When government must pay: compensating rights and the constitution.

AuthorAgran, Kenneth


In November 1993, Republican political consultant Ed Rollins, the architect of President Reagan's 1984 landslide re-election victory, had good reason to gloat after his latest political triumph. He'd just guided Christine Todd Whitman to a remarkable victory over incumbent Democrat Jim Florio in New Jersey's gubernatorial race. Speaking to journalists in Washington, D.C., after the election, Rollins confessed that the key to Whitman's victory was a secret plan to suppress the black vote by funneling about $500,000 to black ministers and Democratic organizers to minimize or stop get-out-the-vote efforts on behalf of Governor Florio. As Rollins put it: "We went into the black churches and basically said to ministers who had endorsed Florio: 'Do you have a special project [in need of financial support]? We see you have already endorsed Florio. That's fine, but don't get up in the Sunday pulpit and preach. Don't get up there and say it's your moral obligation to vote on Tuesday, to vote for Jim Florio.'" (2) Rollins added that the Whitman campaign had also approached workers for black mayors who were unhappy with Florio and said: "How much have they paid you to do your normal duty? We'll match it. Go home, sit and watch television." (3) The result, Rollins reported: "I think to a certain extent we suppressed their votes." (4)

The Whitman campaign immediately denied Rollins's claims, and Rollins himself later recanted: "I went too far. My remarks left the impression of something that was not true and did not occur." (5) A federal grand jury investigated the matter, but it ultimately concluded that there was no evidence to back up the tale. (6)

The Rollins story provoked understandable outrage. Under federal law and the laws of all 50 states, it is illegal to buy or sell votes. (7) As a corollary to this general proscription, it is also generally illegal to pay someone not to vote. (8) The right to vote is, after all, a cherished freedom--and a fundamental right central to constitutional democracy--that should not be available for purchase or sale in the marketplace. (9) As a legal and philosophical matter, the right to vote is inalienable along with the rights to "life, liberty, and the pursuit of happiness" that Thomas Jefferson described so eloquently in the Declaration of Independence. (10)

Now imagine for a moment that it was not a political candidate--a private citizen--who allegedly paid people not to vote, but instead a government official or a government agency. Suppose, for example, that California's Franchise Tax Board, fearful that a high voter turnout will overwhelm the state's outdated election machinery, begins offering a $50 tax credit to every Californian over the age of 18 who refrains from voting in an upcoming election. Such a policy would not only be illegal; (11) it would almost certainly be unconstitutional. Just as state and local governments may not impose a poll tax, (12) so too government may not offer a financial incentive to induce people not to vote because such an incentive functions in precisely the same way as a poll tax: It makes voting more costly relative to not voting. (13)

Now consider the more controversial issue of abortion. If it is unconstitutional for government to offer its citizens a financial incentive not to vote, shouldn't it be similarly unconstitutional for government to offer women a financial incentive not to procure an abortion? Somewhat surprisingly, the answer is no. Consistent with the Supreme Court's decisions in Maher v. Roe (14) and Harris v. McRae, (15) federal and state governments can--and do--offer poor pregnant women such financial incentives through the Medicaid program by subsidizing medical expenses incident to pregnancy and childbirth while denying coverage for medical services related to abortion.

Maher and McRae have provoked intense criticism because they sanction government programs that appear to undermine Roe v. Wade (16) by inducing poor pregnant women to bear children that they might otherwise choose not to have. (17) Maher and McRae effectively transform abortion--a liberty protected by the fundamental right to privacy--into a commodity, available only to those who can afford it. (18) This result is morally and legally indefensible to those who believe that if a fundamental right is "implicit in the concept of ordered liberty," (19) or "deeply rooted in this Nation's history and tradition," (20) then government ought to provide affirmative assistance to guarantee access to that right, regardless of ability to pay.

For years, constitutional scholars and the Supreme Court itself have struggled to define the circumstances under which government must affirmatively guarantee constitutional rights for the poor. These attempts have been largely unsuccessful. They have been either too ambitious, relying on theories that have proven to be judicially unmanageable and unacceptable, or too limited in their scope and reach, relying on theories that are explanatory but not prescriptive. I hope to provide a fresh perspective on the problem, along with a better framework with which to evaluate claims that government must provide affirmative assistance to the poor to ensure access to constitutional rights.

Part I of this Article analyzes a series of Supreme Court decisions--the "equal access" cases--that provide a constitutional basis for the notion that government must affirmatively guarantee constitutional rights for the poor. Part II contends that these decisions are often described either far too broadly, in terms of equal protection for the poor, or far too narrowly, in terms of a fundamental right of access to the courts or the political process. I suggest an alternative approach. The equal access cases may best be understood as recognizing a category of "compensating rights," in which government's obligation to affirmatively guarantee certain constitutional rights is designed to compensate for government coercion that burdens those rights. Part II then explores the theory of compensating rights in some detail, considering basic questions such as which rights and what degree of coercion should trigger government's duty to compensate. Finally, Part III applies the theory of compensating rights to the abortion funding decisions in Maher v. Roe and Harris v. McRae. Just as the equal access cases require the government to compensate for coercive financial barriers that threaten to deny access to the courts or the political process, so too government must compensate for the coercive pressure designed to persuade poor women to choose childbirth over abortion.


    One of the chief analytical tools of constitutional interpretation is the basic distinction between positive and negative rights. The conventional thinking is that the Constitution confers no positive right to governmental aid or assistance; instead, the Constitution operates in a negative fashion, preventing the government from abridging certain rights or freedoms. It is often said that the Bill of Rights guarantees freedom from government interference, not a right to governmental assistance. As the Supreme Court explained in DeShaney v. Winnebago County Department of Social Services: (21)

    The [Due Process] Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.... Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even when such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. (22) While the distinction between positive and negative rights offers a useful guideline for constitutional interpretation and allows the courts to quickly and easily dispose of dubious claims to various constitutional "entitlements," it ignores a long line of decisions that challenge the conventional wisdom and blur the distinction between positive and negative rights. Fifty years in the making, these decisions recognize that constitutional rights are meaningless without the economic resources to enjoy them and that under certain circumstances, government must bear the costs of securing access to such rights for poor individuals otherwise unable to pay.

    In Griffin v. Illinois, (23) the Supreme Court held that the Fourteenth Amendment's guarantees of equal protection and due process required a state to provide a trial transcript at its own expense to an indigent convict who could not otherwise effectively take advantage of the right to an appeal--a right which Illinois made generally available to all who could afford it: "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." (24) For the first time, the Supreme Court seriously wrestled with Anatole France's challenge to the value of a guarantee of legal equality in the face of economic inequality: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." (25) The Supreme Court apparently agreed that when a poor man's liberty was at stake, the Constitution required that the courthouse doors be open to him, even if the state must bear the cost.

    Seven years later, in Gideon v. Wainwright, (26) the Supreme Court dramatically extended Griffin's reach, unanimously holding that in a state prosecution involving the possibility of a substantial prison...

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