Jonathan P. Baird

This piece was written in Spring 1985 by my sister, Lisa Baird. Lisa was in her last year at Rutgers (Camden) Law School and she wrote the paper for her American Legal History class. I have carried the essay around with me for years and I have long thought it deserved to see the light of day. October 21 is the 4th anniversary of Lisa’s death. I thought a nice way to remember and honor Lisa would be to share this essay. The points she made 28 years ago still resonate and seem as valid now as they did then, maybe more so. Jon

We are living in a time when the federal government is dramatically decreasing its allocation of funds to social welfare programs which serve poor, as well as in some cases, middle-income Americans. Food Stamps, General Assistance, Aid to Families with Dependent Children (AFDC), Medicaid, Social Security, Supplemental Security Income, Legal Aid and higher education-low interest loans and grants are all examples of government subsidies which have already been cut back or have been targeted for significant reduction in the name of budget balancing.

Public benefit programs such as the ones mentioned above constitute the income – and livelihood – of millions of Americans. Still, the right of citizens to receive these benefits uninterrupted, and to rely on them as a sure means of subsistence is tenuous and constitutionally vulnerable. While public benefit recipients are assured the right to notice and an opportunity to be heard prior to their termination from a benefits program, they are not assured the right to continue receiving benefits despite the fact that those benefits may be the only income available to them at that time. Economic assistance from the government is not a fundamental right guaranteed by the constitution nor do poor people constitute a suspect class. Thus, the legal protection provided to welfare recipients is minimal : the legislature needs simply to show a rational reason for amending or even dissolving a program and the courts will approve the state’s action.

Price v Cohen 715 F. 2d 87 (3rd Cir 1983), a recent Federal case, demonstrates the legal insecurity of social welfare programs. The Pennsylvania legislature amended the state welfare code to exclude as recipients all persons between the ages of eighteen and forty-five except for three months of each year when they were deemed “transitionally needy”. Thus, these people theoretically able to work regardless of the availability of jobs or job training could no longer collect general assistance as a source of income. The Third Circuit Court of Appeals reversed the District Court’s finding and determined that 1) the class of people (between 18 and 45) affected was not a “suspect class” protected by a “strict scrutiny” analysis under the Equal Protection Clause and 2) that the “right to subsistence” (which in this case the court equated withthe right to receive welfare benefits) has neither an explicit or implicit source in the Constitution.

The State’s burden was indeed light in this case. It had only to show a rational basis for its distinction between transitionally needy and chronically needy (those entitled to year round benefits). Rationality is the easiest test to meet in determining constitutionality and simply by invoking the problems of “scarce resources”, the need to create incentives to promote employment and discouraging welfare fraud, the state won its case. Obviously, the fact that the rationality test requires nothing more than stating theoretical justifications for an action without an examination of the factual basis for these justifications made the state’s argument an easy one. The court did not question scarcity of resources, pauperization as employment incentive or the statement in dicta that welfare fraud was most prevalent among the age group affected. Rather, it accepted the reasons and the premises upon which they were made.

The plaintiffs’ burden was conversely very difficult to meet. They could win only by rebutting the rationality of the reasons presented by the state. Rationality is and was shown to be in this case difficult to disprove since it needn’t have any relationship to the truth of the matter asserted. Remarkably enough, thousands of people lost the only money they had to live on because the state was able to assert a plausible rationale for its action which made logical sense, actual sense aside.

This essay is an effort to identify and discuss some of the reasons why economic rights for people with limited or no resources are not guaranteed or secure under the American system of justice. While it is clear that most if not all areas of civil law and criminal law as well serve to protect the wealth of well endowed people, this is not true for people without means. Practiced prudently, contract law, tort law, tax law, corporate law can preserve funds, recover funds or expand funds when resources exist to finance adequate legal representation. Criminal liability attaches when for example embezzlement occurs within a corporation, thus under legally sufficient circumstances, it provides further protection and remedy for those whose wealth is endangered. However, public entitlements have not been deemed personal property nor as mentioned above have poor people been identified as a suspect class. So, the rights which do exist in relation to poor people and benefits (and sometimes services) are procedural and not substantive. That is, the benefits themselves are not guaranteed but a hearing must be granted if the state intends to take them away.

Why are the economic rights of poor people procedural and not substantive? Substantive economic due process is a constitutional doctrine dating back to the era of Reconstruction. In the years following the Civil War, federal judges were faced withe the decision whether to broadly interpret the due process clause to include the right of merchants as in the Slaughterhouse Cases to challenge state-created economic monopolies. Justice Samuel Miller reasoned that neither the 14th Amendment’s privileges and immunities clause, equal protection clause or any due process clause was intended to supply citizens with a constitutional basis to secure economic rights. Miller’s opinion in the Slaughterhouse Cases cited the purpose of the privileges and immunities clause as protecting citizens of the United States in their exercise of fundamental rights as opposed to dictating to the various States what the rights of its own citizens should be. Further, he interpreted the equal protection clause as solely aimed at equalizing the status of Blacks to that of other Americans. Finally, he attached only procedural meaning to the due process clause, following the lead of Judge Taney in Dred Scott v Sanford. Louisiana was therefore able to impose monopolies and limit competition accordingly.

Twenty-seven years later the Supreme Court took a broader look at the 14th Amendment in Lochner v New York when the issue in question was the constitutionality of a New York statute limiting the right of a private employer to contract with a laborer for an excess of sixty hours work in one week. Despite dissents from a number of justices, including Holmes, the Court ruled that the New York statute did impinge upon the constitutional rights of the employer and employee to freely enter into a contractual relationship with one another.

Justice Holmes argued that a state’s infringement on a constitutional liberty must be judged on an ad hoc basis and weighed against the seriousness and validity of the legislature’s purpose in passing the statute in question. He cautioned against an approach which would blanketly pave the way for federal interference with state sovereignty or, conversely, elevate the power of a state legislature beyond the reach of rational, well-founded objection.

The doctrine of substantive economic due process conferred rather broad rights of economic freedom and autonomy on individual citizens. It should be noted however, that as it was articulated in (although not recognized) in the Slaughterhouse Cases and later recognized in the Lochner case, it was a doctrine which supported the laissez-faire ethic of non-regulation aimed at profit maximization. Like its cousin, procedural due process, substantive due process did not become a legal weapon of the poor and property-less, although there is no indication in any of the key substantive due process cases that it could not have doctrinally supported poor people’s entitlements.

In the modern legal era, the doctrine of substantive due process has been largely eroded and the United States Supreme Court has specifically contradicted the notion “that the due process clause authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely”. See Ferguson v Skrupa 372 U.S. 726 (1963) Presently citizens who wish to contest the unconstitutional effect of a state law rely on other doctrines to do so. If the challenge is procedural in nature, the objection can be framed under the due process clause.

If the situation involves discrimination against a class of people, the outcome most surely depends on the nature of the discrimination alleged and what level of scrutiny the court attaches to an injury to the class in question. As we saw in Price v Cohen , a category of persons who shared in common both a designated range of age and an impoverished economic status triggered a minimal level of constitutional scrutiny, not enough to strike down the law.

Poor people and their advocates are thus left with huge gaps in constitutional doctrine that can be used to safeguard and extend their economic rights.

This essay began by identifying the problem of the lack of economic rights for poor people as well as the lack of legal doctrine in American law to support these rights. There are a number of ways to consider this problem in an effort to begin to unravel its origin and meaning. In the following section of this paper, I will propose various tensions present in American legal history which may help to shed light on the issue of poor people’s economic rights.

Natural Rights vs Positive Rights

Do poor people have a “natural right” to subsistence income? Has such a natural right been recognized in American jurisprudence? The United States Constitution codified natural rights and protected those rights, particularly after the passage of the 14th Amendment. Positive rights embodied in statutes passed by legislatures at times conflict with natural rights when positive law is seen as infringing upon natural law. Seen from the perspective of John Marshall concerned as he was with the tension between the two sources of law, the existence of natural rights provided a context in which government sometimes had to limit and regulate in order for other rights to be protected. The social contract whereby citizens consented to be governed enabled government when necessary to limit individual liberty.

The right to economic well-being was not however deemed a natural right. While “vested property rights” and the right to contract were identified by Marshall as falling within the realm of natural rights, the right to some semblance of a secure income did not. The welfare system finds its source in positive law created by legislatures and because this is the state, legislatures are likewise empowered to amend or rescind the system. This was evidenced by the Pennsylvania legislature’s amendment of the welfare law which gave rise to Price v Cohen .

Judicial Action vs Legislative Action

Judicial review of state legislative actions is an idea which was further articulated and clarified when John Marshall decided McCulloch v Maryland . In the case of Price v Cohen however, the judiciary found no constitutional defect in the statute. Here, the legislature took rights away from the poor and the court determined after review that it had been within its rights to do so. It is interesting to note that the District Court which decided the case favorably for the plaintiffs did so in part on the basis of evidence presented in the trial alleging that age had no relation to employability. The Third Circuit ruled that although the District Court was the fact finder in this case, it was not “authorized” to “resolve conflicts in the evidence against the legislature’s conclusions”.

This approach seems to give the upper hand to legislatures where a court is reviewing controversial legislative determinations about which there’s been some dispute. It suggests that the only facts which the court may find are those which have not been part of the rationale for the legislation in the first place. It is “speculation”, says the Third Circuit to disagree with a legislative conclusion. Thus, the Circuit Court gave complete deference to the legislative process, disregarding the possibility that perhaps factual errors were made and relied upon during the debate and enactment of the statute in the legislature. The power and sovereignty of the legislature in Price was indeed a stumbling block to the plaintiffs’ recovering their benefits.

Federalism

Another way of looking at the problem of the lack of economic rights is the conflict between state sovereignty and federal power i.e. federalism. This approach isn’t entirely satisfying in that we lack a nice, neat polarized situation where state power comes down on the side of limiting or abolishing welfare programs and the federal courts rise to those program’s defense. As stated earlier, much in the way of welfare monies is the result of state legislative action but the power of the federal courts lies in their ability to police the constitutionality of legislative action.

As we have seen in Price , the court found that depriving persons between 18 and 45 of welfare benefits was constitutional. The check of the judicial branch of government over the legislative branch amounted to review and consent by the court. Hypothesizing a scenario where the legislature rescinds a welfare statute entirely so that no one is entitled to benefits any longer, one questions what then would be the action of the court. Would there be a successful, constitutional challenge? It is clear that the federalist system allows the state to act relatively freely in accord with its own stated aims and resources. The check of constitutional scrutiny is we have learned not necessarily a safeguard against sweeping legislative action which brings grave results to the health and well-being of many citizens. Since constitutional doctrine will not support poor people’s economic rights, poor people have a tremendous stake in the quality and political and social outlook of their state legislatures. Herein, the system of federalism could theoretically be of service.

Law vs Politics

Legislatures are composed of elected representatives who achieve their status through some combination of money, contacts, ability and fate. Party politics and the interest of self preservation play big roles in how legislators vote on bills presented to them. Since we have noted that constitutional law does not guarantee economic rights for the poor, the politics and priorities of legislatures holds special importance. Legislatures can and have passed laws which have been profoundly beneficial to the health and well being of indigent people just as they have done the opposite. But they function in the political realm. They are flighty, swayed by monetary interests, seeking re-election and often unreliable. Can state legislatures be a reliable ally of the poor? Here the key word is reliable and because of their transient and political nature, the answer is doubtful.

Individualism vs Collectivism

We are left with the perplexing question of why the value of collective well being is not fundamentally a part of our system of justice. We have seen that legislatures cannot be either the guardian or defender of the poor. And we have likewise seen that there is no constitutional mandate to provide for those in need. The conflicts mentioned on previous pages play themselves out with no affirmative duty on the part of any branch of government to provide for those in need. In fact, the basest interpretation of welfare laws is that they are a gratuitous gesture which can be done away with when other fiscal demands arise.

Why doesn’t our system of justice value the collective good? The Preamble of the Constitution does state that the People, among other things “…in order to form a more perfect Union, …promote the general welfare”. But “general welfare” has not come to mean guarding against hunger or starvation. The 14th Amendment prohibits states from depriving any person of life, liberty or property without due process of law but we have seen that due process has not thus far evolved into a doctrine that guarantees more than procedural fairness. Here, the interest of collectivism, embodied by the state law limiting work hours per week, gave way to the interest of individualism and the unfettered right to contract.

Perhaps now the deprivation of life without due process is becoming more substantive-oriented as courts more frequently intervene to order medical treatment and prevent death of severely and hopelessly retarded infants. Still, the value of life for groups of people as measured by the value attached to the right to subsistence for poor people has not been given protection by the courts under the due process clause. To the extent that the law addresses the collective good, it does so in the context of enhancing the environment, making the system run smoothly and promoting pluralism in the interest of harmony and production.

The American preference for and preoccupation with the individual, his/her opportunities, mobility, liberty over an interest in social welfare is an historical and legal reality. In a world where individual liberty is the highest ideal and the test of good government has often been its ability to maximize individual freedom, it is not surprising that collective freedom has come to imply only the freedom of a collection of individuals. The answer is in part rooted in capitalist ideology, in part in the pragmatism implicit in that ideology, in part in the way the law has evolved to reflect the values of the system it represents and supports.

Perhaps the closest we have come to the promotion of economic rights for poor people was during the era of the National Welfare Rights movement. The movement took hold in the mid 1960’s becoming institutionalized and in decline by 1980. It explicitly attacked the ideology which equated welfare with individual failings and lack of initiative. Rather, the welfare rights movement and organizations sought to popularize why poor people had a right to welfare: lack of jobs, lack of job training, barriers of racial and sexual discrimination. The movement demanded adequate welfare subsidies at the same time it demanded jobs. It was the cry for social reform from those who needed it to survive. Welfare activists demanded income as a right to which they were entitled. Contrast this point of view with that of political leaders in history who advocated welfare benefits as a means of social control or with courts who have recognized no constitutional right to receive benefits for the purpose of relieving poverty.

The current reversals of that era underscore the problem of a lack of American legal doctrine and political ideology to support and safeguard economic well being for all. Until that doctrine is developed and recognized, poor people and their advocates must continue to use the many legal and political tools available to them. As the courts narrow their interpretations of the U.S. Constitution, we move farther away from the hope that the law will develop in the direction of affirming and feeding rather than depriving and casting out.