To promote the general welfare: the republican imperative to enhance citizenship welfare rights.

• Author: Michaels, Jon D.

1. INTRODUCTION

   In the 1960s and 1970s, progressive lawyers and scholars aggressively campaigned to secure the recognition and protection of substantive welfare rights. Invoking welfare as a "new property" right, (1) they pressed the courts to declare affirmative guarantees to entitlements as varied as financial assistance, adequate housing, and education. But despite an early flirtation with recognizing a right to welfare, the Supreme Court ultimately and soundly dismissed the claim that the Constitution protects anything on the order of such a right. (2) The response of legal activists in the wake of this defeat has been muted at best. (3)

   This Note revisits the jurisprudential and conceptual case for substantive welfare rights. Its objective is two-fold: to make sense of the failed attempts (4) to incorporate substantive welfare rights into our constitutional canon and to propose an alternative legal foundation for promoting those rights.

   The history of the substantive welfare rights campaign, I argue, reveals a great flaw in strategy. To be sure, the Court proved willing to expand the traditional conception of property to cover new rights. Under its expanded view of property, the Court recognized privacy rights in the form of inviolable personal autonomy as well as procedural rights in the form of unobstructed access to the courts and polls. It is not, however, surprising that the Court refused to extend similar protection to substantive welfare rights. The line the Court drew was not arbitrary. (5) Privacy and procedural rights comport with the traditional Lockean protections of private property and negative liberties that are deeply embedded in our constitutional order. In contrast, substantive welfare rights are completely anathema to the Lockean tradition. The guarantee of welfare, after all, requires the government to take affirmative steps to redistribute private holdings. It is unimaginable that the Court would have, or would now, embrace an understanding of "new property" that required redistribution, for that would undermine the traditional protections of "old property." (6)

   Substantive welfare rights must then be placed on a more secure theoretical foundation. I argue that such a foundation can be found in the values of civic republicanism that infuse our Constitution and that have only become more resonant as the country has grown more inclusive. (7) Civic participation and political engagement have always been critical concerns, even imperatives, of our republican community. The recent scholarship of the "republican revival" has certainly corroborated this reading of our history. (8) This revival has not yet influenced welfare theory. But it should. We must recognize that individuals lacking the basic socioeconomic resources necessary for effective political engagement cannot approach, let alone meet, our ideal of republican citizenship. Without some base level of education, health care, housing, and financial security, citizens cannot possibly be expected to vote, to deliberate, and to serve on juries as effectively as our system asks and expects. I argue therefore that we must view welfare rights through the lens of civic republicanism. Then we will see that welfare rights should be protected as citizenship rights. (9)

   This Note begins by investigating the circumstances under which property was expanded to cover new rights. Part II examines privacy rights jurisprudence. Part III extends this analysis to procedural rights. Then, in Part IV, I examine the unsuccessful campaign to protect substantive welfare rights as property rights. After describing the failure to incorporate welfare rights on the heels of the more successful battles to secure privacy and procedural rights, I reconceptualize and reconstruct a case for substantive welfare rights in Part V. I hope to locate a foundational justification for these rights within a republican-participatory context. Methodologically, through textual and structural interpretations of our evolving constitutional system, I attempt to erect a constitutional bridge that is synthesized from various participation-reinforcing amendments, sociopolitical movements aimed at promoting civic engagement, and aspirational ideals for community. This constitutional bridge will lead us to recognize the need to consider greater support for affirmative welfare rights as necessities of citizenship. In Part VI, I conclude by briefly considering the possibilities and difficulties associated with recognizing a legislative imperative to operationalize these citizenship welfare rights.

2. PRIVACY AS PROPERTY

   In this Part, I describe briefly how certain privacy rights have been incorporated into our constitutional canon, largely through conceiving those new rights as intimately linked to the sacrosanct rights of property. The progressive effort to protect bodily integrity, focused for our purposes on procreative rights and expressive intimate associations, stems from an older, more conservative effort to ensure the integrity of an individual's physical holdings. In building upon the traditions of property, privacy rights advocates were able to tap into libertarian strands of constitutional thought and, in the process, carve out a greater sphere of personal autonomy and inviolability.

   1. Why Employ a Privacy Analysis?

      I use both privacy and procedural rights as the substantive welfare rights movement's foil. (10) Privacy advocates successfully harnessed liberal property-based arguments to secure constitutional rights to procreative and personal freedoms. By liberal property-based arguments, I mean arguments that invoke those sets of traditions and values inherent in our constitutional system that privilege and protect individuals and their intimate possessions from encroachment or interference. Litigation attempting to secure a constitutional right to substantive welfare rights as property rights, however, proved less successful. (11)

      In effect, privacy and procedural rights are jurisprudential analogues while privacy and substantive welfare rights are jurisprudential opposites. The protection of individual privacy is a process of safeguarding the right to noninterference. It involves the carving out of a negative space into which no one may encroach. The protection of procedural rights follows in a similar vein. The security of substantive welfare rights, on the other hand, requires community engagement and affirmative sacrifices. The community must riot only not interfere, it must actively intervene. (12) The diametrically opposed obligations and impositions that these two sets of rights demand represent, in important ways, the differences between positive and negative rights in our political and constitutional orders.

      A liberal framework of constitutional rights to property protects the private holdings that substantive welfare rights advocates seek, in essence, to redistribute. Thus, the justification for welfare rights that inescapably involve redistribution must emanate from alternative legal concepts and traditions, those we find to be more affirmative: the rights and duties of citizenry embedded in our constitutional system. In situating welfare rights within a democratic, participatory context rather than a property-focused, rights-based context, we can limit the starkness between acts and omissions that is central to the negative rights doctrine of classical liberalism standing in the way of affirmative welfare rights. (13) Thus, while privacy and welfare rights might seem mutually compatible, if we are to draw privacy rights from the strain of the Founding thought centering on property rights--and welfare rights from the inclusive republicanism embedded in our constitutional architecture--we can come to terms with the problems inherent in situating welfare squarely within the liberal tradition, a tradition opposed not only to government takings but also to government redistribution.

      Once we place substantive welfare rights in this alternative constitutional context and establish the inexorable link that makes various welfare rights a necessary condition for full and active participation in public affairs, we can give practical meaning to our republican constitutional norms and rely on their authority to petition legislators to provide the basic resources necessary for meaningful civic engagement.

   2. Understanding Privacy Through the Canon of Neoliberal Property Rights

      There is a nearly a priori connection between Anglo-American social contracts and the inviolate status of property. (14) Locke believed that individuals possessed "a natural right to their property before they entered civil society, and since they entered society to make their property more secure, they can never be understood to have given the magistrate carte blanche to `dispose of it as he thinks good.'" (15) This view occupies a dominant position on the American constitutional horizon, often dominating in fact the redistributive (property-taking) perspective underlying welfare rights. By recognizing the central place of property in the Lockean state and appreciating the liberal elements of our Founding compact, (16) we can easily draw a distinction between libertarian property rights and some types of rights linked to participatory government. To protect those citizenship rights, as discussed in Part V, we must develop a similarly intuitive understanding of civic engagement grounded in our Constitution's republican values.

      The movement from property to privacy in its proto-modern form was motivated in part by Louis Brandeis and Samuel Warren. (17) Incidents of modernity compelled this pair to push the definitional boundaries of protected property beyond the physical and tangible to the more intimate and personal. Brandeis and Warren argued that while in earlier times the law gave remedy only for physical interference with life, liberty, and property, modernity demanded that our...