Welfare and rights before the movement: rights as a language of the state.

AuthorTani, Karen M.
PositionIntroduction through II. Security Through Rights, p.314-346

ARTICLE CONTENTS INTRODUCTION I. THE SOCIAL SECURITY ACT OF 1935: A NEW DEAL FOR POOR RELIEF II. SECURITY THROUGH RIGHTS A. An "Earned Right": Social Insurance B. From Need to Right: Rights Language in Public Assistance Administration III. THE ENDURING PROBLEM OF THE LOCAL IV. TO ADMINISTER PUBLIC ASSISTANCE AS A MATTER OF RIGHT A. Administration by Indirection B. Rights Language in Context C. Rights Language in Administration V. RIGHTS AS A LANGUAGE OF THE STATE A. Rights as Quid Pro Quo? B. Rights as the Language of an Ambitious National State CONCLUSION INTRODUCTION

In the fall of 1960, the leadership of the federal Social Security Administration (1) was in the unenviable position of having to review, and potentially to revoke, a state's multimillion-dollar federal public assistance grant. Louisiana had amended its Aid to Dependent Children (2) plan (3) to, in effect, exclude most illegitimate children. (4) Nearly 23,000 children-the vast majority black--lost their benefits. (5) National outrage ensued. Newspapers chastised Louisiana for its "mean, uncivilized approach." Public welfare and civil rights organizations demanded that the federal agency recognize Louisiana's noncompliance with federal law and hold a formal hearing. (6) News of the scandal reached as far as Northeast England, where concerned councilwomen arranged to airlift baby food into New Orleans. (7)

Louisiana temporarily retreated from its position, cowed by media condemnation and the eventual threat of federal defunding, but the episode was an indictment of the federal agency, which had responded with too little, too late. When the Social Security Administration finally held a hearing, months after learning about the problem, it did not revoke the state's grant. Afterward, states continued to devise ways to reduce and to reconfigure their welfare populations, confident that they could elude federal sanction. The episode was also a lesson for the burgeoning welfare rights movement, which developed alongside these restrictive state laws and drew inspiration from the black freedom movement. (8) It proved, as a bright intern named Bob Cover explained to a welfare rights think tank in 1967, that the federal agency lacked either the will or the tools to protect claimants' rights. (9) Despite knowledge of many potentially illegal state and local welfare practices, the federal agency had entertained only sixteen conformity hearings in the history of the federal-state public assistance arrangement, and had no process for providing individual redress. (10) For purposes of both vindicating existing rights and establishing new ones, the federal agency was a dead end. Cover urged instead a turn toward federal courts, fueling a fire that was already blazing through law schools, community organizations, and neighborhood law offices. (11) Before the decade was out, "poverty lawyers" would be advancing their clients' claims before the highest court in the land. (12)

Had Cover observed the scene just twenty years earlier--before "welfare" became synonymous with black single mothers, before states competed to enact the most restrictive policies, and before public welfare workers commenced treating poverty as a disability to be professionally expunged (13)--his impression of federal welfare administrators would have been different. At that moment, the federal agency's Assistant General Counsel, A. Delafield Smith, was broadcasting to every audience he could find that a right to public assistance, and ancillary rights of fair and equal treatment, were inscribed in positive law. As soon as "Government" took action to assure a means of livelihood for broad classes of needy individuals, "rights and privileges ... accrue[d]," he explained to a conference of fellow federal government attorneys in 1938. (14) One might even conclude, he told the 1939 Annual Meeting of the American Schools of Social Work, that "participation in the public bounty" in time of need had become "a right or privilege" of "citizenship." (15) The message was not limited to experts. For example, after consulting with Smith, one Indiana congressman informed a constituent, concerned about his destitute mother-in-law, that federally subsidized old-age assistance was the woman's legal right; local administrators might hassle her, but she was "entitled" by law to public payments. (16) In short, Smith preached, poor relief was no longer a matter of discretion, as it was under the old poor law; it no longer depended on community understandings of desert or adherence to community norms. It had become a matter of right.

Smith was hardly a voice in the wilderness. Other sources emanating from Smith's agency, such as training guides for local welfare workers, went further. Drafted primarily by professional social workers with the clearance of lawyers, these guides enumerated rights apart from a basic guarantee of income support that, with the creation of federal-state welfare programming, were now established in law. These included the right to submit a formal application for assistance, the right to receive fair treatment, the right to spend support payments freely, and the right to keep private one's reliance on the state. (17) Some agency sources, especially those issued in the wake of World War II, went further still: they declared that poor individuals had not just legal rights but "soci[al]" (18) or "human" (19) rights--rights to the income, the process, and the freedom necessary "to live as participating members of the community." (20)

These sources disrupt the narrative that scholars of U.S. social welfare provision have constructed. According to conventional accounts, policymakers and administrators did their utmost to attach rights rhetoric and rights practices (automatic, fixed benefits linked to minimally invasive procedures) to the new social insurance program, Social Security. At the same time, they deliberately denied those trappings to public assistance, predicting and even hoping that public assistance clients would bear the stigma associated with traditional poor relief. (21) In short, rights language helped construct and maintain a "two-track" welfare state. (22) Not until the welfare rights movement and the high tide of legal liberalism, the standard narrative continues, did Americans use the language of rights to talk about need-based income support. (23) And when they did, federal administrators were not conversant in the dialect. (24)

This Article (25) supports aspects of that account, while also fundamentally revising the story. It demonstrates that in fact, from the late 1930s through the late 1940s, some administrators within the federal social welfare bureaucracy persistently characterized public assistance as a right and its recipients as rights-holders. But they did not direct this rights language (26) at courts or the poor, inviting as that story may be. Rather, this Article argues, government officials targeted the thousands of workers administering public assistance at the ground level, the state and local government employees whom they could not control but who were crucial to making the New Deal public assistance programs a meaningful reform.

As New Deal administrators saw it, these low-level workers were inclined to operate under an old poor law framework, under which those who received public aid were paupers. Paupers, by definition, sacrificed personal liberty, civil and political rights, and reputation in exchange for material support. To borrow the words of citizenship theorist T.H. Marshall, traditional poor relief "treated the claims of the poor, not as an integral part of the rights of the citizen, but as an alternative to them-as claims which could be met only if the claimants ceased to be citizens in any true sense of the word." (27) Federal administrators hoped that by explaining the new public assistance program in rights terms, whether the language of "legal" rights, "citizenship" rights, or "social" rights, they would trigger a shift in the mindset of local welfare workers. (28) Proper administration would follow. In other words, federal administrators did not use rights language to mobilize rights-holders, to demand resources from the state, or to press rights claims in court, as has been the focus of an abundant "rights talk" literature. Rather, they used that language as an administrative tool, a substitute for more formal mechanisms of influencing the myriad administrative decisions occurring on the ground. That is this Article's primary claim.

This Article also advances a second, more theoretical claim: it offers the practices of New Deal-era welfare administrators as an example of how rights language could be useful to the regime of governance that scholars have come to call the modern liberal state. With the distance of time, the character of this regime is clear: it is one of centralized power, dominant national authority, and expansive administrative capacities; it...

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