"Let me next time be 'tried by fire'": Disaster relief and the origins of the American welfare state 1789-1874

Northwestern University Law Review

Volumn 92, Issue 3, 1998, Pages 967-1001

  Landis, Michele L ^a  

^a NONE

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EID: 0009144347     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (248)

1. 3 CONG. DEB. 754 (1827) (statement of Rep. Herrick) (quoting from speech of Isaac Pool).
2. See COMM. ON CLAIMS, REPORT ON THE PETITION OF ISAAC POOL, H.R. REP. NO. 18-2, at 3 (1824) (letter from Isaac Pool to U.S. Congress).
3. See 2 CONG. DEB. 1763 (1826).
4. See H.R. REP. NO. 18-2, at 3.
5. See id. at 4-5.
6. See id. at 5.
7. See id.; H.R. REP. NO. 19-37, at 1 (1826).
8. See H.R. REP. NO. 18-2, at 4.
9. H.R. REP. NO. 19-37, at 2.
10. See H.R. REP. NO. 18-2.
11. See id. at 4.
12. See H.R. REP. NO. 19-37.
13. See id.
14. See 2 CONG. DEB. 1764 (1826).
15. See id.
16. Id. at 1763.
17. See id. at 754.
18. See id. at 747.
19. See id. at 752.
20. See id. at 754.
21. See An Act for the relief of indigent sufferers by the fire at Alexandria, ch. 3, 6 Stat. 356 (1827). It may be tempting to account for this disparate treatment with reference to the fact that Alexandria residents constituted a geographic "interest group" while Pool did not. See Saul Levmore, Coalitions and Quakes: Disaster Relief and Its Prevention, 3 U. CHI. ROUNDTABLE 1, 4-6 (1996). However, interest group theory does not offer much assistance in understanding the mechanism by which Congress distinguishes among highly similar claims for disaster relief. Many geographically discrete and well-organized groups were denied relief while hundreds of individuals received assistance during this period. See, e.g., An Act for the Relief of Joseph Forrest, ch. 34, 6 Stat. 323 (1825) (indemnifying loss of schooner); H.R. REP. NO. 15-177, at 1 (1818) (requesting relief due to distress caused by the War of 1812 for the residents of the Niagara frontier). See also infra notes 102-11 and accompanying text.
22. See, e.g., THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 4-10 (1992).
23. See id. at 102-50; Barbara J. Nelson, The Gender, Race, and Class Origins of Early Welfare Policy and the Welfare State: A Comparison of Workmen's Compensation and Mothers' Aid, in WOMEN, POLITICS, AND CHANGE 413-17 (Louise H. Tilly & Patricia Gurin eds., 1990). Recently, Laura Jensen extended the reach of this line of scholarship by examining the history of federal pensions for Revolutionary War veterans. Jensen concludes that Congress adopted a policy of "selective entitlement" in which claimants were distinguished by their moral worth relative to others. See Laura S. Jensen, The Early American Origins of Entitlements, 10 STUD. AM. POL. DEV. 364-65 (1996).
24. See id. at 102-50; Barbara J. Nelson, The Gender, Race, and Class Origins of Early Welfare Policy and the Welfare State: A Comparison of Workmen's Compensation and Mothers' Aid, in WOMEN, POLITICS, AND CHANGE 413-17 (Louise H. Tilly & Patricia Gurin eds., 1990). Recently, Laura Jensen extended the reach of this line of scholarship by examining the history of federal pensions for Revolutionary War veterans. Jensen concludes that Congress adopted a policy of "selective entitlement" in which claimants were distinguished by their moral worth relative to others. See Laura S. Jensen, The Early American Origins of Entitlements, 10 STUD. AM. POL. DEV. 364-65 (1996).
25. See id. at 102-50; Barbara J. Nelson, The Gender, Race, and Class Origins of Early Welfare Policy and the Welfare State: A Comparison of Workmen's Compensation and Mothers' Aid, in WOMEN, POLITICS, AND CHANGE 413-17 (Louise H. Tilly & Patricia Gurin eds., 1990). Recently, Laura Jensen extended the reach of this line of scholarship by examining the history of federal pensions for Revolutionary War veterans. Jensen concludes that Congress adopted a policy of "selective entitlement" in which claimants were distinguished by their moral worth relative to others. See Laura S. Jensen, The Early American Origins of Entitlements, 10 STUD. AM. POL. DEV. 364-65 (1996).
26. It may be that scholars of the American welfare state, in focusing upon the role of class as the primary explanation for the relative generosity of national pension systems, have overlooked the underlying structure of disaster-based relief. See, e.g., ANNA SHOLA ORLOFF, THE POLITICS OF PENSIONS: A COMPARATIVE ANALYSIS OF BRITAIN, CANADA, AND THE UNITED STATES, 1880-1940 (1993); SKOCPOL, supra note 22; Edwin Amenta & Theda Skocpol, Taking Exception: Explaining the Distinctiveness of American Public Policies in the Last Century, in THE COMPARATIVE HISTORY OF PUBLIC POLICY 292-333 (Frances G. Castles ed., 1989); Theda Skocpol & John Ikenberry, The Political Formation of the American Welfare State in Historical and Comparative Perspective, in 6 COMPARATIVE SOCIAL RESEARCH: THE WELFARE STATE 87-148 (Richard F. Tomasson ed., 1983).
27. It may be that scholars of the American welfare state, in focusing upon the role of class as the primary explanation for the relative generosity of national pension systems, have overlooked the underlying structure of disaster-based relief. See, e.g., ANNA SHOLA ORLOFF, THE POLITICS OF PENSIONS: A COMPARATIVE ANALYSIS OF BRITAIN, CANADA, AND THE UNITED STATES, 1880-1940 (1993); SKOCPOL, supra note 22; Edwin Amenta & Theda Skocpol, Taking Exception: Explaining the Distinctiveness of American Public Policies in the Last Century, in THE COMPARATIVE HISTORY OF PUBLIC POLICY 292-333 (Frances G. Castles ed., 1989); Theda Skocpol & John Ikenberry, The Political Formation of the American Welfare State in Historical and Comparative Perspective, in 6 COMPARATIVE SOCIAL RESEARCH: THE WELFARE STATE 87-148 (Richard F. Tomasson ed., 1983).
28. It may be that scholars of the American welfare state, in focusing upon the role of class as the primary explanation for the relative generosity of national pension systems, have overlooked the underlying structure of disaster-based relief. See, e.g., ANNA SHOLA ORLOFF, THE POLITICS OF PENSIONS: A COMPARATIVE ANALYSIS OF BRITAIN, CANADA, AND THE UNITED STATES, 1880-1940 (1993); SKOCPOL, supra note 22; Edwin Amenta & Theda Skocpol, Taking Exception: Explaining the Distinctiveness of American Public Policies in the Last Century, in THE COMPARATIVE HISTORY OF PUBLIC POLICY 292-333 (Frances G. Castles ed., 1989); Theda Skocpol & John Ikenberry, The Political Formation of the American Welfare State in Historical and Comparative Perspective, in 6 COMPARATIVE SOCIAL RESEARCH: THE WELFARE STATE 87-148 (Richard F. Tomasson ed., 1983).
29. BILL CLINTON & AL GORE, PUTTING PEOPLE FIRST 165 (1992). This campaign promise was widely reported and alternately welcomed and criticized. See, e.g., And Now, Welfare Reform, WASH. POST, June 12, 1994, at C6; Harry Berkowitz, Ready, Set, Attack: First GOP Ads Criticize Clinton's Policies, NEWSDAY, Apr. 9, 1996, at A19.
30. BILL CLINTON & AL GORE, PUTTING PEOPLE FIRST 165 (1992). This campaign promise was widely reported and alternately welcomed and criticized. See, e.g., And Now, Welfare Reform, WASH. POST, June 12, 1994, at C6; Harry Berkowitz, Ready, Set, Attack: First GOP Ads Criticize Clinton's Policies, NEWSDAY, Apr. 9, 1996, at A19.
31. BILL CLINTON & AL GORE, PUTTING PEOPLE FIRST 165 (1992). This campaign promise was widely reported and alternately welcomed and criticized. See, e.g., And Now, Welfare Reform, WASH. POST, June 12, 1994, at C6; Harry Berkowitz, Ready, Set, Attack: First GOP Ads Criticize Clinton's Policies, NEWSDAY, Apr. 9, 1996, at A19.
32. See Mark N. Aaronson, Scapegoating the Poor: Welfare Reform All Over Again and the Undermining of Democratic Citizenship, 7 HASTINGS WOMEN'S L.J. 213, 228-51 (1996); Catherine R. Albiston & Laura Beth Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473 (1995); Laura Beth Nielson, What's Not So New About Welfare Reform, 10 BERKELEY WOMEN'S L.J. 163 (1995); Lucie E. White, On the "Consensus" to End Welfare: Where are the Women's Voices?, 26 CONN. L. REV. 843 (1994); Lucie White, Searching for the Logic Behind Welfare Reform, 6 U.C.L.A. WOMEN'S L.J. 427 (1996); Lou Cannon, Clinton Again Sacrifices Principle to Politics With Welfare Bill, SEATTLE POST-INTELLIGENCER, Aug. 5, 1996, at A5; Don't Call it Reform, COURIER-J. (Louisville, KY), July 26, 1996, at 10A; Bob Herbert, Welfare Reform Brutalizes Poor, N.Y. TIMES, July 26, 1996, at A26; Michele Landis, The End of Compassion as We Know It, LEGAL TIMES, Aug. 5, 1996, at 21; Frances Fox Piven, The System is Not the Source, Opinion, N.Y. TIMES, Aug. 8, 1996, at A16.
33. See Mark N. Aaronson, Scapegoating the Poor: Welfare Reform All Over Again and the Undermining of Democratic Citizenship, 7 HASTINGS WOMEN'S L.J. 213, 228-51 (1996); Catherine R. Albiston & Laura Beth Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473 (1995); Laura Beth Nielson, What's Not So New About Welfare Reform, 10 BERKELEY WOMEN'S L.J. 163 (1995); Lucie E. White, On the "Consensus" to End Welfare: Where are the Women's Voices?, 26 CONN. L. REV. 843 (1994); Lucie White, Searching for the Logic Behind Welfare Reform, 6 U.C.L.A. WOMEN'S L.J. 427 (1996); Lou Cannon, Clinton Again Sacrifices Principle to Politics With Welfare Bill, SEATTLE POST-INTELLIGENCER, Aug. 5, 1996, at A5; Don't Call it Reform, COURIER-J. (Louisville, KY), July 26, 1996, at 10A; Bob Herbert, Welfare Reform Brutalizes Poor, N.Y. TIMES, July 26, 1996, at A26; Michele Landis, The End of Compassion as We Know It, LEGAL TIMES, Aug. 5, 1996, at 21; Frances Fox Piven, The System is Not the Source, Opinion, N.Y. TIMES, Aug. 8, 1996, at A16.
34. See Mark N. Aaronson, Scapegoating the Poor: Welfare Reform All Over Again and the Undermining of Democratic Citizenship, 7 HASTINGS WOMEN'S L.J. 213, 228-51 (1996); Catherine R. Albiston & Laura Beth Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473 (1995); Laura Beth Nielson, What's Not So New About Welfare Reform, 10 BERKELEY WOMEN'S L.J. 163 (1995); Lucie E. White, On the "Consensus" to End Welfare: Where are the Women's Voices?, 26 CONN. L. REV. 843 (1994); Lucie White, Searching for the Logic Behind Welfare Reform, 6 U.C.L.A. WOMEN'S L.J. 427 (1996); Lou Cannon, Clinton Again Sacrifices Principle to Politics With Welfare Bill, SEATTLE POST-INTELLIGENCER, Aug. 5, 1996, at A5; Don't Call it Reform, COURIER-J. (Louisville, KY), July 26, 1996, at 10A; Bob Herbert, Welfare Reform Brutalizes Poor, N.Y. TIMES, July 26, 1996, at A26; Michele Landis, The End of Compassion as We Know It, LEGAL TIMES, Aug. 5, 1996, at 21; Frances Fox Piven, The System is Not the Source, Opinion, N.Y. TIMES, Aug. 8, 1996, at A16.
35. See Mark N. Aaronson, Scapegoating the Poor: Welfare Reform All Over Again and the Undermining of Democratic Citizenship, 7 HASTINGS WOMEN'S L.J. 213, 228-51 (1996); Catherine R. Albiston & Laura Beth Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473 (1995); Laura Beth Nielson, What's Not So New About Welfare Reform, 10 BERKELEY WOMEN'S L.J. 163 (1995); Lucie E. White, On the "Consensus" to End Welfare: Where are the Women's Voices?, 26 CONN. L. REV. 843 (1994); Lucie White, Searching for the Logic Behind Welfare Reform, 6 U.C.L.A. WOMEN'S L.J. 427 (1996); Lou Cannon, Clinton Again Sacrifices Principle to Politics With Welfare Bill, SEATTLE POST-INTELLIGENCER, Aug. 5, 1996, at A5; Don't Call it Reform, COURIER-J. (Louisville, KY), July 26, 1996, at 10A; Bob Herbert, Welfare Reform Brutalizes Poor, N.Y. TIMES, July 26, 1996, at A26; Michele Landis, The End of Compassion as We Know It, LEGAL TIMES, Aug. 5, 1996, at 21; Frances Fox Piven, The System is Not the Source, Opinion, N.Y. TIMES, Aug. 8, 1996, at A16.
36. See Mark N. Aaronson, Scapegoating the Poor: Welfare Reform All Over Again and the Undermining of Democratic Citizenship, 7 HASTINGS WOMEN'S L.J. 213, 228-51 (1996); Catherine R. Albiston & Laura Beth Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473 (1995); Laura Beth Nielson, What's Not So New About Welfare Reform, 10 BERKELEY WOMEN'S L.J. 163 (1995); Lucie E. White, On the "Consensus" to End Welfare: Where are the Women's Voices?, 26 CONN. L. REV. 843 (1994); Lucie White, Searching for the Logic Behind Welfare Reform, 6 U.C.L.A. WOMEN'S L.J. 427 (1996); Lou Cannon, Clinton Again Sacrifices Principle to Politics With Welfare Bill, SEATTLE POST-INTELLIGENCER, Aug. 5, 1996, at A5; Don't Call it Reform, COURIER-J. (Louisville, KY), July 26, 1996, at 10A; Bob Herbert, Welfare Reform Brutalizes Poor, N.Y. TIMES, July 26, 1996, at A26; Michele Landis, The End of Compassion as We Know It, LEGAL TIMES, Aug. 5, 1996, at 21; Frances Fox Piven, The System is Not the Source, Opinion, N.Y. TIMES, Aug. 8, 1996, at A16.
37. See Mark N. Aaronson, Scapegoating the Poor: Welfare Reform All Over Again and the Undermining of Democratic Citizenship, 7 HASTINGS WOMEN'S L.J. 213, 228-51 (1996); Catherine R. Albiston & Laura Beth Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473 (1995); Laura Beth Nielson, What's Not So New About Welfare Reform, 10 BERKELEY WOMEN'S L.J. 163 (1995); Lucie E. White, On the "Consensus" to End Welfare: Where are the Women's Voices?, 26 CONN. L. REV. 843 (1994); Lucie White, Searching for the Logic Behind Welfare Reform, 6 U.C.L.A. WOMEN'S L.J. 427 (1996); Lou Cannon, Clinton Again Sacrifices Principle to Politics With Welfare Bill, SEATTLE POST-INTELLIGENCER, Aug. 5, 1996, at A5; Don't Call it Reform, COURIER-J. (Louisville, KY), July 26, 1996, at 10A; Bob Herbert, Welfare Reform Brutalizes Poor, N.Y. TIMES, July 26, 1996, at A26; Michele Landis, The End of Compassion as We Know It, LEGAL TIMES, Aug. 5, 1996, at 21; Frances Fox Piven, The System is Not the Source, Opinion, N.Y. TIMES, Aug. 8, 1996, at A16.
38. See Mark N. Aaronson, Scapegoating the Poor: Welfare Reform All Over Again and the Undermining of Democratic Citizenship, 7 HASTINGS WOMEN'S L.J. 213, 228-51 (1996); Catherine R. Albiston & Laura Beth Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473 (1995); Laura Beth Nielson, What's Not So New About Welfare Reform, 10 BERKELEY WOMEN'S L.J. 163 (1995); Lucie E. White, On the "Consensus" to End Welfare: Where are the Women's Voices?, 26 CONN. L. REV. 843 (1994); Lucie White, Searching for the Logic Behind Welfare Reform, 6 U.C.L.A. WOMEN'S L.J. 427 (1996); Lou Cannon, Clinton Again Sacrifices Principle to Politics With Welfare Bill, SEATTLE POST-INTELLIGENCER, Aug. 5, 1996, at A5; Don't Call it Reform, COURIER-J. (Louisville, KY), July 26, 1996, at 10A; Bob Herbert, Welfare Reform Brutalizes Poor, N.Y. TIMES, July 26, 1996, at A26; Michele Landis, The End of Compassion as We Know It, LEGAL TIMES, Aug. 5, 1996, at 21; Frances Fox Piven, The System is Not the Source, Opinion, N.Y. TIMES, Aug. 8, 1996, at A16.
39. See Mark N. Aaronson, Scapegoating the Poor: Welfare Reform All Over Again and the Undermining of Democratic Citizenship, 7 HASTINGS WOMEN'S L.J. 213, 228-51 (1996); Catherine R. Albiston & Laura Beth Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473 (1995); Laura Beth Nielson, What's Not So New About Welfare Reform, 10 BERKELEY WOMEN'S L.J. 163 (1995); Lucie E. White, On the "Consensus" to End Welfare: Where are the Women's Voices?, 26 CONN. L. REV. 843 (1994); Lucie White, Searching for the Logic Behind Welfare Reform, 6 U.C.L.A. WOMEN'S L.J. 427 (1996); Lou Cannon, Clinton Again Sacrifices Principle to Politics With Welfare Bill, SEATTLE POST-INTELLIGENCER, Aug. 5, 1996, at A5; Don't Call it Reform, COURIER-J. (Louisville, KY), July 26, 1996, at 10A; Bob Herbert, Welfare Reform Brutalizes Poor, N.Y. TIMES, July 26, 1996, at A26; Michele Landis, The End of Compassion as We Know It, LEGAL TIMES, Aug. 5, 1996, at 21; Frances Fox Piven, The System is Not the Source, Opinion, N.Y. TIMES, Aug. 8, 1996, at A16.
40. See Mark N. Aaronson, Scapegoating the Poor: Welfare Reform All Over Again and the Undermining of Democratic Citizenship, 7 HASTINGS WOMEN'S L.J. 213, 228-51 (1996); Catherine R. Albiston & Laura Beth Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473 (1995); Laura Beth Nielson, What's Not So New About Welfare Reform, 10 BERKELEY WOMEN'S L.J. 163 (1995); Lucie E. White, On the "Consensus" to End Welfare: Where are the Women's Voices?, 26 CONN. L. REV. 843 (1994); Lucie White, Searching for the Logic Behind Welfare Reform, 6 U.C.L.A. WOMEN'S L.J. 427 (1996); Lou Cannon, Clinton Again Sacrifices Principle to Politics With Welfare Bill, SEATTLE POST-INTELLIGENCER, Aug. 5, 1996, at A5; Don't Call it Reform, COURIER-J. (Louisville, KY), July 26, 1996, at 10A; Bob Herbert, Welfare Reform Brutalizes Poor, N.Y. TIMES, July 26, 1996, at A26; Michele Landis, The End of Compassion as We Know It, LEGAL TIMES, Aug. 5, 1996, at 21; Frances Fox Piven, The System is Not the Source, Opinion, N.Y. TIMES, Aug. 8, 1996, at A16.
41. See Mark N. Aaronson, Scapegoating the Poor: Welfare Reform All Over Again and the Undermining of Democratic Citizenship, 7 HASTINGS WOMEN'S L.J. 213, 228-51 (1996); Catherine R. Albiston & Laura Beth Nielsen, Welfare Queens and Other Fairy Tales: Welfare Reform and Unconstitutional Reproductive Controls, 38 HOW. L.J. 473 (1995); Laura Beth Nielson, What's Not So New About Welfare Reform, 10 BERKELEY WOMEN'S L.J. 163 (1995); Lucie E. White, On the "Consensus" to End Welfare: Where are the Women's Voices?, 26 CONN. L. REV. 843 (1994); Lucie White, Searching for the Logic Behind Welfare Reform, 6 U.C.L.A. WOMEN'S L.J. 427 (1996); Lou Cannon, Clinton Again Sacrifices Principle to Politics With Welfare Bill, SEATTLE POST-INTELLIGENCER, Aug. 5, 1996, at A5; Don't Call it Reform, COURIER-J. (Louisville, KY), July 26, 1996, at 10A; Bob Herbert, Welfare Reform Brutalizes Poor, N.Y. TIMES, July 26, 1996, at A26; Michele Landis, The End of Compassion as We Know It, LEGAL TIMES, Aug. 5, 1996, at 21; Frances Fox Piven, The System is Not the Source, Opinion, N.Y. TIMES, Aug. 8, 1996, at A16.
42. Disaster relief appropriations have increased dramatically in recent years, engendering some criticism from commentators concerned with moral hazard. See, e.g., Charles T. Griffith, The National Flood Insurance Program: Unattained Purposes, Liability in Contract, and Takings, 35 WM. & MARY L. REV. 727, 737 (1994); Jonathan Rauch, Pennies from Heaven, 1992 NAT'L J. 2299, 2300; Richard Reeves, Hurhcane$, Earthquake$ and Flood$: If People Want to Build Their Houses in Dangerous Places, Why Should the Rest of Us Pay When Disaster Strikes?, 26 WASH. MONTHLY 10, 12 (1994).
43. Disaster relief appropriations have increased dramatically in recent years, engendering some criticism from commentators concerned with moral hazard. See, e.g., Charles T. Griffith, The National Flood Insurance Program: Unattained Purposes, Liability in Contract, and Takings, 35 WM. & MARY L. REV. 727, 737 (1994); Jonathan Rauch, Pennies from Heaven, 1992 NAT'L J. 2299, 2300; Richard Reeves, Hurhcane$, Earthquake$ and Flood$: If People Want to Build Their Houses in Dangerous Places, Why Should the Rest of Us Pay When Disaster Strikes?, 26 WASH. MONTHLY 10, 12 (1994).
44. Disaster relief appropriations have increased dramatically in recent years, engendering some criticism from commentators concerned with moral hazard. See, e.g., Charles T. Griffith, The National Flood Insurance Program: Unattained Purposes, Liability in Contract, and Takings, 35 WM. & MARY L. REV. 727, 737 (1994); Jonathan Rauch, Pennies from Heaven, 1992 NAT'L J. 2299, 2300; Richard Reeves, Hurhcane$, Earthquake$ and Flood$: If People Want to Build Their Houses in Dangerous Places, Why Should the Rest of Us Pay When Disaster Strikes?, 26 WASH. MONTHLY 10, 12 (1994).
45. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996). The conservative commentator William Bennett advocated ending welfare entirely in order to "declare that the federal government will no longer subsidize irresponsible social behavior." William J. Bennett, The Best Welfare Reform: End It, WASH. POST, Mar. 30, 1994, at A19.
46. American relief efforts have historically sorted the poor by their relative moral worth. See, e.g., HERBERT GANS, THE WAR AGAINST THE POOR: THE UNDERCLASS AND ANTIPOVERTY POLICY 1-5 (1995); LINDA GORDON, PITIED BUT NOT ENTITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935, at 1-35 (1994); JOEL F. HANDLER & YEHESKEL HASENFELD, THE MORAL CONSTRUCTION OF POVERTY 40-110 (1991); Jacobus tenBroek, California's Dual System of Family Law, 16 STAN. L. REV. 257 (1964). Gans argues that the use of the term "underclass" reinforces punitive welfare polices designed to sanction people who are thought to be at fault for their own deprivation through their reckless or irresponsible behavior. GANS, supra, at 2. However, "disaster" victims have almost entirely escaped any serious scrutiny as the indigent recipients of large, long-standing federal transfer payments and consequently have been considered outside this moral and theoretical framework. One notable exception is FRANCES FOX PIVEN & RICHARD CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 47 (1972), which points out that "federal aid was . . . given in cases of disasters such as floods and drought, but not for the disaster of unemployment." Id. 30 In contrast to other authors and at the risk of appearing evasive, I do not attempt a formal "definition" of disaster in this Article. See, e.g., KAI T. ERIKSON, EVERYTHING IN ITS PATH: DESTRUCTION OF COMMUNITY IN THE BUFFALO CREEK FLOOD 146 (1976) (those events that cause trauma to the social and familial networks of a community); Charles E. Fritz, Disaster, in CONTEMPORARY SOCIAL PROBLEMS: AN INTRODUCTION TO THE SOCIOLOGY OF DEVIANT BEHAVIOR AND SOCIAL DISORGANIZATION 651, 655 (Robert K. Merton & Robert A. Nisbet eds., 1961) ("an event, concentrated in time and space, in which a society, or a relatively self-sufficient subdivision of a society, undergoes severe danger and incurs such losses to its members and physical appurtenances that the social structure is disrupted and the fulfillment of all or some of the essential functions of the society is prevented"). As Professor Levmore observes, "a theory of disaster relief must suffer immediately from the problem of defining disaster." Levmore, supra note 21, at 32. I avoid this difficulty by focusing attention on how actors define "disaster," and on how their defining is linked to other social processes.
47. American relief efforts have historically sorted the poor by their relative moral worth. See, e.g., HERBERT GANS, THE WAR AGAINST THE POOR: THE UNDERCLASS AND ANTIPOVERTY POLICY 1-5 (1995); LINDA GORDON, PITIED BUT NOT ENTITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935, at 1-35 (1994); JOEL F. HANDLER & YEHESKEL HASENFELD, THE MORAL CONSTRUCTION OF POVERTY 40-110 (1991); Jacobus tenBroek, California's Dual System of Family Law, 16 STAN. L. REV. 257 (1964). Gans argues that the use of the term "underclass" reinforces punitive welfare polices designed to sanction people who are thought to be at fault for their own deprivation through their reckless or irresponsible behavior. GANS, supra, at 2. However, "disaster" victims have almost entirely escaped any serious scrutiny as the indigent recipients of large, long-standing federal transfer payments and consequently have been considered outside this moral and theoretical framework. One notable exception is FRANCES FOX PIVEN & RICHARD CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 47 (1972), which points out that "federal aid was . . . given in cases of disasters such as floods and drought, but not for the disaster of unemployment." Id. 30 In contrast to other authors and at the risk of appearing evasive, I do not attempt a formal "definition" of disaster in this Article. See, e.g., KAI T. ERIKSON, EVERYTHING IN ITS PATH: DESTRUCTION OF COMMUNITY IN THE BUFFALO CREEK FLOOD 146 (1976) (those events that cause trauma to the social and familial networks of a community); Charles E. Fritz, Disaster, in CONTEMPORARY SOCIAL PROBLEMS: AN INTRODUCTION TO THE SOCIOLOGY OF DEVIANT BEHAVIOR AND SOCIAL DISORGANIZATION 651, 655 (Robert K. Merton & Robert A. Nisbet eds., 1961) ("an event, concentrated in time and space, in which a society, or a relatively self-sufficient subdivision of a society, undergoes severe danger and incurs such losses to its members and physical appurtenances that the social structure is disrupted and the fulfillment of all or some of the essential functions of the society is prevented"). As Professor Levmore observes, "a theory of disaster relief must suffer immediately from the problem of defining disaster." Levmore, supra note 21, at 32. I avoid this difficulty by focusing attention on how actors define "disaster," and on how their defining is linked to other social processes.
48. American relief efforts have historically sorted the poor by their relative moral worth. See, e.g., HERBERT GANS, THE WAR AGAINST THE POOR: THE UNDERCLASS AND ANTIPOVERTY POLICY 1-5 (1995); LINDA GORDON, PITIED BUT NOT ENTITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935, at 1-35 (1994); JOEL F. HANDLER & YEHESKEL HASENFELD, THE MORAL CONSTRUCTION OF POVERTY 40-110 (1991); Jacobus tenBroek, California's Dual System of Family Law, 16 STAN. L. REV. 257 (1964). Gans argues that the use of the term "underclass" reinforces punitive welfare polices designed to sanction people who are thought to be at fault for their own deprivation through their reckless or irresponsible behavior. GANS, supra, at 2. However, "disaster" victims have almost entirely escaped any serious scrutiny as the indigent recipients of large, long-standing federal transfer payments and consequently have been considered outside this moral and theoretical framework. One notable exception is FRANCES FOX PIVEN & RICHARD CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 47 (1972), which points out that "federal aid was . . . given in cases of disasters such as floods and drought, but not for the disaster of unemployment." Id. 30 In contrast to other authors and at the risk of appearing evasive, I do not attempt a formal "definition" of disaster in this Article. See, e.g., KAI T. ERIKSON, EVERYTHING IN ITS PATH: DESTRUCTION OF COMMUNITY IN THE BUFFALO CREEK FLOOD 146 (1976) (those events that cause trauma to the social and familial networks of a community); Charles E. Fritz, Disaster, in CONTEMPORARY SOCIAL PROBLEMS: AN INTRODUCTION TO THE SOCIOLOGY OF DEVIANT BEHAVIOR AND SOCIAL DISORGANIZATION 651, 655 (Robert K. Merton & Robert A. Nisbet eds., 1961) ("an event, concentrated in time and space, in which a society, or a relatively self-sufficient subdivision of a society, undergoes severe danger and incurs such losses to its members and physical appurtenances that the social structure is disrupted and the fulfillment of all or some of the essential functions of the society is prevented"). As Professor Levmore observes, "a theory of disaster relief must suffer immediately from the problem of defining disaster." Levmore, supra note 21, at 32. I avoid this difficulty by focusing attention on how actors define "disaster," and on how their defining is linked to other social processes.
49. American relief efforts have historically sorted the poor by their relative moral worth. See, e.g., HERBERT GANS, THE WAR AGAINST THE POOR: THE UNDERCLASS AND ANTIPOVERTY POLICY 1-5 (1995); LINDA GORDON, PITIED BUT NOT ENTITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935, at 1-35 (1994); JOEL F. HANDLER & YEHESKEL HASENFELD, THE MORAL CONSTRUCTION OF POVERTY 40-110 (1991); Jacobus tenBroek, California's Dual System of Family Law, 16 STAN. L. REV. 257 (1964). Gans argues that the use of the term "underclass" reinforces punitive welfare polices designed to sanction people who are thought to be at fault for their own deprivation through their reckless or irresponsible behavior. GANS, supra, at 2. However, "disaster" victims have almost entirely escaped any serious scrutiny as the indigent recipients of large, long-standing federal transfer payments and consequently have been considered outside this moral and theoretical framework. One notable exception is FRANCES FOX PIVEN & RICHARD CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 47 (1972), which points out that "federal aid was . . . given in cases of disasters such as floods and drought, but not for the disaster of unemployment." Id. 30 In contrast to other authors and at the risk of appearing evasive, I do not attempt a formal "definition" of disaster in this Article. See, e.g., KAI T. ERIKSON, EVERYTHING IN ITS PATH: DESTRUCTION OF COMMUNITY IN THE BUFFALO CREEK FLOOD 146 (1976) (those events that cause trauma to the social and familial networks of a community); Charles E. Fritz, Disaster, in CONTEMPORARY SOCIAL PROBLEMS: AN INTRODUCTION TO THE SOCIOLOGY OF DEVIANT BEHAVIOR AND SOCIAL DISORGANIZATION 651, 655 (Robert K. Merton & Robert A. Nisbet eds., 1961) ("an event, concentrated in time and space, in which a society, or a relatively self-sufficient subdivision of a society, undergoes severe danger and incurs such losses to its members and physical appurtenances that the social structure is disrupted and the fulfillment of all or some of the essential functions of the society is prevented"). As Professor Levmore observes, "a theory of disaster relief must suffer immediately from the problem of defining disaster." Levmore, supra note 21, at 32. I avoid this difficulty by focusing attention on how actors define "disaster," and on how their defining is linked to other social processes.
50. American relief efforts have historically sorted the poor by their relative moral worth. See, e.g., HERBERT GANS, THE WAR AGAINST THE POOR: THE UNDERCLASS AND ANTIPOVERTY POLICY 1-5 (1995); LINDA GORDON, PITIED BUT NOT ENTITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935, at 1-35 (1994); JOEL F. HANDLER & YEHESKEL HASENFELD, THE MORAL CONSTRUCTION OF POVERTY 40-110 (1991); Jacobus tenBroek, California's Dual System of Family Law, 16 STAN. L. REV. 257 (1964). Gans argues that the use of the term "underclass" reinforces punitive welfare polices designed to sanction people who are thought to be at fault for their own deprivation through their reckless or irresponsible behavior. GANS, supra, at 2. However, "disaster" victims have almost entirely escaped any serious scrutiny as the indigent recipients of large, long-standing federal transfer payments and consequently have been considered outside this moral and theoretical framework. One notable exception is FRANCES FOX PIVEN & RICHARD CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 47 (1972), which points out that "federal aid was . . . given in cases of disasters such as floods and drought, but not for the disaster of unemployment." Id. 30 In contrast to other authors and at the risk of appearing evasive, I do not attempt a formal "definition" of disaster in this Article. See, e.g., KAI T. ERIKSON, EVERYTHING IN ITS PATH: DESTRUCTION OF COMMUNITY IN THE BUFFALO CREEK FLOOD 146 (1976) (those events that cause trauma to the social and familial networks of a community); Charles E. Fritz, Disaster, in CONTEMPORARY SOCIAL PROBLEMS: AN INTRODUCTION TO THE SOCIOLOGY OF DEVIANT BEHAVIOR AND SOCIAL DISORGANIZATION 651, 655 (Robert K. Merton & Robert A. Nisbet eds., 1961) ("an event, concentrated in time and space, in which a society, or a relatively self-sufficient subdivision of a society, undergoes severe danger and incurs such losses to its members and physical appurtenances that the social structure is disrupted and the fulfillment of all or some of the essential functions of the society is prevented"). As Professor Levmore observes, "a theory of disaster relief must suffer immediately from the problem of defining disaster." Levmore, supra note 21, at 32. I avoid this difficulty by focusing attention on how actors define "disaster," and on how their defining is linked to other social processes.
51. American relief efforts have historically sorted the poor by their relative moral worth. See, e.g., HERBERT GANS, THE WAR AGAINST THE POOR: THE UNDERCLASS AND ANTIPOVERTY POLICY 1-5 (1995); LINDA GORDON, PITIED BUT NOT ENTITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935, at 1-35 (1994); JOEL F. HANDLER & YEHESKEL HASENFELD, THE MORAL CONSTRUCTION OF POVERTY 40-110 (1991); Jacobus tenBroek, California's Dual System of Family Law, 16 STAN. L. REV. 257 (1964). Gans argues that the use of the term "underclass" reinforces punitive welfare polices designed to sanction people who are thought to be at fault for their own deprivation through their reckless or irresponsible behavior. GANS, supra, at 2. However, "disaster" victims have almost entirely escaped any serious scrutiny as the indigent recipients of large, long-standing federal transfer payments and consequently have been considered outside this moral and theoretical framework. One notable exception is FRANCES FOX PIVEN & RICHARD CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 47 (1972), which points out that "federal aid was . . . given in cases of disasters such as floods and drought, but not for the disaster of unemployment." Id. 30 In contrast to other authors and at the risk of appearing evasive, I do not attempt a formal "definition" of disaster in this Article. See, e.g., KAI T. ERIKSON, EVERYTHING IN ITS PATH: DESTRUCTION OF COMMUNITY IN THE BUFFALO CREEK FLOOD 146 (1976) (those events that cause trauma to the social and familial networks of a community); Charles E. Fritz, Disaster, in CONTEMPORARY SOCIAL PROBLEMS: AN INTRODUCTION TO THE SOCIOLOGY OF DEVIANT BEHAVIOR AND SOCIAL DISORGANIZATION 651, 655 (Robert K. Merton & Robert A. Nisbet eds., 1961) ("an event, concentrated in time and space, in which a society, or a relatively self-sufficient subdivision of a society, undergoes severe danger and incurs such losses to its members and physical appurtenances that the social structure is disrupted and the fulfillment of all or some of the essential functions of the society is prevented"). As Professor Levmore observes, "a theory of disaster relief must suffer immediately from the problem of defining disaster." Levmore, supra note 21, at 32. I avoid this difficulty by focusing attention on how actors define "disaster," and on how their defining is linked to other social processes.
52. American relief efforts have historically sorted the poor by their relative moral worth. See, e.g., HERBERT GANS, THE WAR AGAINST THE POOR: THE UNDERCLASS AND ANTIPOVERTY POLICY 1-5 (1995); LINDA GORDON, PITIED BUT NOT ENTITLED: SINGLE MOTHERS AND THE HISTORY OF WELFARE 1890-1935, at 1-35 (1994); JOEL F. HANDLER & YEHESKEL HASENFELD, THE MORAL CONSTRUCTION OF POVERTY 40-110 (1991); Jacobus tenBroek, California's Dual System of Family Law, 16 STAN. L. REV. 257 (1964). Gans argues that the use of the term "underclass" reinforces punitive welfare polices designed to sanction people who are thought to be at fault for their own deprivation through their reckless or irresponsible behavior. GANS, supra, at 2. However, "disaster" victims have almost entirely escaped any serious scrutiny as the indigent recipients of large, long-standing federal transfer payments and consequently have been considered outside this moral and theoretical framework. One notable exception is FRANCES FOX PIVEN & RICHARD CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 47 (1972), which points out that "federal aid was . . . given in cases of disasters such as floods and drought, but not for the disaster of unemployment." Id. 30 In contrast to other authors and at the risk of appearing evasive, I do not attempt a formal "definition" of disaster in this Article. See, e.g., KAI T. ERIKSON, EVERYTHING IN ITS PATH: DESTRUCTION OF COMMUNITY IN THE BUFFALO CREEK FLOOD 146 (1976) (those events that cause trauma to the social and familial networks of a community); Charles E. Fritz, Disaster, in CONTEMPORARY SOCIAL PROBLEMS: AN INTRODUCTION TO THE SOCIOLOGY OF DEVIANT BEHAVIOR AND SOCIAL DISORGANIZATION 651, 655 (Robert K. Merton & Robert A. Nisbet eds., 1961) ("an event, concentrated in time and space, in which a society, or a relatively self-sufficient subdivision of a society, undergoes severe danger and incurs such losses to its members and physical appurtenances that the social structure is disrupted and the fulfillment of all or some of the essential functions of the society is prevented"). As Professor Levmore observes, "a theory of disaster relief must suffer immediately from the problem of defining disaster." Levmore, supra note 21, at 32. I avoid this difficulty by focusing attention on how actors define "disaster," and on how their defining is linked to other social processes.
53. It is interesting to note that the elements of "compassion" or "pity" in literature are similar in structure to the successful narratives of disaster victims. Professor Nussbaum argues that compassion is elicited in Greek tragedy through the manipulation of stories containing a misfortune that is (1) large; (2) not the fault or beyond the fault of the victim; and (3) generalized enough to present the observer with the possibility of identification with the victim. See Martha Nussbaum, Compassion: The Basic Social Emotion, 13 SOC. PHIL. & POL'Y 27 (1996). For an excellent recent empirical treatment of the relation between moral blameworthiness and the elicitation of "sympathy" for various plights.
54. see CANDACE CLARK, MISERY AND COMPANY 81-127 (1997). Tellingly, Clark found that a scenario involving victims of a hurricane elicited, compared to any other hardship, the most sympathy from survey respondents. Id. at 53.
55. Erikson argues that claimants react differently to losses caused by an obvious tortfeasor and those attributed to God. However, he does not offer any way of distinguishing between the two. See KAI ERIKSON, A NEW SPECIES OF TROUBLE: EXPLORATIONS IN DISASTER, TRAUMA, AND COMMUNITY 141-43 (1994).
56. The famous case of the Buffalo Creek flood is instructive in this regard: it was hotly contested whether the flood was caused by too much rain sent by God (as the Pittston Company maintained) or negligent dam construction (according to everyone else). See GERALD M. STERN, THE BUFFALO CREEK DISASTER 10-16 (1976). The drought of 1930 presented a harder case in that both Hoover and the Red Cross had difficulty deciding whether it was bad credit, bad farming, or bad weather that caused Southern Starvation. See NAN E. WOODRUFF, AS RARE AS RAIN: FEDERAL RELIEF IN THE GREAT SOUTHERN DROUGHT OF 1930-31, at 18, 48-51 (1985).
57. The famous case of the Buffalo Creek flood is instructive in this regard: it was hotly contested whether the flood was caused by too much rain sent by God (as the Pittston Company maintained) or negligent dam construction (according to everyone else). See GERALD M. STERN, THE BUFFALO CREEK DISASTER 10-16 (1976). The drought of 1930 presented a harder case in that both Hoover and the Red Cross had difficulty deciding whether it was bad credit, bad farming, or bad weather that caused Southern Starvation. See NAN E. WOODRUFF, AS RARE AS RAIN: FEDERAL RELIEF IN THE GREAT SOUTHERN DROUGHT OF 1930-31, at 18, 48-51 (1985).
58. Neither historic nor contemporary disaster relief legislation make any distinction favoring "Acts of God." See 6 Op. Off. Legal Counsel 708, 711-12 (1982) ("It is apparent . . . that man-made disasters have been covered for as long as there has been specific disaster legislation."). The opinion also notes that of the hundreds of separate congressional authorizations for disaster relief prior to the adoption of comprehensive disaster legislation in 1950, over half were for man-made catastrophes. Id. at 716 n.5. Similarly, the Stafford Act defines a major disaster to include events "regardless of cause, any fire, flood, or explosion," and also defines a separate category of "emergency" which can be declared entirely in the discretion of the President, also without regard to cause. See Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5122 (1994).
59. See, e.g., Earthquake Hazards Reduction Act of 1977, 42 U.S.C. § 7701, 7704 (1988); FEMA, REP. TO THE STEERING COMM. NAT'L PERFORMANCE REV., PHASE II 9 (March 23, 1995) (proposing that local and state governments require mitigation through the use of land use regulations as a condition of receiving federal disaster relief, and that all purchasers obtain multi-hazard insurance in order to qualify for a federally-backed mortgage).
60. See U.S. CONST. art. I, § 8, cl. 1.
61. See United States v. Butler, 297 U.S. 1, 63-67 (1936); DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY 1888-1986, at 227-31 (1990). Professor Currie argues that Congress did not grant disaster relief to Savannah, Georgia in 1796 due to constitutional concerns about the scope of its authority under the Spending Clause to relieve deprivation thought to be local rather than national in scope. Id. at 228 n.127. He asserts that this conservative view determined questions of relief up to the Butler decision and the New Deal. However, Professor Currie apparently fails to consider over two hundred other cases prior to 1937 in which Congress did grant relief for disasters that were "local" rather than "general," including several in the same year as the Savannah fire. Furthermore, with respect to Savannah, it appears that Congress was much more concerned about setting a "dangerous precedent," and with the problem of moral hazard than with the Constitution. See infra notes 296-315 and accompanying text.
62. JOHN BUNYON, THE PILGRIM'S PROGRESS 8 (1678).
63. Although no particular set or class of events was consistently considered a "disaster" or "calamity," see supra notes 30-35 and accompanying text, certain events, such as fires and floods, were often (but by no means always) relieved. See, e.g., An Act for the relief of Thomas Jenkins & Company, ch. 20, 6 Stat. 2 (1790) (remission of duties on goods destroyed by storm); An Act for the relief of John Stewart and John Davidson, ch. 37, 6 Stat. 3 (1790) (remission of duties on salt destroyed by flood). This has less to do with the physical nature of the event than with the importance of precedent, see infra subpart III.C., and the relative ability of the claimants to elicit sympathy. See infra subpart III.D. Other man-made events such as revolutions, wars, and riots were also repeatedly relieved. See, e.g., An Act providing for the relief of the inhabitants of St. Domingo, resident within the United States, as may be found in want of support, ch. 2, 6 Stat. 13 (1794) (providing $15,000 for the relief of white planters fleeing the slave insurrection and French revolution on the island of St. Domingo, now Haiti); An Act to provide some present relief to the officers of government and other citizens who have suffered in their property by the insurgents in the western counties of Pennsylvania, ch. 33, 6 Stat. 20 (1795) (indemnification and relief for citizens who lost property in the Whiskey Rebellion).
64. Current federal disaster relief is governed primarily by the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5141 (1994), which provides for direct federal relief to state and local governments, see 42 U.S.C. §§ 5170(a)-5170(b), as well as to individuals, see 42 U.S.C. § 5178. Since 1978, this aid has been administered by the Federal Emergency Management Agency (FEMA). Reorganization Plan No. 3, 43 Fed. Reg. 41,943, 92 Stat. 3788 (1978). In addition, numerous federal agencies provide their own disaster programs, some of which are either administered or coordinated by FEMA: the Small Business Administration provides low interest loans, most of which are forgiven if the funds are used to repair disaster damage, see 15 U.S.C. § 636(b) (1969); Shanahan v. Commissioner of Internal Revenue, 63 T.C. 21, 26 (1974); the National Flood Insurance Administration provides federally subsidized flood insurance, see 42 U.S.C. §§ 4001-4128; the Department of Housing and Urban Development (HUD) provides free emergency housing for up to 18 months, see 42 U.S.C. § 5174; a special federally funded extension of unemployment benefits for six months (or longer, in the discretion of the President), see 42 U.S.C. § 5177; special food stamps which waive the eligibility criteria and the normal application procedures, see 42 U.S.C. § 5179; distribution of surplus food regardless of income eligibility, see 42 U.S.C. § 5180; other agencies provide legal assistance, see 42 U.S.C. § 5182, crisis, and other psychological counseling, see 42 U.S.C. § 5183, and relocation/mortgage assistance, see 42 U.S.C. § 5181. In addition, the Red Cross, a quasi-governmental agency, provides its own menu of services and direct relief. See 42 U.S.C. § 5147(b). Farmers have an additional source of disaster relief from the Farmers' Home Administration (FmHA), including loan forgiveness, mortgage assistance, and other programs. See, e.g., 7 U.S.C. § 1981a (loan deferments for disaster area farms); 7 U.S.C. § 1961 (national disaster emergency farm loans).
65. See, e.g., Ted Cohen, Victims of Flood Begin to Recover With Help from Relief Center: About 100 Families Have Taken Advantage of the Red Cross Service Offered at the Ballpark, PORTLAND PRESS HERALD, Oct. 29, 1996, at 1; Residents Get No Relief for Flooding Problem, ST. LOUIS POSTDISPATCH, Oct. 31, 1996, at 1.
66. See, e.g., Ted Cohen, Victims of Flood Begin to Recover With Help from Relief Center: About 100 Families Have Taken Advantage of the Red Cross Service Offered at the Ballpark, PORTLAND PRESS HERALD, Oct. 29, 1996, at 1; Residents Get No Relief for Flooding Problem, ST. LOUIS POSTDISPATCH, Oct. 31, 1996, at 1.
67. See An Act providing for the relief of such inhabitants of Saint Domingo, resident within the United States, as may be found in want of support, ch. 2, 6 Stat. 13 (1794), 3 ANNALS OF CONG. 169-73 (1796); Remission of duties on certain French vessels which had taken refuge in American ports in consequence of the negro insurrection at Hispaniola, 3 ANNALS OF CONG. app. 1 (1794); An Act for the remission of duties on eleven hogsheads of coffee which have been destroyed by fire, ch. 26, 6 Stat. 15 (1794), 3 ANNALS OF CONG. 86, 91-92 (1794); An Act for the remission of duties on certain distilled spirits destroyed by fire, ch. 53, 6 Stat. 17 (1794), 3 ANNALS OF CONG. 767 (1794); Taylor & Harvey's Claims for remission of duties on rum, sugar, and coffee lost in fire in Newbern, North Carolina, 3 ANNALS OF CONG. 988-89 (1794), 3 AMERICAN STATE PAPERS (Finance) No. 73 (1794); An Act for the remission of tonnage duties on certain French Vessels ch. 14, 6 Stat. 18 (1795); An Act to provide some present relief to the officers of government and other citizens who have suffered in their property by the insurgents in the western counties of Pennsylvania, ch. 33, 6 Stat. 20 (1794).
68. Three petitions for disaster relief were tabled during the third Congress, although none was directly denied. 3 ANNALS OF CONG. at 614-15, 689-95 (tabled a bill to indemnify losses due to British depredations); 9 AMERICAN STATE PAPERS (Claims) No. 39 (1794) (Committee considering the petition for the relief of Revolutionary War losses of William Dewees for damages by American troops to his estate in Valley Forge failed to report a bill); 3 ANNALS OF CONG. 988-89 (tabled petition for refund of duties paid on goods destroyed by fire). In the last cited case, Congress evidently became nervous that the relief granted earlier in the session had set a precedent and it tabled the motion so that it could "consider[] this practice." See id. at 990 (statement of Rep. Smith).
69. Congress rejected attempts to obtain federal relief for the unemployed urban poor numerous times during the depressions of 1893-94, 1914, and 1921 because their situation was said to be altogether different from that of disaster sufferers. See PIVEN & CLOWARD, supra note 29, at 47. In 1874, Representative Cox of New York objected on the floor of the House to a bill to provide $190,000 for the relief of poverty caused by flooding along the Mississippi River, saying "I think this bill is a little outside the scope of our legislation. Why do we not assist the forty thousand suffering and starving poor in the city of New York?" 2 CONG. REC. 3151 (1874). However, the flood relief bill passed easily. See An Act to provide for the relief of the persons suffering from the overflow of the lower Mississippi River, ch. 160, 18 Stat. 34 (1874). See also An Act to enable the Secretary of War to carry out the act of April twenty-third, eighteen hundred and seventy-four, entitled "An Act to provide for the relief of the persons suffering from the overflow of the Mississippi River," and for other purposes, ch. 170, 18 Stat. 45 (1874) (appropriating $190,000 and delegating administration of relief).
70. See PIVEN & CLOWARD, supra note 29, at 47.
71. U.S. CONST. art. 1, § 8, cl. 1. The notion of a historically narrow interpretation of this clause was famously articulated in Helvering v. Davis, 301 U.S. 619, 640 (1937). In Helvering, Justice Cardozo upheld the power of the federal government to enact the Social Security Act under the Spending Clause. He wrote that, "The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison. . . ." Id. Madison is understood to have argued that the Congress may only spend in the service of an enumerated power, while Hamilton argued that the power to tax and spend in the service of the "general welfare" constituted a separate congressional power. See United States v. Butler, 297 U.S. 1, 66-67 (1936). Since Helvering, it has been commonly believed that Madison's view of the Spending Clause had prevailed prior to 1937, blocking appropriations for social welfare programs, such as the allocation of public lands for the care of the insane, vetoed by President Franklin Pierce in 1854. See Franklin Pierce, Veto Messages (1854), reprinted in 5 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 247 (James D. Richardson ed., 1897). Similarly, appropriations for maternal and child health made under the Maternity Act, ch. 135, 42 Stat. 224 (1921), were attacked by the Supreme Court as lying outside the scope of federal authority. See Massachusetts v. Mellon, 262 U.S. 447, 482 (1923). The Court did not reach the issue of the spending power in Mellon, however, disposing of the case on the question of standing. Id. at 480. See also Edward S. Corwin, The Spending Power of Congress - Apropos the Maternity Act, 36 HARV. L. REV. 548, 551 (1923). Although as Professor Corwin notes, there were many so-called "extraneous" spending projects, such as lighthouses, education, and other internal improvements, social welfare spending was thought to be purely a state and local responsibility. See PIVEN & CLOWARD, supra note 29, at 46-47 & n.3; SKOCPOL, supra note 22, at 45 (attributing responsibility for the lack of federal welfare policy prior
72. U.S. CONST. art. 1, § 8, cl. 1. The notion of a historically narrow interpretation of this clause was famously articulated in Helvering v. Davis, 301 U.S. 619, 640 (1937). In Helvering, Justice Cardozo upheld the power of the federal government to enact the Social Security Act under the Spending Clause. He wrote that, "The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison. . . ." Id. Madison is understood to have argued that the Congress may only spend in the service of an enumerated power, while Hamilton argued that the power to tax and spend in the service of the "general welfare" constituted a separate congressional power. See United States v. Butler, 297 U.S. 1, 66-67 (1936). Since Helvering, it has been commonly believed that Madison's view of the Spending Clause had prevailed prior to 1937, blocking appropriations for social welfare programs, such as the allocation of public lands for the care of the insane, vetoed by President Franklin Pierce in 1854. See Franklin Pierce, Veto Messages (1854), reprinted in 5 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 247 (James D. Richardson ed., 1897). Similarly, appropriations for maternal and child health made under the Maternity Act, ch. 135, 42 Stat. 224 (1921), were attacked by the Supreme Court as lying outside the scope of federal authority. See Massachusetts v. Mellon, 262 U.S. 447, 482 (1923). The Court did not reach the issue of the spending power in Mellon, however, disposing of the case on the question of standing. Id. at 480. See also Edward S. Corwin, The Spending Power of Congress - Apropos the Maternity Act, 36 HARV. L. REV. 548, 551 (1923). Although as Professor Corwin notes, there were many so-called "extraneous" spending projects, such as lighthouses, education, and other internal improvements, social welfare spending was thought to be purely a state and local responsibility. See PIVEN & CLOWARD, supra note 29, at 46-47 & n.3; SKOCPOL, supra note 22, at 45 (attributing responsibility for the lack of federal welfare policy prior
73. See SKOCPOL, supra note 22, at 7.
74. See Steward Machine Co. v. Davis, 301 U.S. 548, 600-09 (1937) (McReynolds, J., dissenting). Justice McReynolds bolstered his view that the federal government lacked sufficient constitutional authority to engage in relief-giving by quoting at length from the veto message of Franklin Pierce regarding the land grants for indigent insane: "I can not find any authority in the Constitution for making the Federal Government the great almoner of public charity . . . To do so would . . . be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which the Union of these States is founded." Id. at 603. Herbert Hoover also believed that the Constitution proscribed direct federal relief for the Depression, arguing that such efforts were purely the responsibility of states and charitable organizations. See President Herbert Hoover, Statement to Congress on Relief (Feb. 3, 1931), reprinted in RAY L. WILBUR & ARTHUR M. HYDE, THE HOOVER POLICIES 376 (1936). See also CURRIE, supra note 37, at 227-28; PIVEN & CLOWARD, supra note 29, at 55; WOODRUFF, supra note 33, at 40, 86-87.
75. Franklin D. Roosevelt, Presidential Message to Congress (June 8, 1934), in 1 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 291 (Samuel I. Rosenman ed., 1938) [hereinafter ROOSEVELT PAPERS].
76. See infra subpart II.B.; Part III.
77. Many scholars have attempted to explain why America lagged far behind other industrialized nations in adopting social insurance programs. See ORLOFF, supra note 24; SKOCPOL, supra note 22, at 4-10, 13; Amenta & Skocpol, supra note 24; Skocpol & Ikenberry, supra note 24, at 143-44. See also Louis HARTZ, THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION (1955) (arguing that the ideology of the American Revolution was that of rugged individualism that resisted the adoption of social welfare provision); David Collier & Richard E. Messick, Prerequisites Versus Diffusion: Testing Alternative Explanations of Social Security Adoption, 69 AM. POL. SCI. REV. 1299, 1309, 1313 (1975) (noting that the United States is a significant outlier in adopting social security in the 1930s). Professor Skocpol argues persuasively that although the United States never approximated a comprehensive western welfare state either before or after the New Deal, attention should be paid to patterns of social provision that, though not matched to the European framework, nonetheless constitute distinctly American approaches to social need. See SKOCPOL, supra note 22, at 7. In describing Civil War pensions and mother's pensions as the earliest forms of American
78. Many scholars have attempted to explain why America lagged far behind other industrialized nations in adopting social insurance programs. See ORLOFF, supra note 24; SKOCPOL, supra note 22, at 4-10, 13; Amenta & Skocpol, supra note 24; Skocpol & Ikenberry, supra note 24, at 143-44. See also Louis HARTZ, THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION (1955) (arguing that the ideology of the American Revolution was that of rugged individualism that resisted the adoption of social welfare provision); David Collier & Richard E. Messick, Prerequisites Versus Diffusion: Testing Alternative Explanations of Social Security Adoption, 69 AM. POL. SCI. REV. 1299, 1309, 1313 (1975) (noting that the United States is a significant outlier in adopting social security in the 1930s). Professor Skocpol argues persuasively that although the United States never approximated a comprehensive western welfare state either before or after the New Deal, attention should be paid to patterns of social provision that, though not matched to the European framework, nonetheless constitute distinctly American approaches to social need. See SKOCPOL, supra note 22, at 7. In describing Civil War pensions and mother's pensions as the earliest forms of American
79. See Letter from James Madison, Secretary of State, to the House of
80. See, e.g., An Act for the Relief of the Citizens of Venezuela, ch. 79, 2 Stat. 730 (1812) (providing $50,000 for the relief of those left destitute by both the earthquake and civil war); An Act for the relief of the inhabitants of the late county of New Madrid, in the Missouri territory, who suffered by earthquakes, 13 ANNALS OF CONG. app. 1918-19 (1815) (providing for grants of free federal lands to replace any lands damaged by earthquake); An Act to authorize the payment for property lost, captured, or destroyed by the enemy, while in the military service of the United States, and for other purposes, ch. 40, 3 Stat. 261 (1816) (indemnifying most of the private property losses in the War of 1812), as amended by Act of March 3, 1817, ch. 110, 3 Stat. 397-98 (1817) (extending the provisions of the Act of April 9, 1816 to cover property lost in Indian depredations); An Act for the relief of certain Creek Indians, ch. 68, 6 Stat. 191 (1817) (providing $85,000 to indemnify the losses of "friendly" Creek Indians whose property was destroyed by "hostile" Creeks).
81. See 3 ANNALS OF CONG. 171-72 (1794). Although Madison expressed doubt about the measure's constitutionality, he supported the provision of "charity" as he was sure his fellow legislators "felt the warmest sympathy with the . . . sufferers." Id. Professor Currie correctly notes that Madison skirted addressing the extent of Congress's authority under the Spending Clause by proposing a compromise that subtracted part of the federal assistance to the refugees from American war debts owed to the French government. See David P. Currie, The Constitution in Congress: The Third Congress, 1793-1795, 63 U. CHI. L. REV. 1, 25 (1996). The French government subsequently refused to permit the offset, and the United States funded the relief effort. The scheme was later denounced during the debate over relief for the Savannah fire in 1796 as a subterfuge designed to "make the thing more palatable." 4 ANNALS OF CONG. 1724 (1796). Moreover, Madison admitted during the debate over the St. Domingo assistance that he was torn over whether to vote for the aid despite his reservations, saying that he "had not yet been able to resolve in his own mind" whether to refuse the aid on principle. Id. Professor Currie likely overstates Madison's opposition to federal spending on relief. As Representative Clark reproved Madison during the debate over St. Domingo, Madison himself proposed that the federal government indemnify all the losses of private American vessels to pirates. See 3 ANNALS OF CONG. 171 (1794) (statement of Rep. Clark). Madison also supported the relief of Tobias Lear. See supra note 52.
82. The Whiskey Rebellion was indemnified in 1795 at the urging of both Hamilton and Washington. See 3 ANNALS OF CONG. 995-1002 (1794); see also Letter from Alexander Hamilton to George Washington (Aug. 5, 1794), in THE WHISKEY REBELLION: PAST AND PRESENT PERSPECTIVES 31-49 (Steven R. Boyd ed., 1985).
83. During debate over relief for a fire in New York in 1836, Senator Tyler noted that several relief bills had been "approved by Thomas Jefferson." This was enough to persuade Senator Tyler of the constitutionality of the relief. See CONG. GLOBE, 24th Cong., 1st Sess. 102 (1836).
84. Story noted the history of grants for "cities laboring under severe calamities," and the appropriation for both the fleeing slave-holders of St. Domingo and the earthquake victims of Caracas, arguing that whatever Madison's philosophy on the Constitution, his practice had been to grant relief despite the lack of an enumerated power authorizing it. See 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 727-28 (5th ed. 1891).
85. See, e.g., An Act to provide for the relief of suffering from the overflow of the lower Mississippi River, ch. 1125, 18 Stat. 34 (1874); H.R.J. Res. 7, 40th Cong., 15 Stat. 246 (1868) (distribution of food through Freedmen's Bureau); H.R.J. Res. 17, 40th Cong., 15 Stat. 24 (1867) (transmission of relief funds to the south); An Act for the Relief of Persons for Damages sustained by Reason of Depredations and Injuries by certain Bands of Sioux Indians, ch. 37, 12 Stat. 652 (1863); An Act for the relief of the sufferers by the fire in the city of New York, ch. 42, 5 Stat. 6 (1836); An Act for the relief of the indigent sufferers by the fire at Alexandria, ch. 3, 6 Stat. 356 (1827).
86. The distinction between deserving and undeserving poor is elaborated in MICHAEL B. KATZ, THE UNDESERVING POOR (1989)
87. . Katz argues that one of the primary boundary markers dividing the two was the able-bodied nature of the undeserving variety. The able-bodied poor tended toward "pauperism" - the receipt of public relief, and were generally thought to be morally degenerate. Id. at 12-13. Doubtless, Katz is correct about the historical record, but how then are we to account for disaster relief - an extensive form of public charity for the able-bodied? Poverty brought on by an event considered a disaster did not throw suspicion on the moral character of its victims; indeed, it often elevated them to the status of heroes. See, e.g., 3 CONG. DEB. 759 (1827) (statement of Rep. Carson) ("He had seen delicate females . . . throwing themselves into the ranks, and handing water till their dresses were stiffened with ice, and their limbs with the cold, and who refused to retire from their post, though repeatedly urged to do so."). It is clearly possible to be the sort of person who can receive public relief and be able-bodied (or even have money in the bank), and not be considered a moral degenerate. See PIVEN & CLOWARD, supra note 29, at 47 n.3 (disaster relief often was pressed by otherwise conservative farmers ready to "qualify their staunch belief in self-help in the face of acts of God"). Perhaps the boundary between deserving and undeserving is less sharp than previously theorized. As with definitions of "disaster," supra note 30, the question of who is "deserving" is more or less what is at stake in contests over resources. Therefore, as Nancy Fraser points out, conflicts over needs often are established within a political discourse that is "skewed in favor of . . . dominant social groups and . . . occlude . . . the fact that the means of public discourse themselves may be at issue in needs politics." Nancy Fraser, Talking About Needs: Interpretive Contests as Political Conflicts in Welfare State Societies, 99 ETHICS 291, 294 (1989). Contrasting claims for disaster relief with those for poor relief assist us in understanding Fraser's already simple point: it is not merely the appropriation of the money that is politically contested, but also the characterization of the beneficiaries and their needs. Id.
88. See LEONARD D. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY 1789-1801, at 358 (1948) (noting that "[f]rom the earliest days members of Congress tried to do justice to claimants whose cases before the Treasury were insufficient under the law but who, nevertheless, had good standing before the conscience of the country").
89. Note, Private Bills in Congress, 79 HARV. L. REV. 1684 (1966). Early social welfare legislation, such as that for pensions and other relief were handled through the system of private law as claims on the resources of the federal government. See id. at 1685.
90. See id. at 1688.
91. Although most relief bills were reported out of a committee, the sponsors characterized certain petitions as too much of an emergency to permit the time required for the preparation of committee reports. See, e.g., 3 CONG. DEB. 747 (1827) (statement of Rep. Miner) ("[I]t was known to all the House that the City of Alexandria was at this moment burning. . . . He had, therefore, introduced the resolution with a view to meet their distressing condition as speedily as possible.").
92. See, e.g., Claims for Horses and Mules Lost in the Public Service, and for Whiskey and Gunpowder Destroyed at Chicago, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 243 (1813) (Report of Rep. Archer from the Committee of Claims on the petition for indemnification for property lost to Indian depredations); Claim for Remission of Duty, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 109, (1800) (Report of Rep. Harper from the Committee on Ways and Means on the petition of David Wiley for the remission of duties paid due to his losses from the "drying up of a spring from which his distillery was supplied with water").
93. See Note, supra note 61, at 1691.
94. See, e.g., Remission of Duties, reprinted in 3 AMERICAN STATE PAPERS (Finance) No. 120 (1798) (Report of Rep. Livingston of the Committee of Commerce and Manufactures on the petition of Nathaniel Cutter). Cutter imported merchandise into Boston and paid duties there, then attempted to transport the merchandise to the West Indies, where he was repeatedly captured by both the British and the French. He was not permitted by the leaders of the slave revolt on St. Domingo to unload his merchandise, and finally was forced to return to the United States, where he paid a second duty on the same goods. In recommending against Cutter's request for a refund, the Committee remarked that it could find "no good reason for relieving him against the consequences of a risk which every exporter ought to calculate for himself." Id. For the relation between tort doctrines such as contributory negligence and disaster appropriations, see infra notes 173-88 and accompanying text.
95. Both the Federalists and the Republicans supported the use of federal funds to relieve those who suffered sudden, unforeseeable losses through no fault of their own. Remission of Duties, Letter from Alexander Hamilton, Secretary of the Treasury, to the House of Representatives (Apr. 20, 1792), reprinted in 3 AMERICAN STATE PAPERS (Finance) No. 37 (1792) (recommending that Congress "vest somewhere a power" to investigate the circumstances surrounding cases of the "affecting . . . calamity" of shipwreck and to adjust or remit duties according to the circumstances); Letter from James Madison, Secretary of State, to the House of Representatives (Jan. 25, 1803), reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 136 (1803) (recommending relief for Tobias Lear, who was the disappointed United States' commercial agent at St. Domingo at the time of the slave revolt).
96. See An Act for the relief of the indigent sufferers by the fire at Alexandria, ch. 3, 6 Stat. 356 (1827); An Act for the Relief of the citizens of Venezuela, ch. 79, 2 Stat. 730 (1812); An Act authorizing the payment of certain sums of money to the daughters of the late Count de Grasse, ch. 3, 6 Stat. 31 (1798) (paying a lifetime annuity of $400 to each of four daughters to relieve loss of plantation at St. Domingo); An Act authorizing the payment of four thousand dollars for the use of the daughters of the late Count de Grasse, ch. 32, 6 Stat. 19 (1795) (relieving loss of plantation at St. Domingo as a result of slave revolution); An Act providing for the relief of such of the inhabitants of Saint Domingo, resident within the United States, as may be found in want of support, ch. 2, 6 Stat. 13 (1794).
97. See An Act for the relief of Joseph Forrest, ch. 34, 6 Stat. 323 (1825) (indemnifying loss of schooner while delivering relief supplies to Caracas in 1812); An Act to authorize the payment for property lost, captured, or destroyed by the enemy, while in the military service of the United States, and for other purposes, ch. 40, 3 Stat. 261 (1816); An Act for the relief of the inhabitants of the late county of New Madrid, in the Missouri territory, who suffered by earthquakes, 13 ANNALS OF CONG. app. 1918-19 (1815) (providing for grants of free federal lands to replace any lands damaged by earthquake); An Act to provide some present relief to the officers of government and other citizens who have suffered in their property by the insurgents in the western counties of Pennsylvania, ch. 33, 6 Stat. 20 (1795) (indemnification and relief for citizens who lost property in the Whiskey Rebellion).
98. See H.R.J. RES. 1, 24th Cong. (1836) (enacted) (providing food to white settlers following the Seminole Wars in Florida).
99. Relief was denied following a fire in Savannah, Georgia in 1796. See 4 ANNALS OF CONG. 1711-27 (1796). Relief was also denied for claims flowing from the Revolutionary War. See, e.g., Indemnity for Property Destroyed by the Enemy, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 39 (1794) (unfavorable report of the Committee on Claims regarding the petition of William Dewees for the destruction of his estate, Valley Forge, Pennsylvania by the American encampment in the winter of 1777). Many Revolutionary War claims, including this one, were eventually paid after relief payments made following the War of 1812 established a precedent requiring the payment of historical claims. See Indemnity for Property Destroyed by the Enemy in 1777, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 349 (1817). The Committee of Claims then reported that the petition of Sarah Dewees, the widow of William, should receive relief because her claim was "entirely within the scope" of the act for the relief of the War of 1812.
100. See infra subpart III.D.
101. See, e.g., Loan to John F. Amelung, reprinted in 3 AMERICAN STATE PAPERS (Finance) No. 14 (1790). The Committee on Manufactures reported favorably on the petition of Amelung for relief in the form of a loan to his failing glass factory. The Committee noted that Amelung had recently suffered a loss by fire, and that "near five hundred persons depend on him for their daily subsistence." Id. The House denied relief, however, after concerns about his management of the business were raised: "[I]t is acknowledged that £20,000 have been employed in the undertaking, and yet it is in danger of failing." 1 ANNALS OF CONG. 1688 (1790) (statement of Rep. Smith). The fire was not mentioned in the House debate. The availability of fire insurance and increased understanding of the causes and prevention of fires led to holding uninsured petitioners responsible for their own losses. See, e.g., Remission of Duties, reprinted in 3 AMERICAN STATE PAPERS (Finance) No. 241 (1806) (report of Rep. Crowninshield of the Committee of Commerce and Manufactures on the Petition of Elizabeth Peckham). The Committee determined that it was Peckham's husband's failure to insure his shipment of rum, lost when his boat sank in a violent storm, that caused the forfeiture of their farm. Even though the forfeiture left the widowed Peckham and her six children homeless, no precedent should be set for the relief of uninsured petitioners who lost goods in "fire, storms and . . . every accident or injury whatever." Id. It is interesting to note that the House considered and rejected a proposal to implement a system of federal fire insurance as early as 1794. See Insurance Against Loss By Fire, reprinted in 3 AMERICAN STATE PAPERS (Finance) No. 45 (1794) (report of Rep. Giles on the petition of William Frederick Ast). Ast submitted a "general plan of insurance against accidents by fire . . . in which all persons may insure all their houses, with the furniture and wearing apparel contained therein, their barns with the straw, grain, and hay. . . ." Part of the appeal of Ast's plan, according to the report, was that it would relieve the government of the obligation to indemnify losses and remit duties. See id. On the subject of late eighteenth- and early nineteenth-century views of fire and insurance, see CAROL A. HEIMER, REACTIVE RISK AND RATIONAL ACTION: MANAGING MORAL HAZARD IN INSURANCE CONTRACTS 49-90 (1985).
102. 4 ANNALS OF CONG. 1712 (1796) (statement of Rep. Cooper).
103. See infra notes 77-81 and accompanying text.
104. See infra notes 82-122 and accompanying text.
105. See 3 ANNALS OF CONG. 614 (1794).
106. 12 CONG. DEB. 2581 (1836) (statement of Rep. Storer) (listing prior appropriations for relief).
107. Id. at 2586-87 (statement of Rep. Hunt) (listing prior relief appropriations).
108. 3 ANNALS OF CONG. 614 (1794) (emphasis added).
109. The federal government indemnified much of the private property destroyed during the War of 1812 by Americans, British, or Indians. See An Act to authorize the payment for property lost, captured, or destroyed by the enemy, while in the military service of the United States, and for other purposes, ch. 40, 3 Stat. 261 (1816). Claims were authorized by the Commissioner of Claims, who had an office in Washington for reviewing petitions and evidence. Total appropriations for the federal government for the year 1817 were $12,451,799.57. Of this, over $1 million went to pay claims under the Act. See 14 ANNALS OF CONG. 375, 439 (2d Sess. 1817).
110. See, e.g., 3 ANNALS OF CONG. 1000-02 (1794) (delegating authority to the President to establish a commission for the investigation and distribution of relief following the Whiskey Rebellion); An Act to authorize the payment for property lost, captured, or destroyed by the enemy, while in the military service of the United States, and for other purposes, ch. 40, 3 Stat. 261 (1816) (authorizing the President to appoint, with the advice and consent of the Senate, a commissioner who was in turn empowered to appoint other commissioners for the purpose of investigating and verifying applications for benefits under the Act).
111. See, e.g., An Act for the Relief of Joseph Forrest, ch. 34, 6 Stat. 323 (1825) (directing the Secretary of the Treasury to pay Joseph Forrest $2,136 to compensate him for the destruction of his schooner in 1812, to be paid from any money in the treasury not otherwise appropriated).
112. See An Act providing for the relief of such inhabitants of Saint Domingo, resident within the United States, as may be found in want of support, ch. 2, 6 Stat. 13 (1796), 3 ANNALS OF CONG. 169-73 (1796). The bill provided for relief for all members of the class, some fifteen-hundred persons in all.
113. See An Act for the relief of the sufferers by the fire in the city of New York, ch. 42, 5 Stat. 6 (1836) (providing relief for all merchants who had imported goods into the port of New York within a specified time).
114. For example, an Act remitting duties on "capacities of stills" in consequence of the destruction of fruit preventing their employment. 12 CONG. DEB. 2581 (1836) (statement of Rep. Storer).
115. Administration also was devolved to state or territorial governors, Indian agents, and other governmental officers who were locally stationed. See, e.g., An Act for the relief of certain Creek Indians, ch. 68, 3 Stat. 191 (1817). Under this Act, $85,000 was appropriated for the relief of "friendly" Creek Indians who had been attacked by "hostile" Creek Indians. The funds were transferred to North Carolina Governor Mitchell for distribution. See Losses Sustained by the War with the Creek Indians, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 386 (1818).
116. See infra notes 286-99 and accompanying text. Congress actually received two petitions for class-based relief flowing from the Whiskey Rebellion. One, which was granted, was for those damaged by the insurrectionists. The other, which was unfavorably reported out of Committee and eventually denied by the House, was for a similar grant of relief for those whose property was damaged or destroyed by the militia Washington raised to quell the uprising, derisively called the "Watermelon Army." See Indemnity for Losses Sustained by the Militia in 1794, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 102 (1798) (report of Rep. Foster from the Committee of Claims against the petition for relief); see also THOMAS P. SLAUGHTER, THE WHISKEY REBELLION: FRONTIER EPILOGUE TO THE AMERICAN REVOLUTION 46 (1986). At that time, Congress had not yet agreed to relieve any losses arising out of the Revolutionary War and was concerned about establishing a precedent for indemnifying claims for damages by American troops or militia, because hundreds of such claims had been denied in the previous session. See Indemnity for Losses Sustained by the Militia in 1794, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 102 (1798).
117. 3 ANNALS OF CONG. 1001-02 (1794).
118. See Letter from Alexander Hamilton to George Washington (Aug. 5, 1794), in THE WHISKEY REBELLION: PAST AND PRESENT PERSPECTIVES 31-49 (Steven R. Boyd ed., 1985).
119. See Indemnity for Losses Sustained by the Insurgents in 1794, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 114, at 235-36 (1800).
120. See 3 ANNALS OF CONG. 1002 (1794) (statement of Rep. Hillhouse).
121. See Indemnity for Losses Sustained by the Insurgents in 1794, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 114 (1800). Treasury Secretary Oliver Woolcott provided a detailed report of the commissioner's awards to citizens. Some of the property replaced by Congress was "a long spy glass of the best kind," salt, bacon, and the rest of all of John Nevill's personal property. In addition, the commissioner awarded funds for such things as transportation to flee the insurrection, and the cost of food, clothing and shelter in its aftermath. See id.
122. 3 ANNALS OF CONG. 1001 (1794) (statement of Rep. Giles).
123. Id. (statement of Rep. Hillhouse). The dispute over executive discretion was part of a larger Republican attack on Hamilton's policy favoring extensive executive discretion in spending. Opposition was very limited with respect to relief distribution, however, perhaps because even Madison admitted that in "emergencies . . . of so extraordinary and pressing a nature" the executive was released from whatever bounds Congress had set. See WHITE, supra note 60, at 330-32 (quoting James Madison).
124. See 14 ANNALS OF CONG. 386-91 (2d Sess. 1816) (statements of Reps. Randolph and Grosvenor) (criticizing the private bill process).
125. Bureaucracy is stimulated by "intensive and qualitative expansion of the administrative tasks" required by a society. See Max Weber, Bureaucracy, in ECONOMY AND SOCIETY 971-73 (Guenther Roth & Claus Wittich eds., 1978). Bureaucracy is, according to Weber, technically superior to collegiate organization because "work organized by collegiate bodies . . . causes friction and delay and requires compromises between colliding interests and views." Id. at 974-75.
126. See ch. 40, § 11-12, 3 Stat. 263 (1816).
127. Id. at § 12.
128. See Proceedings of the Commissioner Appointed Under the Act for the Payment for Property Taken or Destroyed by the Enemy During the War with Great Britain, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 324, at 492, pt. A (1816).
129. 14 ANNALS OF CONG. 387-88 (2d Sess. 1816) (statement of Rep. Randolph).
130. See id. at 439 (statement of Rep. Johnson); Losses at Buffalo and on The Niagra Frontier, in New York (Jan. 23, 1817), reprinted in 9 AMERICA STATE PAPERS (Claims) No. 339, at 507 (1817).
131. See H.R. REP. NO. 15-177, at 1 (1818).
132. Letter from Richard Bland Lee, Commissioner of Claims to George Graham, Acting Secretary of War (Oct. 28, 1816), reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 324, at 495, pt. F (1816) [hereinafter Richard Lee Letter].
133. Ch. 40, § 9, 3 Stat. 262, 263 (1816) (emphasis in original).
134. See Richard Lee Letter, supra note 104. Lee's explanation was later derided as "nothing more than an elementary treatise, drawn up by Mr. Lee, or somebody else for him, which he suspected was the fact - a learned treatise on the construction of statutes." 14 ANNALS OF CONG. 369 (2d Sess. 1816) (statement of Rep. Hardin).
135. See 14 ANNALS OF CONG. 369 (2d Sess. 1816) (statement of Rep. Hardin); Losses at Buffalo and on the Niagara Frontier, in New York, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 339, at 507 (1817) (report of Rep. Clark on the petition of the inhabitants of Buffalo and the Niagara frontier for relief under the provisions of the Act of April 9, 1816).
136. See H.R. REP. NO. 15-177, at 1-3 (1818). Eventually, the Committee on Claims accused the New York claimants of "fraud, forgery, and perhaps perjury" in attempting to obtain relief. Extension of the Provisions of the Act to Pay for Property Captured or Destroyed by the British Forces, reprinted in 9 AMERICAN STATE PAPERS (Claims) No. 412, at 590-91 (1818). The Committee decried the fact that a law which "originated in its benignity, and aimed gratuitously for the benefit any suffering portion of the community" had generated so much fraud that it had been cast into disrepute. Id. Congress ultimately denied all the Niagara claims not paid by Lee. See 15 ANNALS OF CONG. 1698-99 (1st Sess. 1818).
137. See, e.g., 14 ANNALS OF CONG. 370-72 (2d Sess. 1816) (statement of Rep. Wright) ("If there was any fault in regard to the [Act] . . . it was in the selection of a man for Commissioner who wanted judgment.").
138. See id. at 386-88 (statement of Rep. Randolph); id. at 374-75 (statement of Rep. Yancey); id. at 379-81 (statement of Rep. Tucker).
139. See id. at 386 (statement of Rep. Randolph).
140. Id. at 383 (statement of Rep. Clay, Speaker of the House).
141. Id. at 389 (statement of Rep. Grosvenor).
142. See, e.g., id. at 370 (statement of Rep. Robertson); id. at 375 (statement of Rep. Johnson).
143. Id. at 386 (statement of Rep. Clay, Speaker of the House).
144. Id. at 386 (statement of Rep. Clay, Speaker of the House).
145. Id. at 387 (statement of Rep. Randolph).
146. Id. at 389 (statement of Rep. Grosvenor).
147. Id. at 370 (statement of Rep. Robertson).
148. Id. at 375 (statement of Rep. Johnson).
149. See id. at 371 (statement of Rep. Wright).
150. The vote was 74-67. See id. at 441.
151. See infra notes 272-75 and accompanying text.
152. See supra notes 67-74 and accompanying text.
153. See infra notes 285-98 and accompanying text.
154. See infra notes 237-69 and accompanying text.
155. See, e.g., SLAUGHTER, supra note 88, at 224. By 1796, the value of Washington's vast holdings increased in value by 50%. See id. Washington was the biggest and most important of the "rich absentee land speculators" in the Western Pennsylvania region. See STEPHEN E. AMBROSE, UNDAUNTED COURAGE: MERIWETHER LEWIS, THOMAS JEFFERSON, AND THE OPENING OF THE AMERICAN WEST 38 (1996).
156. See MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM 182 (Talcott Parsons trans., Scribner 1958) (1930).
157. See BERNARD BAILYN, IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 30-31 (1967).
158. See id. at 172-73; KAI T. ERIKSON, WAYWARD PURITANS 48-49 (1966).
159. See WEBER, supra note 128, at 177. Weber argues that Puritanism developed in America into "a specifically bourgeois economic ethic" in which the businessman could accumulate wealth without limit "as long as his moral conduct was spotless and the use to which he put his wealth was not objectionable," and feel that he was fulfilling a holy calling. Id. at 176-77.
160. See ERIKSON, supra note 130, at 47.
161. Id. at 47-49; See also BAILYN, supra note 129, at 33.
162. Westminster Confession of 1647, quoted in WEBER, supra note 128, at 101.
163. WEBER, supra note 128, at 103-04.
164. See id. at 103.
165. See id. at 104-05.
166. Id. at 103.
167. See id. at 178-79.
168. See PIVEN & CLOWARD, supra note 29, at 46-47 (noting that English Puritans tended to view the poor, particularly the unemployed poor, far more leniently than their American counterparts because the poor provided the more fortunate with an opportunity to express charity). American Puritans, however, rejected this less vindictive, if paternalistic, view in favor of the belief that poverty was the outward symptom of sloth and sinfulness. See id. at 46.
169. 3 Stats. at Large of Pa., 1682-1801 ch. 238 (1718).
170. See WEBER, supra note 128, at 100-02.
171. See id. at 175-77.
172. See JUNE AXIN & HERMAN LEVIN, SOCIAL WELFARE: A HISTORY OF THE AMERICAN RESPONSE TO NEED 20-23 (1982).
173. See id. at 15-31.
174. Jacobus tenBroek, The Two Nations: Differential Moral Values in Welfare Law and Administration, in CRISIS IN AMERICAN INSTITUTIONS 350, 353-54, (Jerome Skolnik & Elliot Currie eds., 1970); see Aaronson, supra note 26, at 220-23.
175. See An Act for Relief of the Poor, 43 Elizabeth 1601; AXIN & LEVIN, supra note 144, at 15-20.
176. AXIN & LEVIN, supra note 144, at 16.
177. See id. at 17. Indian wars, epidemics, uncontrollable fires, marine accidents, and other events were risks to which all colonists were subject. See AXIN & LEVIN, supra note 144, at 17. Martha Nussbaum argues that the ability to believe that one's own possibilities are similar to those of the sufferer is one of the requirements for the emotion of compassion. See MARTHA C. NUSSBAUM, POETIC JUSTICE: THE LITERARY IMAGINATION AND PUBLIC LIFE 65 (1995). She also points to the notion of blamelessness as the primary impetus to pity in Greek tragedy. See id. The importance of this sentiment to the provision of relief is apparent: "Those known to be in need through no fault of their own could be helped with cash relief in their own homes . . . ." AXIN & LEVIN, supra note 144, at 17. Although "indoor" relief (relief in a public institution or foster home) was the normal means of delivery, disaster victims were in a rare class of recipients eligible for "outdoor" relief - eligible to remain in their own homes. See VIVIANA A. ZELIZER, THE SOCIAL MEANING OF MONEY 157-58 (1994). Zelizer notes that the innocence of the "disaster" or "emergency" victim was such that they could be trusted with outdoor cash relief: "[t]heir misfortune was temporary and certainly involuntary . . . . The key was not to confuse the cashworthy with the corrupt or undeserving poor." Id.
178. See id. at 17. Indian wars, epidemics, uncontrollable fires, marine accidents, and other events were risks to which all colonists were subject. See AXIN & LEVIN, supra note 144, at 17. Martha Nussbaum argues that the ability to believe that one's own possibilities are similar to those of the sufferer is one of the requirements for the emotion of compassion. See MARTHA C. NUSSBAUM, POETIC JUSTICE: THE LITERARY IMAGINATION AND PUBLIC LIFE 65 (1995). She also points to the notion of blamelessness as the primary impetus to pity in Greek tragedy. See id. The importance of this sentiment to the provision of relief is apparent: "Those known to be in need through no fault of their own could be helped with cash relief in their own homes . . . ." AXIN & LEVIN, supra note 144, at 17. Although "indoor" relief (relief in a public institution or foster home) was the normal means of delivery, disaster victims were in a rare class of recipients eligible for "outdoor" relief - eligible to remain in their own homes. See VIVIANA A. ZELIZER, THE SOCIAL MEANING OF MONEY 157-58 (1994). Zelizer notes that the innocence of the "disaster" or "emergency" victim was such that they could be trusted with outdoor cash relief: "[t]heir misfortune was temporary and certainly involuntary . . . . The key was not to confuse the cashworthy with the corrupt or undeserving poor." Id.
179. Aaronson, supra note 26, at 222.
180. See BAILYN, supra note 129, at 26-28.
181. Id. at 27.
182. See id. at 30. Citations to Locke were so ubiquitous among Revolutionary pamphleteers and other writers that he was at times referred to in "the most offhand way, as if he could be relied on to support anything the writers happened to be arguing." Id. at 28.
183. See id. at 28-29. Locke was one of the "most influential of the political philosophers from whom both Federalists and Anti-Federalists alike sought guidance." Robert H. Horwitz, John Locke and the Preservation of Liberty: A Perennial Problem of Civic Education, in THE MORAL FOUNDATION OF THE AMERICAN REPUBLIC 136 (Robert H. Horwitz ed., 3d ed. 1986).
184. Although Paine denied that he had been influenced by Locke (or that he had ever read any of his works) most commentators believe these denials to be a disingenuous response to a political enemy. See Nelson F. Adkins, Introduction to THOMAS PAINE, COMMON SENSE AND OTHER POLITICAL WRITINGS at xi, xiv (Nelson F. Adkins ed., 1953). At the very least, Paine was influenced by writers who themselves relied heavily on Locke for an articulation of a theory of the state opposed to Leviathan. See id. at xv. Locke himself admitted that his contribution was not the origin but rather the synthesis into a "clear and reasonable" treatise of his theory of the state. See Thomas P. Peardon, Introduction to JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT at vii, xiii (Thomas P. Peardon ed., 1952) (1690). Paine's theory of the natural law and the rights of man is "veined with expressions of, and allusions to" Locke's "doctrine of natural rights and the concomitant theory of the social contract." Adkins, supra, at xvi.
185. Although Paine denied that he had been influenced by Locke (or that he had ever read any of his works) most commentators believe these denials to be a disingenuous response to a political enemy. See Nelson F. Adkins, Introduction to THOMAS PAINE, COMMON SENSE AND OTHER POLITICAL WRITINGS at xi, xiv (Nelson F. Adkins ed., 1953). At the very least, Paine was influenced by writers who themselves relied heavily on Locke for an articulation of a theory of the state opposed to Leviathan. See id. at xv. Locke himself admitted that his contribution was not the origin but rather the synthesis into a "clear and reasonable" treatise of his theory of the state. See Thomas P. Peardon, Introduction to JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT at vii, xiii (Thomas P. Peardon ed., 1952) (1690). Paine's theory of the natural law and the rights of man is "veined with expressions of, and allusions to" Locke's "doctrine of natural rights and the concomitant theory of the social contract." Adkins, supra, at xvi.
186. See, e.g., C.B. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM 1-20 (1962).
187. See id. at 3.
188. See JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT at vii, xiii (Thomas P. Peardon ed., 1955) (1690) (stating that "[t]he great and chief end . . . of men's uniting into commonwealths and putting themselves under government, is the preservation of their property").
189. See id. at 82 (stating that the legislature was to direct how the commonwealth should engage in "preserving the community and the members of it"). Locke also argued that one of the primary functions of the state, indeed a natural function, is not merely to protect property but the compensation and amelioration of harm, because "an injury done to a member of their body engages the whole in the reparation of it." Id. at 83.
190. Id. at 50.
191. Id.
192. Id. at 72-73.
193. Id.
194. See Horwitz, supra note 154, at 154-56. Shortly following the publication of the Two Treatises of Government, Locke published a tract, Some Thoughts concerning Education, that has now faded into obscurity. In it Locke outlined a pedagogy of civic virtue designed to prepare a citizenry for political and civil society. Although it is impossible to know with certainty the influence of this work relative to the Second Treatise of Government, it was widely available. Fifteen editions and many reprintings appeared between 1693 and 1779, and it was "readily available and widely read." Jefferson even purchased a copy for his private library. Id. at 134-142.
195. Thomas Paine, The Rights of Man, reprinted in THOMAS PAINE, COMMON SENSE AND OTHER POLITICAL WRITINGS 83 (Nelson F. Adkins ed., 1953).
196. Paine argued that "[m]an did not enter society to . . . have fewer rights than he had before, but to have those rights better secured." Id. at 84. Furthermore, he advocated direct federal relief as a duty of government, proposing pensions for elderly, unemployed, and mothers as early as 1792. See Adkins, supra note 155, at xli. He later elaborated a theory of wealth redistribution that would have paid a fifteen pound annuity to every citizen on reaching the age of majority as "compensation . . . for the loss of his or her natural inheritance, by the introduction of the system of landed property." Id. at xlvii.
197. ADAM SMITH, THE THEORY OF MORAL SENTIMENTS 12 (1789), cited in NUSSBAUM, supra note 149, at 73.
198. See NUSSBAUM, supra note 149, at 74.
199. DAVID HUME, A TREATISE OF HUMAN NATURE (1739).
200. JEAN-JACQUES ROUSSEAU, EMILE 224 (Allan Bloom trans., 1979). Nussbaum argues that Rousseau is here following Aristotle's insight that "awareness of one's own weakness and vulnerability is a necessary condition for pity." Nussbaum, supra note 31, at 34.
201. See CLARK, supra note 31, at 38-40; Nussbaum, supra note 31, at 33-35; NUSSBAUM, supra note 149, at 66-75.
202. See CLARK, supra note 31, at 40.
203. See WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830, at 246 n.17 (1975).
204. See BAILYN, supra note 129, at 30-31.
205. Id. This adulation was not limited to lawyers, so that citation to the towering figures of the early common law - Blackstone, Lord Coke, Camden - were "almost as frequent as, and occasionally even less precise than, those to Locke, Montesquieu, and Voltaire." Id. at 30.
206. Negligence and contributory negligence evolved as a means of resolving conflicts over marine collisions, originally pleaded as a "[c]ase for carelessly managing a vessel." NELSON, supra note 173, at 246 n.17. Strict liability was of no use in collisions because inquiry into causation inevitably led to the issue of fault, shifting the emphasis of the action from "causation to carelessness." See id., see also MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 296-97 n. 141; Wex S. Malone, The Formative Era of Contributory Negligence, 41 ILL. L. REV. 151 (1946).
207. Negligence and contributory negligence evolved as a means of resolving conflicts over marine collisions, originally pleaded as a "[c]ase for carelessly managing a vessel." NELSON, supra note 173, at 246 n.17. Strict liability was of no use in collisions because inquiry into causation inevitably led to the issue of fault, shifting the emphasis of the action from "causation to carelessness." See id., see also MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 296-97 n. 141; Wex S. Malone, The Formative Era of Contributory Negligence, 41 ILL. L. REV. 151 (1946).
208. See NELSON, supra note 173, at 247.
209. See id. at 246.
210. The case of Sproul v. Hemmingway, 14 Mass. 1 (Pick. 1833), is generally considered the boundary marker for the emergence of the modern negligence action.
211. By 1824 (three years prior to the congressional debate concerning relief for victims of the Alexandria fire) state courts routinely upheld the validity of defensive pleas of contributory negligence unless a plaintiff could show that he used ordinary care. Freedom from contributory negligence quickly became a necessary element of the plaintiff's case. See NELSON, supra note 173, at 247-48 n.17. That a guilty plaintiff could not recover was true regardless of the conduct of the defendant. Therefore, Professor Horwitz notes that even in those states that continued to hold defendants strictly liable on nuisance or trespass theories, contributory negligence formed a sort of threshold inquiry. See HORWITZ, supra note 176, at 96.
212. See HORWITZ, supra note 176, at 95; Malone, supra note 176, at 155-60.
213. Smith v. Smith, 2 Mass. 621, 623 (Pick. 1824), cited in NELSON, supra note 173, at 247 n.17. Plaintiffs were required to plead and prove freedom from contributory negligence in the early nineteenth century in order to establish causation.
214. See HORWITZ, supra note 176, at 95.
215. There is some disagreement over the speed of the transition from strict liability to modern negligence doctrine. Although it is true that it was forty years between the emergence of fault-based causation analysis and Sproul, Nelson notes that between 1790 and 1810 strict liability was superseded by fault in fire-spreading cases, in which juries refused overwhelmingly to impose liability on defendants because, although the fire had spread to the plaintiff's property, the "spread was not the result of fault on the part of the defendant." NELSON, supra note 173, at 248. However, Professor Horwitz argues that "although American judges talked the language of negligence from the beginning of the nineteenth century, it was quite some time before they used the negligence concept in order to mount a general attack on the prevailing standard of strict liability." HORWITZ, supra note 176, at 89. Nevertheless, commentators agree that newer notions of fault and blame in determinations of causation took over the landscape of civil liability beginning at the turn of the nineteenth century.
216. See Smith, 2 Mass. at 623; HORWITZ, supra note 176, at 95. The first English case decided on a theory of contributory negligence was Butterfield v. Forrester, 103 Eng. Rep. 126 (1809).
217. See HORWITZ, supra note 176, at 96.
218. See id.
219. BAILYN, supra note 129, at 31.
220. 12 CONG. DEB. 2551 (1836) (statement of Rep. Phillips, in support of relief following a fire in New York City).
221. See infra subpart III.A.
222. See infra subpart III.C.
223. See infra subpart III.D, fig. 2.
224. See id.
225. See infra subpart III.B.
226. 3 CONG. DEB. 763 (1827) (statement of Rep. Cambreleng).
227. For example, some members of Congress raised constitutional objections with respect to the federal relief following: a fire in Savannah, Georgia, see 4 ANNALS OF CONG. 1717 (1796) (statement of Rep. Macon); a business failure of a large glass factory due to fire and price fluctuations, see 1 ANNALS OF CONG. 1686-87 (1790); a fire in Alexandria, Virginia, see 3 CONG. DEB. 747, 752-74 (1827).
228. There were two presidential refusals to support congressional action for drought relief, although neither was solely (or even primarily) on constitutional grounds. Grover Cleveland vetoed a "feed and seed" bill to relieve the Texas drought of 1887, chastising Congress that "the lesson should be constantly enforced that the people should support the Government, the Government should not support the people." WOODRUFF, supra note 33, at 40, 86-87. Citing Cleveland's veto, Hoover withheld his support for drought relief in 1930-31, forcing a legislative compromise that provided feed for animals but not humans. Hoover was concerned about preserving private philanthropy and local initiative (as well as forestalling the adoption of federal unemployment relief). He only tangentially opposed federal relief on constitutional grounds, as an invasion of states' rights. See Herbert Hoover, Statement to Congress on Relief, February 3, 1931 , reprinted in RAY L. WILBUR & ARTHUR M. HYDE, THE HOOVER POLICIES 376 (1937); WOODRUFF, supra note 33, at 86-87.
229. There were two presidential refusals to support congressional action for drought relief, although neither was solely (or even primarily) on constitutional grounds. Grover Cleveland vetoed a "feed and seed" bill to relieve the Texas drought of 1887, chastising Congress that "the lesson should be constantly enforced that the people should support the Government, the Government should not support the people." WOODRUFF, supra note 33, at 40, 86-87. Citing Cleveland's veto, Hoover withheld his support for drought relief in 1930-31, forcing a legislative compromise that provided feed for animals but not humans. Hoover was concerned about preserving private philanthropy and local initiative (as well as forestalling the adoption of federal unemployment relief). He only tangentially opposed federal relief on constitutional grounds, as an invasion of states' rights. See Herbert Hoover, Statement to Congress on Relief, February 3, 1931 , reprinted in RAY L. WILBUR & ARTHUR M. HYDE, THE HOOVER POLICIES 376 (1937); WOODRUFF, supra note 33, at 86-87.
230. See, e.g., 2 CONG. REC. 3151 (1874) (statement of Rep. Morey) (noting that while Congress was out of session, President Grant "considered himself authorized to order the issue of rations to the suffering people of Chicago when that city was devastated by fire"). Grant also provided food and clothing during the yellow fever epidemics in the South the previous summer.
231. See, e.g., An Act for the relief of the citizens of Venezuela, 12 ANNALS OF CONG. 228, 1378 (1812). The only debate on relief for the earthquake in Caracas was to increase the amount, from $30,000 to $50,000, which was then adopted by unanimous joint consent of both houses. See id. See also An Act for the remission of duties on eleven hogsheads of coffee which had been destroyed by fire, 3 ANNALS OF CONG. 86, 91-92 (1794); Remission of duties on distilled spirits destroyed by fire, 3 ANNALS OF CONG. 767 (1794); An Act for the Relief of Certain Creek Indians, ch. 68, 3 Stat. 191 (1817); 15 ANNALS OF CONG. 406 (1817).
232. Despite extensive debate regarding the relief of the Whiskey Rebellion, there was no mention of the Constitution. 3 ANNALS OF CONG. 984-1002 (1794). Similarly, in three years of persistent debate over relief following the War of 1812, there was no suggestion that Congress lacked the power to provide the relief sought. This was all the more surprising given that it was acknowledged in debate that the relief provided by Congress was no more than "a charitable affair." 14 ANNALS OF CONG. 387 (1816) (statement of Rep. Randolph).
233. See, e.g., 3 ANNALS OF CONG. 614-15, 689-95 (1794) (denying relief for distress resulting from Revolutionary War).
234. See, e.g., S.J. Res. 28, 41st Cong., 16 Stat. 596 (1871) (transport of food to France and Germany); H.R.J. Res. 29, 40th Cong., 15 Stat. 28 (1867) (transfer of $50,000 from Freedmen's Bureau to seed distribution for South); H.R.J. Res. 28, 40th Cong., 15 Stat. 28 (1867) (distribution of food through the Freedman's Bureau); H.R.J. Res. 17, 40th Cong., 15 Stat. 24 (1867) (relief for the South); H.R.J. Res. 92, 39th Cong., 14 Stat. 369 (1866) (relief for fire in Portland, Maine). When the Constitution was mentioned at all during this period, the comments were half-hearted and quite probably insincere. For example, during the brief debate on the appropriation of $190,000 for relief due to flooding of the Mississippi River, Representative Cox of New York remarked that he thought the proposal was "a little outside the scope of our legislation." However, the remainder of his comment suggests that he raised this objection only to create the possibility of relieving his own district from the disaster it was experiencing: "Why do we not assist the forty thousand suffering and starving poor of the city of New York?" 2 CONG. REC. 3151 (1874).
235. See 4 ANNALS OF CONG. 1719-27 (1796).
236. See 3 CONG. DEB. 747-773 (1827).
237. See 3 ANNALS OF CONG. 169-173 (1794). Eventually, every white person on the island was either killed or forced to flee. See generally, ARTHUR L. STINCHCOMBE, SUGAR ISLAND SLAVERY IN THE AGE OF ENLIGHTENMENT: THE POLITICAL ECONOMY OF THE CARIBBEAN WORLD 231-55 (1995).
238. In addition, two cases involved minor debates regarding the constitutionality of relief. One was a bill, which passed, to provide lifetime pensions to the four daughters of the late French citizen and Revolutionary War hero Count de Grasse after their plantation in Cape Francois was destroyed during the slave revolt. See 5 ANNALS OF CONG. 794 (1798). The other was during discussion of the rejected petition for a federal loan to assist a failing glass factory. See 1 ANNALS OF CONG. 1686 (1790).
239. See 3 CONG. DEB. 752-773 (1827).
240. See An Act for the relief of the indigent sufferers by the fire at Alexandria, ch. 3, 6 Stat. 1 (1827).
241. See U.S. CONST, art. I, § 8, cl. 1.
242. See U.S. CONST, art. I, § 8, cl. 18.
243. See U.S. CONST, art. I, § 8, cl. 17.
244. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 344 (1819).
245. U.S. CONST. art. I, § 8, cl. 18.
246. 17 U.S. (4 Wheat.) at 325. Marshall interpreted the Necessary and Proper Clause to extend beyond the enumerated powers of Article I: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. Id at 421. There was even a slight hint in McCulloch that the Constitution could support congressional spending for disaster relief, because it was "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." Id. at 415 (emphasis added).
247. At one point, sensing that the debate was more about federalism than fire, Representative Cambreleng proclaimed that "this was not the time, nor the occasion, to fight the battles of the Constitution." Even if he doubted, "he would at once cast his doubts aside, and extend relief to his suffering fellow citizens." 3 CONG. DEB. 763 (1827).
248. Id. at 767 (statement of Rep. Johnson).