVE APPROACH TO JUDICIAL RECOGNITION OF WELFARE RIGHTS A. Michelman Revisited B. One View of Walzer's Spheres of Justice C. Some Examples D. Limiting the Judicial Role IV. OBJECTIONS A. Conservatism and Criticism B. Indeterminacy and Judicial Activism CONCLUSION INTRODUCTION

Once a subject of intense interest in the courts and legal academy, the idea that our Constitution guarantees affirmative rights to social and economic welfare has for some time been out of fashion. In 2001, William Forbath observed that "like Banquo's ghost, the idea of constitutional welfare rights will not die down, but it is not exactly alive, either. No flesh or even sustained arguments on its behalf have appeared for over a decade; only nods, and glancing acknowledgments." (1) As a doctrinal matter, the prevailing view is that issues of poverty and distributive justice should be resolved through legislative policymaking rather than constitutional adjudication. (2) Some commentators (myself included) have argued that such policymaking may yet have constitutional significance if the existence and binding force of constitutional welfare rights are distinguished from the question of judicial enforcement. (3) But it remains a fact of our legal culture that what counts as a constitutional right is deeply shaped by the courts, and for a generation, our courts have steered clear of social or economic rights, (4) even as severe deprivation and inequality continue to pose serious challenges to our commitment to human dignity and equal citizenship.

Things were not always so. During the 1960s and 1970s, welfare rights held a prominent place on the public agenda not only in the legislative process but also in mainstream constitutional discourse. (5) In the Supreme Court, the subject percolated long enough in equal protection and due process doctrine for us to see justiciable welfare rights as more than an idle aspiration, and the resulting precedents remain on the books. (6) Moreover, as Cass Sunstein has argued, the judicial retreat from welfare rights was a near thing, occurring in the wake of President Nixon's narrow electoral victory in 1968 and his improbable opportunity to appoint four new Justices to the Court between 1969 and 1972. (7) The four Nixon appointees joined Justice Stewart to form a bare majority in San Antonio Independent School District v. Rodriguez, the pivotal 1973 case upholding unequal school funding based on differences in local wealth. (8) And yet, for all of Rodriguez's skepticism toward judicial recognition of social and economic rights, the Court felt compelled to reserve the question, still dangling today, whether the Constitution guarantees a minimally adequate level of educational opportunity. (9)

Of course, no prudent advocate would bring this type of claim before the politically conservative Court now sitting. But that is not a reason to leave such questions unattended. "A period of no power is a period for the reformation of thought," the late Charles Black once said, "to the end that when power returns it may be more skillfully, more fittingly, used." (10) In that spirit, I attempt in this Article a small step toward "reformation of thought" on how welfare rights may be recognized through constitutional adjudication in a democratic society.

In approaching this large and difficult subject, my goal is not to offer anything like a comprehensive defense of the justiciability of welfare rights (if such a defense were possible). Instead, I proceed by revisiting an important strand of the subject's intellectual history--the early work of Frank Michelman (11)--to frame the problem of judicial legitimacy, to consider how moral theory should inform possible responses, and ultimately to probe the proper role of courts within a dynamic, socially situated account of how constitutional welfare rights come into being. My primary aim is not to determine whether the Supreme Court should presently recognize a constitutional right to education, health care, or some other social good. It is rather to suggest a way of thinking about such questions that captures the socially contingent character of welfare rights and the contours and limitations of the judicial role that flow from it.

My point of departure is Professor Michelman's justly famous 1969 Foreword to the Harvard Law Review, titled On Protecting the Poor Through the Fourteenth Amendment. (12) In that article, Michelman sought to rationalize an emerging line of equal protection decisions by the Supreme Court under a theory of minimum welfare rights. His key insight was that, in attacking the ills of poverty, claims nominally styled as wealth "discrimination" are better understood as claims of material "deprivation"--that is, as claims of inadequate rather than unequal provision of certain basic goods. This characterization, he argued, provides not only a better descriptive account of judicial decisions on welfare rights but also a better tactical approach for engaging the courts in this area within the limitations of the judicial role. As well-developed as these claims were, however, Michelman said little about the source of the minimum-welfare thesis and why it would be legitimate for courts to act on it.

Four years later, Michelman turned to those issues in a second important article, In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice, (13) one of the first and most insightful efforts to bring constitutional theory into conversation with John Rawls's signature work. (14) Michelman argued that Rawls's theory aids the legitimacy of justiciable welfare rights in two ways. First, by providing a substantive basis for deriving the content of minimum welfare rights, Rawls's principles of justice enable us to see that judges who act on the minimum welfare thesis are responding not to ad hoc intuition but to a systematic moral theory. Second, because the principles of justice under Rawls's theory are what the public would accept in an ideal society with a fully developed sense of justice, judicially enforceable welfare rights serve as an appropriate corrective device in a nonideal society like ours to "cop[e] with evolutionary deficiencies in the public's sense of justice." (15) Michelman sought to ease the tension between democracy and judicial review by positing that constitutional adjudication serves to reveal and clarify the moral principles latent in the public's own evolving sense of justice.

Michelman's reading of Rawls has many interesting complexities, which I examine in due course below. The main theme that emerges is the idea that judicial recognition of welfare rights, instead of appearing "fitful, unprincipled, and apologetic," (16) can achieve a desired measure of intellectual coherence by appealing explicitly to a comprehensive moral theory. Such a theory would help explain how the judiciary, functioning as a "forum of principle," (17) may confidently identify and protect welfare rights under the open-textured guarantees of equal protection and due process. (18)

Predictably, Michelman's work has drawn praise from scholars sympathetic to welfare rights (19) and criticism from those opposed to a judicial role in vindicating affirmative rights or economic equality. (20) Yet legal scholars have devoted little attention to Michelman's careful treatment of Rawls's theory not only as a source of substantive content for welfare rights but also as a framework for legitimizing their recognition by the courts. (21) The most sustained critique of Michelman's reading of Rawls occurs in an article by Professor Forbath arguing that Rawls's theory supports a vision of social citizenship whose entailments go beyond welfare rights to include "a right to decent work" as a core element of the social bases of self-respect. (22) But Forbath was not concerned with Michelman's basic claim that Rawls's theory can help legitimize the justiciability of welfare rights. (23) That claim is what I explore here.

Even as Michelman sought to bring coherence to welfare rights jurisprudence, he worried a great deal about the democratic legitimacy of grounding constitutional adjudication in moral theory. The normative thesis I shall advance begins with the contention that his worries were well justified. However alluring it may be to posit that our Constitution embodies substantive moral principles reflecting the terms of a rational if hypothetical consensus, judicial reasoning in this vein faces serious obstacles to gaining broad public acceptance. As Michelman acknowledged, the derivation of welfare rights through philosophical argument from first principles seems unlikely to capture the ways in which our nonideal society actually develops and understands its moral commitments. Our basic commitments to mutual provision are bound to reflect collective judgments that are more contingent, eclectic, and historically and culturally particular than the neat entailments of a comprehensive moral theory. My central claim is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to abstract moral principle but to our society's own understandings of our fundamental values.

In elaborating this thesis, I approach the issue of welfare rights through a novel application of the contrasting theoretical perspective developed by Michael Walzer in Spheres of Justice. (24) Whereas Rawls sought to elucidate transcendent principles of justice for an ideal society, Walzer proposed an account of distributive justice whose requirements take shape through the history, social practices, and shared understandings of a particular society. On Walzer's theory, fairness in the distribution of social goods cannot be...