Welfare devolution and state constitutions

Fordham Law Review

Volumn 67, Issue 4, 1999, Pages 1403-1433

  Hershkoff, Helen ^a  

^a NONE

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EID: 0033459350     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (256)

1. President Bill Clinton came to the White House on a campaign promise to "end welfare as we know it." See Jason DeParle, The Clinton Welfare Bill: A Long, Stormy Journey, N.Y. Times, July 15, 1994, at Al. Although welfare includes many important government programs, it is frequently a shorthand for AFDC, formerly codified as Title IV of the Social Security Act, 42 U.S.C. §§ 601-17 (1994). In 1993, over 14 million people, including 9.5 million children, received AFDC benefits. See Staff of House Comm. on Ways and Means, 103d Cong., 2d Sess., Overview of Entitlement Programs: Background Material and Data on Programs within the Jurisdiction of the Committee on Ways and Means 325 (Comm. Print 1994).
2. Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 42 U.S.C.) (repealing the AFDC program). See generally Helen Hershkoff & Stephen Loffredo, The Rights of the Poor 32-54 & nn.177-289, 98-105 & nn.495-537 (1997) (discussing the basic features of the 1996 Act and how they are likely to affect state welfare programs).
3. See Charles C. Brown & Wallace E. Oates, Assistance to the Poor in a Federal System, 32 J. Pub. Econ. 307, 327-29 (1987) (presenting a normative argument in favor of a national, centralized approach to welfare programs).
4. Compare Paul E. Peterson, Devolution's Price, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition 111, 120 (Yale L. & Pol'y Rev. & Yale J. on Reg. eds., 1996) (predicting that "[s]tates will be under great fiscal pressure to race to the bottom" in their provision of Medicaid and income support benefits), with F.H. Buckley & Margaret F. Brinig, Welfare Magnets: The Race for the Top, 5 Sup. Ct. Econ. Rev. 141, 141-44, 176-77 (1997) (suggesting that the availability of federal funding allows states to externalize welfare costs and thus engage in a race to the top). For descriptions of how some states have redesigned their assistance programs under the 1996 Act, see U.S. Gen. Acct. Off., Welfare Reform: State and Local Responses to Restricting Food Stamp Benefits (1997) (examining state and local responses to limitations imposed on the receipt of food stamps under the 1996 Act).
5. Compare Paul E. Peterson, Devolution's Price, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition 111, 120 (Yale L. & Pol'y Rev. & Yale J. on Reg. eds., 1996) (predicting that "[s]tates will be under great fiscal pressure to race to the bottom" in their provision of Medicaid and income support benefits), with F.H. Buckley & Margaret F. Brinig, Welfare Magnets: The Race for the Top, 5 Sup. Ct. Econ. Rev. 141, 141-44, 176-77 (1997) (suggesting that the availability of federal funding allows states to externalize welfare costs and thus engage in a race to the top). For descriptions of how some states have redesigned their assistance programs under the 1996 Act, see U.S. Gen. Acct. Off., Welfare Reform: State and Local Responses to Restricting Food Stamp Benefits (1997) (examining state and local responses to limitations imposed on the receipt of food stamps under the 1996 Act).
6. For a description of state welfare reforms prior to 1996, see Mary Bryna Sanger, Welfare Reform Within a Changing Context: Redefining the Terms of the Debate, 23 Fordham Urb. L.J. 273, 308-10 (1996) (discussing the AFDC waiver process).
7. See, e.g., Stephen Loffredo, "If You Ain't Got the Do, Re, Mi": The Commerce Clause and State Residence Restrictions on Welfare, 11 Yale L. & Pol'y Rev. 147, 190-99 (1993) (analyzing under the Commerce Clause "two-tier" welfare systems that cap benefits paid to new state residents); Nancy Morawetz, A Due Process Primer: Litigating Government Benefit Cases in the Block Grant Era, 30 Clearinghouse Rev. 97 (1996) (discussing the availability of due process arguments under a block grant program).
8. See, e.g., Stephen Loffredo, "If You Ain't Got the Do, Re, Mi": The Commerce Clause and State Residence Restrictions on Welfare, 11 Yale L. & Pol'y Rev. 147, 190- 99 (1993) (analyzing under the Commerce Clause "two-tier" welfare systems that cap benefits paid to new state residents); Nancy Morawetz, A Due Process Primer: Litigating Government Benefit Cases in the Block Grant Era, 30 Clearinghouse Rev. 97 (1996) (discussing the availability of due process arguments under a block grant program).
9. For accounts of federal litigation efforts to establish a federal constitutional right to subsistence, see, for example, Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement 1960-1973, at 56-145 (1993); Aryeh Neier, Only Judgment: The Limits of Litigation in Social Change 130-40 (1982); and Barbara Sard, The Role of the Courts in Welfare Reform, 22 Clearinghouse Rev. 367, 368-81 (1988).
10. For accounts of federal litigation efforts to establish a federal constitutional right to subsistence, see, for example, Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement 1960-1973, at 56-145 (1993); Aryeh Neier, Only Judgment: The Limits of Litigation in Social Change 130-40 (1982); and Barbara Sard, The Role of the Courts in Welfare Reform, 22 Clearinghouse Rev. 367, 368-81 (1988).
11. For accounts of federal litigation efforts to establish a federal constitutional right to subsistence, see, for example, Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement 1960-1973, at 56-145 (1993); Aryeh Neier, Only Judgment: The Limits of Litigation in Social Change 130-40 (1982); and Barbara Sard, The Role of the Courts in Welfare Reform, 22 Clearinghouse Rev. 367, 368-81 (1988).
12. Compare Donald L. Horowitz, The Courts and Social Policy 17-19 (1977) (emphasizing the judiciary's lack of institutional capacity), and Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 9-36 (1981) (concluding that courts are constrained in their abilities to generate social reform), with Malcolm M. Feeley & Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons 1-4 (1998) (defending the legitimacy of judicial policy making), and R. Shep Melnick, Between the Lines: Interpreting Welfare Rights 23-40 (1994) (discussing the policy making role of courts in interpreting welfare statutes).
13. Compare Donald L. Horowitz, The Courts and Social Policy 17-19 (1977) (emphasizing the judiciary's lack of institutional capacity), and Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 9-36 (1981) (concluding that courts are constrained in their abilities to generate social reform), with Malcolm M. Feeley & Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons 1-4 (1998) (defending the legitimacy of judicial policy making), and R. Shep Melnick, Between the Lines: Interpreting Welfare Rights 23-40 (1994) (discussing the policy making role of courts in interpreting welfare statutes).
14. Compare Donald L. Horowitz, The Courts and Social Policy 17-19 (1977) (emphasizing the judiciary's lack of institutional capacity), and Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 9-36 (1981) (concluding that courts are constrained in their abilities to generate social reform), with Malcolm M. Feeley & Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons 1-4 (1998) (defending the legitimacy of judicial policy making), and R. Shep Melnick, Between the Lines: Interpreting Welfare Rights 23-40 (1994) (discussing the policy making role of courts in interpreting welfare statutes).
15. Compare Donald L. Horowitz, The Courts and Social Policy 17-19 (1977) (emphasizing the judiciary's lack of institutional capacity), and Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 9-36 (1981) (concluding that courts are constrained in their abilities to generate social reform), with Malcolm M. Feeley & Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons 1-4 (1998) (defending the legitimacy of judicial policy making), and R. Shep Melnick, Between the Lines: Interpreting Welfare Rights 23-40 (1994) (discussing the policy making role of courts in interpreting welfare statutes).
16. See Arlo Chase, Maintaining Procedural Protections for Welfare Recipients: Defining Property for the Due Process Clause, 23 N.Y.U. Rev. L. & Soc. Change 571, 572 (1997) (contending that federal due process analysis "should incorporate the importance of the benefit at issue"); Michelle L. VanWiggeren, Comment, Experimenting with Block Grants and Temporary Assistance: The Attempt to Transform Welfare by Altering Federal-State Relations and Recipients' Due Process Rights, 46 Emory L.J. 1327, 1357-62 (1997) (discussing the effect of the 1996 Act on the availability of due process protections for poor people).
17. See Arlo Chase, Maintaining Procedural Protections for Welfare Recipients: Defining Property for the Due Process Clause, 23 N.Y.U. Rev. L. & Soc. Change 571, 572 (1997) (contending that federal due process analysis "should incorporate the importance of the benefit at issue"); Michelle L. VanWiggeren, Comment, Experimenting with Block Grants and Temporary Assistance: The Attempt to Transform Welfare by Altering Federal-State Relations and Recipients' Due Process Rights, 46 Emory L.J. 1327, 1357-62 (1997) (discussing the effect of the 1996 Act on the availability of due process protections for poor people).
18. See Adam S. Cohen, More Myths of Parity: State Court Forums and Constitutional Actions for the Right to Shelter, 38 Emory L.J. 615, 633 (1989) (arguing that since 1970, "changes in the composition of the Court . . . have made the prospect [of a federal constitutional welfare right] even more unlikely now"); Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio St. L.J. 731, 734 (1997) (predicting that "no jurist who supports constitutional welfare rights is likely to be appointed to the Court in the near future"). More generally, some commentators argue that because of changes in judicial appointments and other factors, "the federal courts have become inhospitable to claims of poor people." Matthew Diller, Poverty Lawyering in the Golden Age, 93 Mich. L. Rev. 1401, 1420 (1995) (reviewing Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement 1960-1973 (1993)).
19. See Adam S. Cohen, More Myths of Parity: State Court Forums and Constitutional Actions for the Right to Shelter, 38 Emory L.J. 615, 633 (1989) (arguing that since 1970, "changes in the composition of the Court . . . have made the prospect [of a federal constitutional welfare right] even more unlikely now"); Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio St. L.J. 731, 734 (1997) (predicting that "no jurist who supports constitutional welfare rights is likely to be appointed to the Court in the near future"). More generally, some commentators argue that because of changes in judicial appointments and other factors, "the federal courts have become inhospitable to claims of poor people." Matthew Diller, Poverty Lawyering in the Golden Age, 93 Mich. L. Rev. 1401, 1420 (1995) (reviewing Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement 1960-1973 (1993)).
20. See Adam S. Cohen, More Myths of Parity: State Court Forums and Constitutional Actions for the Right to Shelter, 38 Emory L.J. 615, 633 (1989) (arguing that since 1970, "changes in the composition of the Court . . . have made the prospect [of a federal constitutional welfare right] even more unlikely now"); Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio St. L.J. 731, 734 (1997) (predicting that "no jurist who supports constitutional welfare rights is likely to be appointed to the Court in the near future"). More generally, some commentators argue that because of changes in judicial appointments and other factors, "the federal courts have become inhospitable to claims of poor people." Matthew Diller, Poverty Lawyering in the Golden Age, 93 Mich. L. Rev. 1401, 1420 (1995) (reviewing Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement 1960-1973 (1993)).
21. See Adam S. Cohen, More Myths of Parity: State Court Forums and Constitutional Actions for the Right to Shelter, 38 Emory L.J. 615, 633 (1989) (arguing that since 1970, "changes in the composition of the Court . . . have made the prospect [of a federal constitutional welfare right] even more unlikely now"); Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and Liberal Constitutional Theory, 58 Ohio St. L.J. 731, 734 (1997) (predicting that "no jurist who supports constitutional welfare rights is likely to be appointed to the Court in the near future"). More generally, some commentators argue that because of changes in judicial appointments and other factors, "the federal courts have become inhospitable to claims of poor people." Matthew Diller, Poverty Lawyering in the Golden Age, 93 Mich. L. Rev. 1401, 1420 (1995) (reviewing Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement 1960-1973 (1993)).
22. See Peter H. Schuck, Introduction: Some Reflections on the Federalism Debate, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition, supra note 4, at 1, 11-14 (assuming diverse regional preferences with regard to welfare spending); Stephen D. Sugarman, Welfare Reform and the Cooperative Federalism of America's Public Income Transfer Programs, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition, supra note 4, at 123, 132 (contending that "state-to-state benefit level differences importantly reveal . . . differences in 'taste'"); cf. Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum. L. Rev. 847, 854 (1979) (contending that "[d]espite the homogenizing effects of media and mobility on twentieth-century American life, the existence of separate state and local governmental units still provides avenues for expression of the variations in style in different parts of the country").
23. See Peter H. Schuck, Introduction: Some Reflections on the Federalism Debate, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition, supra note 4, at 1, 11-14 (assuming diverse regional preferences with regard to welfare spending); Stephen D. Sugarman, Welfare Reform and the Cooperative Federalism of America's Public Income Transfer Programs, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition, supra note 4, at 123, 132 (contending that "state-to-state benefit level differences importantly reveal . . . differences in 'taste'"); cf. Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum. L. Rev. 847, 854 (1979) (contending that "[d]espite the homogenizing effects of media and mobility on twentieth-century American life, the existence of separate state and local governmental units still provides avenues for expression of the variations in style in different parts of the country").
24. See Peter H. Schuck, Introduction: Some Reflections on the Federalism Debate, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition, supra note 4, at 1, 11-14 (assuming diverse regional preferences with regard to welfare spending); Stephen D. Sugarman, Welfare Reform and the Cooperative Federalism of America's Public Income Transfer Programs, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition, supra note 4, at 123, 132 (contending that "state-to-state benefit level differences importantly reveal . . . differences in 'taste'"); cf. Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum. L. Rev. 847, 854 (1979) (contending that "[d]espite the homogenizing effects of media and mobility on twentieth-century American life, the existence of separate state and local governmental units still provides avenues for expression of the variations in style in different parts of the country").
25. Daniel B. Rodriguez, State Constitutional Theory and Its Prospects, 28 N.M. L. Rev. 271, 272 (1998) (observing "that state constitutions differ fundamentally from the federal constitution in their respective histories, their political theories, and the intra-state circumstances to which they respond.").
26. See, e.g., Judith S. Kaye, Dual Constitutionalism in Practice and Principle, 61 St. John's L. Rev. 399, 409 (1987) (referring to the "distinctive New York character" of the New York Constitution, and characterizing it as "a product and expression of this State"). Some commentators question whether state constitutions provide meaningful insight into the values and character of a local community.
27. Compare Daniel J. Elazar, The Principles and Traditions Underlying State Constitutions, 12 Publius: J. Federalism 11, 12 (1982) (contending that state constitutions reflect the characters and values of a people),
28. with James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 765 (1992) (arguing that state constitutions offer no "conception of the character or fundamental values of the people" of a state).
29. See Louis Henkin, Economic Rights Under the United States Constitution, 32 Colum. J. Transnat'l L. 97, 122-23 (1994) (comparing positive economic rights under federal and state constitutions).
30. Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983). But cf. Cass R. Sunstein, The Partial Constitution 69-71 (1993) (arguing that it is "peculiar . . . to say that the Constitution does not guarantee 'affirmative rights'" in light of the Takings Clause, property rules, and judicial enforcement of contracts).
31. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196 (1989). But see Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271, 2346-47 (1990) (criticizing the negative model of federal constitutional rights).
32. Positive rights, sometimes referred to as second-generation rights, refer to affirmative claims on government to meet social and economic needs. The literature distinguishes positive from so-called negative or first-generation rights, which afford freedom from government intrusion. See Charles Fried, Right and Wrong 110 (1978) (stating that "[a] positive right is a claim to something . . . while a negative right is a right that something not be done to one"); see also, e.g., Burt Neuborne, State Constitutions and the Evolution of Positive Rights, 20 Rutgers L.J. 881, 893-95 & nn.60-82 (1989) (reviewing state constitutional provisions affecting the poor).
33. Positive rights, sometimes referred to as second-generation rights, refer to affirmative claims on government to meet social and economic needs. The literature distinguishes positive from so-called negative or first-generation rights, which afford freedom from government intrusion. See Charles Fried, Right and Wrong 110 (1978) (stating that "[a] positive right is a claim to something . . . while a negative right is a right that something not be done to one"); see also, e.g., Burt Neuborne, State Constitutions and the Evolution of Positive Rights, 20 Rutgers L.J. 881, 893-95 & nn.60-82 (1989) (reviewing state constitutional provisions affecting the poor).
34. See Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1, 20 (1995) ("[A]s is evident in the area of state constitutional law . . . state courts regularly, openly, and legitimately speak the language of the common law whereas federal courts do not.").
35. The "New Judicial Federalism" refers to the revival of interest in state constitutions as a source of protection for individual rights. See Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va. L. Rev. 389, 389 (1998) (contending that "[s]tate courts' increased attention to state constitutions, a development labeled the 'new judicial federalism,' represents one aspect of a broader interest in states and state legal systems"). Earlier works on the "New Judicial Federalism" include: William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 498-503 (1977) (issuing a call for state court development of state constitutional discourse); Vern Countryman, Why a State Bill of Rights?, 45 Wash. L. Rev. 454, 470-74 (1970) (urging courts and commentators to pay increased attention to state-based liberties); David J. Fine et al., Project Report: Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L. L. Rev. 271 app. at 323-50 (1973) (discussing the emerging importance of state constitutions for the protection of individual liberty); Robert Force, State "Bills of Rights": A Case of Neglect and the Need for a Renaissance, 3 Val. U. L. Rev. 125, 162-64 (1969) (arguing in favor of greater attention to state constitutions); and Hans A. Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or. L. Rev. 125 (1970) (emphasizing state constitutions as independent bases for judicial policy making); see also Paul A. Freund, On Understanding the Supreme Court 116 (Greenwood Press 1977) (1949) (predicting that "constitutional litigation over state laws will be concentrated more and more in state courts under state constitutional provisions, and state constitutional law may become of dominant importance").
36. The "New Judicial Federalism" refers to the revival of interest in state constitutions as a source of protection for individual rights. See Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va. L. Rev. 389, 389 (1998) (contending that "[s]tate courts' increased attention to state constitutions, a development labeled the 'new judicial federalism,' represents one aspect of a broader interest in states and state legal systems"). Earlier works on the "New Judicial Federalism" include: William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 498-503 (1977) (issuing a call for state court development of state constitutional discourse); Vern Countryman, Why a State Bill of Rights?, 45 Wash. L. Rev. 454, 470-74 (1970) (urging courts and commentators to pay increased attention to state-based liberties); David J. Fine et al., Project Report: Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L. L. Rev. 271 app. at 323-50 (1973) (discussing the emerging importance of state constitutions for the protection of individual liberty); Robert Force, State "Bills of Rights": A Case of Neglect and the Need for a Renaissance, 3 Val. U. L. Rev. 125, 162-64 (1969) (arguing in favor of greater attention to state constitutions); and Hans A. Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or. L. Rev. 125 (1970) (emphasizing state constitutions as independent bases for judicial policy making); see also Paul A. Freund, On Understanding the Supreme Court 116 (Greenwood Press 1977) (1949) (predicting that "constitutional litigation over state laws will be concentrated more and more in state courts under state constitutional provisions, and state constitutional law may become of dominant importance").
37. The "New Judicial Federalism" refers to the revival of interest in state constitutions as a source of protection for individual rights. See Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va. L. Rev. 389, 389 (1998) (contending that "[s]tate courts' increased attention to state constitutions, a development labeled the 'new judicial federalism,' represents one aspect of a broader interest in states and state legal systems"). Earlier works on the "New Judicial Federalism" include: William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 498-503 (1977) (issuing a call for state court development of state constitutional discourse); Vern Countryman, Why a State Bill of Rights?, 45 Wash. L. Rev. 454, 470-74 (1970) (urging courts and commentators to pay increased attention to state-based liberties); David J. Fine et al., Project Report: Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L. L. Rev. 271 app. at 323-50 (1973) (discussing the emerging importance of state constitutions for the protection of individual liberty); Robert Force, State "Bills of Rights": A Case of Neglect and the Need for a Renaissance, 3 Val. U. L. Rev. 125, 162-64 (1969) (arguing in favor of greater attention to state constitutions); and Hans A. Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or. L. Rev. 125 (1970) (emphasizing state constitutions as independent bases for judicial policy making); see also Paul A. Freund, On Understanding the Supreme Court 116 (Greenwood Press 1977) (1949) (predicting that "constitutional litigation over state laws will be concentrated more and more in state courts under state constitutional provisions, and state constitutional law may become of dominant importance").
38. The "New Judicial Federalism" refers to the revival of interest in state constitutions as a source of protection for individual rights. See Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va. L. Rev. 389, 389 (1998) (contending that "[s]tate courts' increased attention to state constitutions, a development labeled the 'new judicial federalism,' represents one aspect of a broader interest in states and state legal systems"). Earlier works on the "New Judicial Federalism" include: William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 498-503 (1977) (issuing a call for state court development of state constitutional discourse); Vern Countryman, Why a State Bill of Rights?, 45 Wash. L. Rev. 454, 470-74 (1970) (urging courts and commentators to pay increased attention to state-based liberties); David J. Fine et al., Project Report: Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L. L. Rev. 271 app. at 323-50 (1973) (discussing the emerging importance of state constitutions for the protection of individual liberty); Robert Force, State "Bills of Rights": A Case of Neglect and the Need for a Renaissance, 3 Val. U. L. Rev. 125, 162-64 (1969) (arguing in favor of greater attention to state constitutions); and Hans A. Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or. L. Rev. 125 (1970) (emphasizing state constitutions as independent bases for judicial policy making); see also Paul A. Freund, On Understanding the Supreme Court 116 (Greenwood Press 1977) (1949) (predicting that "constitutional litigation over state laws will be concentrated more and more in state courts under state constitutional provisions, and state constitutional law may become of dominant importance").
39. The "New Judicial Federalism" refers to the revival of interest in state constitutions as a source of protection for individual rights. See Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va. L. Rev. 389, 389 (1998) (contending that "[s]tate courts' increased attention to state constitutions, a development labeled the 'new judicial federalism,' represents one aspect of a broader interest in states and state legal systems"). Earlier works on the "New Judicial Federalism" include: William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 498-503 (1977) (issuing a call for state court development of state constitutional discourse); Vern Countryman, Why a State Bill of Rights?, 45 Wash. L. Rev. 454, 470-74 (1970) (urging courts and commentators to pay increased attention to state-based liberties); David J. Fine et al., Project Report: Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L. L. Rev. 271 app. at 323-50 (1973) (discussing the emerging importance of state constitutions for the protection of individual liberty); Robert Force, State "Bills of Rights": A Case of Neglect and the Need for a Renaissance, 3 Val. U. L. Rev. 125, 162-64 (1969) (arguing in favor of greater attention to state constitutions); and Hans A. Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or. L. Rev. 125 (1970) (emphasizing state constitutions as independent bases for judicial policy making); see also Paul A. Freund, On Understanding the Supreme Court 116 (Greenwood Press 1977) (1949) (predicting that "constitutional litigation over state laws will be concentrated more and more in state courts under state constitutional provisions, and state constitutional law may become of dominant importance").
40. The "New Judicial Federalism" refers to the revival of interest in state constitutions as a source of protection for individual rights. See Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va. L. Rev. 389, 389 (1998) (contending that "[s]tate courts' increased attention to state constitutions, a development labeled the 'new judicial federalism,' represents one aspect of a broader interest in states and state legal systems"). Earlier works on the "New Judicial Federalism" include: William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 498-503 (1977) (issuing a call for state court development of state constitutional discourse); Vern Countryman, Why a State Bill of Rights?, 45 Wash. L. Rev. 454, 470-74 (1970) (urging courts and commentators to pay increased attention to state-based liberties); David J. Fine et al., Project Report: Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L. L. Rev. 271 app. at 323-50 (1973) (discussing the emerging importance of state constitutions for the protection of individual liberty); Robert Force, State "Bills of Rights": A Case of Neglect and the Need for a Renaissance, 3 Val. U. L. Rev. 125, 162-64 (1969) (arguing in favor of greater attention to state constitutions); and Hans A. Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or. L. Rev. 125 (1970) (emphasizing state constitutions as independent bases for judicial policy making); see also Paul A. Freund, On Understanding the Supreme Court 116 (Greenwood Press 1977) (1949) (predicting that "constitutional litigation over state laws will be concentrated more and more in state courts under state constitutional provisions, and state constitutional law may become of dominant importance").
41. The "New Judicial Federalism" refers to the revival of interest in state constitutions as a source of protection for individual rights. See Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 Va. L. Rev. 389, 389 (1998) (contending that "[s]tate courts' increased attention to state constitutions, a development labeled the 'new judicial federalism,' represents one aspect of a broader interest in states and state legal systems"). Earlier works on the "New Judicial Federalism" include: William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 498-503 (1977) (issuing a call for state court development of state constitutional discourse); Vern Countryman, Why a State Bill of Rights?, 45 Wash. L. Rev. 454, 470-74 (1970) (urging courts and commentators to pay increased attention to state-based liberties); David J. Fine et al., Project Report: Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L. L. Rev. 271 app. at 323-50 (1973) (discussing the emerging importance of state constitutions for the protection of individual liberty); Robert Force, State "Bills of Rights": A Case of Neglect and the Need for a Renaissance, 3 Val. U. L. Rev. 125, 162-64 (1969) (arguing in favor of greater attention to state constitutions); and Hans A. Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 Or. L. Rev. 125 (1970) (emphasizing state constitutions as independent bases for judicial policy making); see also Paul A. Freund, On Understanding the Supreme Court 116 (Greenwood Press 1977) (1949) (predicting that "constitutional litigation over state laws will be concentrated more and more in state courts under state constitutional provisions, and state constitutional law may become of dominant importance").
42. See Daan Braveman, Children, Poverty and State Constitutions, 38 Emory L.J. 577, 595-96 (1989) (collecting state constitutional provisions and cases relating to "the care of the needy or the protection of the health of the people").
43. See Linda M. Vanzi, Freedom at Home: State Constitutions and Medicaid Funding for Abortions, 26 N.M. L. Rev. 433, 441-45 (1996) (discussing state constitutional challenges to state statutes restricting public funding for abortion).
44. See Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 Vand. L. Rev. 100, 185-94 (1995) (summarizing state constitutional education cases).
45. See Norma Rotunno, Note, State Constitutional Social Welfare Provisions and the Right to Housing, 1 Hofstra L. & Pol'y Symp. 111, 123-27 (1996) (collecting cases seeking to enforce a right to housing under state constitutional social welfare provisions).
46. See David Stout, La Guardia's Legacy: A Duty to the Needy, Federal Welfare Shift Spotlights Unusual Amendment to State Constitution, N.Y. Times, Sept. 8, 1996, at 41 (discussing the New York Constitution and its implications for welfare reform).
47. See Rodriguez, supra note 12, at 272-73 (contending that "the pertinence of state constitutionalism seems unavoidable, and even urgent" in the light of devolution); see also Paul W. Kahn, State Constitutionalism and the Problems of Fairness, 30 Val. U. L. Rev. 459, 464-65 (1996) (predicting the mounting of legal challenges under state constitutions to state welfare reforms).
48. See Rodriguez, supra note 12, at 272-73 (contending that "the pertinence of state constitutionalism seems unavoidable, and even urgent" in the light of devolution); see also Paul W. Kahn, State Constitutionalism and the Problems of Fairness, 30 Val. U. L. Rev. 459, 464-65 (1996) (predicting the mounting of legal challenges under state constitutions to state welfare reforms).
49. See, e.g., Gardner, supra note 13, at 770 (disparaging state constitutional practice in favor of "its far more successful cousin, American federal constitutional discourse"); Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147, 1147 (1993) (urging state constitutionalism to draw from "American constitutionalism" in lieu of unique state sources); cf. Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses § 7-5(b) (2d ed. 1996) (stating that "many state law opinions continue to depend heavily on interpretations of the federal Bill of Rights as either a point of departure or as a stopping point"). But cf. Richard Briffault, The Item Veto in State Courts, 66 Temp. L. Rev. 1171, 1171 (1993) (criticizing the exclusive federal focus of state constitutional scholarship); Hans A. Linde, E Pluribus - Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 166 (1984) (urging that "the theory and methods of contemporary Supreme Court opinions do not furnish the only proper model for decisions in the state courts"); G. Alan Tarr, Constitutional Theory and State Constitutional Interpretation, 22 Rutgers L.J. 841, 861 (1991) (discussing the need for scholars "to reflect on the implications of . . . [state constitutional] distinctiveness for state constitutional interpretation").
50. See, e.g., Gardner, supra note 13, at 770 (disparaging state constitutional practice in favor of "its far more successful cousin, American federal constitutional discourse"); Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147, 1147 (1993) (urging state constitutionalism to draw from "American constitutionalism" in lieu of unique state sources); cf. Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses § 7-5(b) (2d ed. 1996) (stating that "many state law opinions continue to depend heavily on interpretations of the federal Bill of Rights as either a point of departure or as a stopping point"). But cf. Richard Briffault, The Item Veto in State Courts, 66 Temp. L. Rev. 1171, 1171 (1993) (criticizing the exclusive federal focus of state constitutional scholarship); Hans A. Linde, E Pluribus - Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 166 (1984) (urging that "the theory and methods of contemporary Supreme Court opinions do not furnish the only proper model for decisions in the state courts"); G. Alan Tarr, Constitutional Theory and State Constitutional Interpretation, 22 Rutgers L.J. 841, 861 (1991) (discussing the need for scholars "to reflect on the implications of . . . [state constitutional] distinctiveness for state constitutional interpretation").
51. See, e.g., Gardner, supra note 13, at 770 (disparaging state constitutional practice in favor of "its far more successful cousin, American federal constitutional discourse"); Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147, 1147 (1993) (urging state constitutionalism to draw from "American constitutionalism" in lieu of unique state sources); cf. Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses § 7-5(b) (2d ed. 1996) (stating that "many state law opinions continue to depend heavily on interpretations of the federal Bill of Rights as either a point of departure or as a stopping point"). But cf. Richard Briffault, The Item Veto in State Courts, 66 Temp. L. Rev. 1171, 1171 (1993) (criticizing the exclusive federal focus of state constitutional scholarship); Hans A. Linde, E Pluribus - Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 166 (1984) (urging that "the theory and methods of contemporary Supreme Court opinions do not furnish the only proper model for decisions in the state courts"); G. Alan Tarr, Constitutional Theory and State Constitutional Interpretation, 22 Rutgers L.J. 841, 861 (1991) (discussing the need for scholars "to reflect on the implications of . . . [state constitutional] distinctiveness for state constitutional interpretation").
52. See, e.g., Gardner, supra note 13, at 770 (disparaging state constitutional practice in favor of "its far more successful cousin, American federal constitutional discourse"); Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147, 1147 (1993) (urging state constitutionalism to draw from "American constitutionalism" in lieu of unique state sources); cf. Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses § 7-5(b) (2d ed. 1996) (stating that "many state law opinions continue to depend heavily on interpretations of the federal Bill of Rights as either a point of departure or as a stopping point"). But cf. Richard Briffault, The Item Veto in State Courts, 66 Temp. L. Rev. 1171, 1171 (1993) (criticizing the exclusive federal focus of state constitutional scholarship); Hans A. Linde, E Pluribus - Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 166 (1984) (urging that "the theory and methods of contemporary Supreme Court opinions do not furnish the only proper model for decisions in the state courts"); G. Alan Tarr, Constitutional Theory and State Constitutional Interpretation, 22 Rutgers L.J. 841, 861 (1991) (discussing the need for scholars "to reflect on the implications of . . . [state constitutional] distinctiveness for state constitutional interpretation").
53. See, e.g., Gardner, supra note 13, at 770 (disparaging state constitutional practice in favor of "its far more successful cousin, American federal constitutional discourse"); Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147, 1147 (1993) (urging state constitutionalism to draw from "American constitutionalism" in lieu of unique state sources); cf. Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses § 7-5(b) (2d ed. 1996) (stating that "many state law opinions continue to depend heavily on interpretations of the federal Bill of Rights as either a point of departure or as a stopping point"). But cf. Richard Briffault, The Item Veto in State Courts, 66 Temp. L. Rev. 1171, 1171 (1993) (criticizing the exclusive federal focus of state constitutional scholarship); Hans A. Linde, E Pluribus - Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 166 (1984) (urging that "the theory and methods of contemporary Supreme Court opinions do not furnish the only proper model for decisions in the state courts"); G. Alan Tarr, Constitutional Theory and State Constitutional Interpretation, 22 Rutgers L.J. 841, 861 (1991) (discussing the need for scholars "to reflect on the implications of . . . [state constitutional] distinctiveness for state constitutional interpretation").
54. See Helen Hershkoff, State Constitutions and Positive Rights: The Limits of Federal Rationality Review, 112 Harv. L. Rev. (forthcoming, April 1999) (manuscript, on file with the author).
55. N.Y. Const. art. XVII, § 1 (providing that "[t]he aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine"); see Hershkoff, supra note 27 (manuscript at 9-14) (discussing the illustrative importance of the New York Constitution). As a staff attorney with the Legal Aid Society of New York and then as an associate legal director of the American Civil Liberties Union, the author participated as counsel or as amicus curiae in state court lawsuits involving New York constitutional claims. See, e.g., Campaign for Fiscal Equity, Inc. v. State, 655 N.E.2d 661 (N.Y. 1995) (involving a state constitutional challenge to state funding of public schools in New York); Asian Americans for Equality v. Koch, 514 N.Y.S.2d 939 (App. Div. 1987) (rejecting a state constitutional challenge to the adoption of zoning amendments creating a special district in the Chinatown neighborhood of New York City), aff'd, 527 N.E.2d 265 (N.Y. 1988); Thrower v. Perales, 523 N.Y.S.2d 933 (Sup. Ct. 1987) (preliminarily enjoining the denial of assistance to homeless destitute persons temporarily residing in municipal shelters).
56. Tucker v. Toia, 371 N.E.2d 449, 451 (N.Y. 1977).
57. Id. at 452.
58. For example, McCain v. Koch, 484 N.Y.S.2d 985 (Sup. Ct. 1984), aff'd as modified, 502 N.Y.S.2d 720 (App. Div. 1986), rev'd, 511 N.E.2d 62 (N.Y. 1987), involved a state constitutional challenge to the quality of emergency shelter provided to homeless and destitute families. In modifying the trial court's order preliminarily enjoining compliance with minimal standards of habitability and safety, the intermediate appeals court explained: We are bound to follow the holdings of the Court of Appeals. In light of that court's holdings . . . that the adequacy of the level of welfare benefits is a matter committed to the discretion of the Legislature, we are unable to afford the plaintiffs complete and meaningful relief. The inability of courts to set even minimum standards for meeting "the legitimate needs of each recipient" . . . upon the failure of the Legislature to do so is discouraging, saddening, and disheartening. When thousands of children are put at risk in their physical and mental health, and subject to inevitable emotional scarring, because of the failure of City and State officials to provide emergency shelter for them which meets minimum standards of decency and habitability, it is time for the Court of Appeals to reexamine and, hopefully, change its prior holdings in this area. The lives and characters of the young are too precious to be dealt with in a way justified, as argued, on the ground that the government's efforts are more than token. They may be more than token, but they are inadequate. On this record and on the authority [of Court of Appeals precedent], we reluctantly conclude that Special Term erred in invoking its equitable powers to compel compliance with certain reasonable minimal standards. 502 N.Y.S.2d at 731 (citations omitted).
59. See Hershkoff, supra note 27 (manuscript at 5-7); Sarah Ramsey & Daan Braveman, "Let Them Starve": Government's Obligation to Children in Poverty, 68 Temp. L. Rev. 1607, 1628 (1995) (discussing the state courts' reliance on highly deferential federal standards in interpreting unique state constitutional welfare clauses).
60. Cf. Jonathan Feldman, Separation of Powers and Judicial Review of Positive Rights Claims: The Role of State Courts in an Era of Positive Government, 24 Rutgers L.J. 1057, 1075 (1993) (stating that federal doctrine "has proven a stumbling block for a number of state courts" in enforcing positive rights).
61. See, e.g., Ala. Const, art. IV, § 88; Cal. Const, art. 16, §§ 3, 11, art. 34; Haw. Const. art. IX, § 3; Idaho Const. art. X, § 1; Ill. Const. preamble; Ind. Const. art. 9, § 3; Kan. Const. art. 7, § 4; La. Const. art. 12, § 8; Miss. Const. art. 14, § 262; Mont. Const. art. XII, § 3(3); Nev. Const. art. 13, § 1; N.M. Const. art. IX, § 14; N.Y. Const. art. XVII, § 1; N.C. Const. art. XI, § 4; Tex. Const. art. XI, § 2; W. Va. Const. art. IX, § 2; Wyo. Const, art. VII, § 18.
62. N.Y. Const. art. XVII, § 1.
63. Tucker v. Toia, 371 N.E.2d 449, 452 (N.Y. 1977).
64. See id.
65. See generally Martin H. Redish, Judicial Review and the "Political Question," 79 Nw. U. L. Rev. 1031, 1031 (1984-85) (explaining that "[t]he so-called 'political question' doctrine postulates that there exist certain issues of constitutional law that are more effectively resolved by the political branches of government").
66. This part draws on Hershkoff, Rights and Freedoms, supra note *, at 640-42.
67. See N.Y. Const. art. XVII, § 1 ("[t]he aid, care and support of the needy . . . shall be provided by the state and by such of its subdivisions").
68. See id. ("and in such manner and by such means, as the legislature may from time to time determine").
69. Cf. Richard H. Fallon, Jr., Individual Rights and the Powers of Government, 27 Ga. L. Rev. 343, 347-60 (1993) (describing the interconnection of individual rights with government power).
70. See Dandridge v. Williams, 397 U.S. 471, 484-86 (1970) (finding no federal constitutional right to income support). Justifications for the Court's analysis can be found in Robert H. Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 Wash. U. L.Q. 695, 699-701; Richard A. Epstein, The Uncertain Quest for Welfare Rights, 1985 BYU L. Rev. 201, 217-19; Henry Paul Monaghan, The Constitution Goes to Harvard, 13 Harv. C.R.-C.L. L. Rev. 117, 128 (1978); Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 Val. U. L. Rev. 359, 377-82 (1988); Ralph K. Winter, Jr., Changing Concepts of Equality: From Equality Before the Law to the Welfare State, 1979 Wash. U. L.Q. 741, 746-55; and Ralph K. Winter, Jr., Poverty, Economic Equality, and the Equal Protection Clause, 1972 Sup. Ct. Rev. 41, 43.
71. See Dandridge v. Williams, 397 U.S. 471, 484-86 (1970) (finding no federal constitutional right to income support). Justifications for the Court's analysis can be found in Robert H. Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 Wash. U. L.Q. 695, 699-701; Richard A. Epstein, The Uncertain Quest for Welfare Rights, 1985 BYU L. Rev. 201, 217-19; Henry Paul Monaghan, The Constitution Goes to Harvard, 13 Harv. C.R.-C.L. L. Rev. 117, 128 (1978); Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 Val. U. L. Rev. 359, 377-82 (1988); Ralph K. Winter, Jr., Changing Concepts of Equality: From Equality Before the Law to the Welfare State, 1979 Wash. U. L.Q. 741, 746-55; and Ralph K. Winter, Jr., Poverty, Economic Equality, and the Equal Protection Clause, 1972 Sup. Ct. Rev. 41, 43.
72. See Dandridge v. Williams, 397 U.S. 471, 484-86 (1970) (finding no federal constitutional right to income support). Justifications for the Court's analysis can be found in Robert H. Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 Wash. U. L.Q. 695, 699-701; Richard A. Epstein, The Uncertain Quest for Welfare Rights, 1985 BYU L. Rev. 201, 217-19; Henry Paul Monaghan, The Constitution Goes to Harvard, 13 Harv. C.R.-C.L. L. Rev. 117, 128 (1978); Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 Val. U. L. Rev. 359, 377-82 (1988); Ralph K. Winter, Jr., Changing Concepts of Equality: From Equality Before the Law to the Welfare State, 1979 Wash. U. L.Q. 741, 746-55; and Ralph K. Winter, Jr., Poverty, Economic Equality, and the Equal Protection Clause, 1972 Sup. Ct. Rev. 41, 43.
73. See Dandridge v. Williams, 397 U.S. 471, 484-86 (1970) (finding no federal constitutional right to income support). Justifications for the Court's analysis can be found in Robert H. Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 Wash. U. L.Q. 695, 699-701; Richard A. Epstein, The Uncertain Quest for Welfare Rights, 1985 BYU L. Rev. 201, 217-19; Henry Paul Monaghan, The Constitution Goes to Harvard, 13 Harv. C.R.-C.L. L. Rev. 117, 128 (1978); Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 Val. U. L. Rev. 359, 377-82 (1988); Ralph K. Winter, Jr., Changing Concepts of Equality: From Equality Before the Law to the Welfare State, 1979 Wash. U. L.Q. 741, 746-55; and Ralph K. Winter, Jr., Poverty, Economic Equality, and the Equal Protection Clause, 1972 Sup. Ct. Rev. 41, 43.
74. See Dandridge v. Williams, 397 U.S. 471, 484-86 (1970) (finding no federal constitutional right to income support). Justifications for the Court's analysis can be found in Robert H. Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 Wash. U. L.Q. 695, 699-701; Richard A. Epstein, The Uncertain Quest for Welfare Rights, 1985 BYU L. Rev. 201, 217-19; Henry Paul Monaghan, The Constitution Goes to Harvard, 13 Harv. C.R.-C.L. L. Rev. 117, 128 (1978); Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 Val. U. L. Rev. 359, 377-82 (1988); Ralph K. Winter, Jr., Changing Concepts of Equality: From Equality Before the Law to the Welfare State, 1979 Wash. U. L.Q. 741, 746-55; and Ralph K. Winter, Jr., Poverty, Economic Equality, and the Equal Protection Clause, 1972 Sup. Ct. Rev. 41, 43.
75. See Dandridge v. Williams, 397 U.S. 471, 484-86 (1970) (finding no federal constitutional right to income support). Justifications for the Court's analysis can be found in Robert H. Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 Wash. U. L.Q. 695, 699-701; Richard A. Epstein, The Uncertain Quest for Welfare Rights, 1985 BYU L. Rev. 201, 217-19; Henry Paul Monaghan, The Constitution Goes to Harvard, 13 Harv. C.R.-C.L. L. Rev. 117, 128 (1978); Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 Val. U. L. Rev. 359, 377-82 (1988); Ralph K. Winter, Jr., Changing Concepts of Equality: From Equality Before the Law to the Welfare State, 1979 Wash. U. L.Q. 741, 746-55; and Ralph K. Winter, Jr., Poverty, Economic Equality, and the Equal Protection Clause, 1972 Sup. Ct. Rev. 41, 43.
76. See Dandridge v. Williams, 397 U.S. 471, 484-86 (1970) (finding no federal constitutional right to income support). Justifications for the Court's analysis can be found in Robert H. Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 Wash. U. L.Q. 695, 699-701; Richard A. Epstein, The Uncertain Quest for Welfare Rights, 1985 BYU L. Rev. 201, 217-19; Henry Paul Monaghan, The Constitution Goes to Harvard, 13 Harv. C.R.-C.L. L. Rev. 117, 128 (1978); Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 Val. U. L. Rev. 359, 377-82 (1988); Ralph K. Winter, Jr., Changing Concepts of Equality: From Equality Before the Law to the Welfare State, 1979 Wash. U. L.Q. 741, 746-55; and Ralph K. Winter, Jr., Poverty, Economic Equality, and the Equal Protection Clause, 1972 Sup. Ct. Rev. 41, 43.
77. Barsky v. Board of Regents, 347 U.S. 442, 472-73 (1954).
78. Scholars put forward a range of normative arguments in favor of welfare rights. The classic formulation remains Frank I, Michelman, The Supreme Court, 1968 Term - Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 19-39 (1969); see also See Hershkoff, supra note 27 (manuscript at 3 n.9) (collecting literature).
79. Scholars put forward a range of normative arguments in favor of welfare rights. The classic formulation remains Frank I, Michelman, The Supreme Court, 1968 Term - Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 19-39 (1969); see also See Hershkoff, supra note 27 (manuscript at 3 n.9) (collecting literature).
80. See Kent Greenawalt, Policy, Rights, and Judicial Decision, 11 Ga. L. Rev. 991, 1004 (1977) (discussing the democratic defense of legislative policy making).
81. Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 4 (1969).
82. See John Bell, Discretionary Decision-Making: A Jurisprudential View, in The Uses of Discretion 89, 93 (Keith Hawkins ed., 1992) (stating that "[a]lmost any definition of discretion starts with the notion of choice").
83. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803) ("If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.").
84. Although I do not suggest that Article XVII's text provides an exclusive entry point to its constitutional meaning, the language of a written legal document deserves attention in legal interpretation. See Frederick Schauer, Constitutional Invocations, 65 Fordham L. Rev. 1295, 1296 (1997) (discussing different theoretical approaches to "variations in textual style or degree of detail").
85. See Michael Heise, State Constitutions, School Finance Litigation, and the "Third Wave": From Equity to Adequacy, 68 Temp. L. Rev. 1151, 1153-66 (1995) (discussing school finance litigation from the 1970s to the present).
86. Mass. Const. Part II, ch. 5, § 2.
87. Id.
88. Id. The Massachusetts Constitution's education clause provides: Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and
89. See McDuffy v. Secretary of Educ., 615 N.E.2d 516, 555 (Mass. 1993) (holding "that the provisions of Part II, c. 5, § 2, of the Massachusetts Constitution impose an enforceable duty on . . . this Commonwealth to provide education in the public schools for the children there enrolled, whether they be rich or poor and without regard to the fiscal capacity of the community. . . ."); see also Enrich, supra note 22, at 141-42 (discussing the McDuffy rationale); Alexandra Natapoff, 1993: The Year of Living Dangerously: State Courts Expand the Right to Education, 92 Educ. L. Rep. 755, 767 (1994) (same). As an associate legal director of the American Civil Liberties Union, the author participated in the McDuffy case as amicus curiae in support of plaintiffs.
90. See McDuffy v. Secretary of Educ., 615 N.E.2d 516, 555 (Mass. 1993) (holding "that the provisions of Part II, c. 5, § 2, of the Massachusetts Constitution impose an enforceable duty on . . . this Commonwealth to provide education in the public schools for the children there enrolled, whether they be rich or poor and without regard to the fiscal capacity of the community. . . ."); see also Enrich, supra note 22, at 141-42 (discussing the McDuffy rationale); Alexandra Natapoff, 1993: The Year of Living Dangerously: State Courts Expand the Right to Education, 92 Educ. L. Rep. 755, 767 (1994) (same). As an associate legal director of the American Civil Liberties Union, the author participated in the McDuffy case as amicus curiae in support of plaintiffs.
91. See McDuffy, 615 N.E.2d at 555 (setting forth guidelines defining the content of an adequate education, and stating "we leave it to the magistrates and the Legislatures to define the precise nature of the task which they face in fulfilling their constitutional duty").
92. See, e.g., Washakie County Sch. Dist. No. One v. Herschler, 606 P.2d 310, 318 (Wyo. 1980) (holding that a state constitutional challenge to Wyoming's financing of public education raises "no more a political question than any other challenge to the constitutionality of statutes"); see also Greg D. Andres, Comment, Private School Voucher Remedies in Education Cases, 62 U. Chi. L. Rev. 795, 820 (1995) ("Courts in New Jersey, West Virginia, Texas, Kentucky, and Washington have overcome concerns of justiciable standards by interpreting the constitutional language in terms of concrete requirements."). But see, e.g., Thompson v. Engelking, 537 P.2d 635, 658 (Idaho 1975) (relying on the political question doctrine to bar relief in a challenge to Idaho's public school system).
93. I develop this argument more fully in Hershkoff, supra note 27 (manuscript at 69-72).
94. Ronald Dworkin, Taking Rights Seriously 31-36 (1978) (presenting the story of a sergeant on patrol).
95. Philip Selznick, Law, Society, and Industrial Justice 11 (1980), quoted in Robert C. Post, The Management of Speech, Discretion and Rights, 1984 Sup. Ct. Rev. 169, 207 & n.161.
96. Philip Selznick, Law, Society, and Industrial Justice 11 (1980), quoted in Robert C. Post, The Management of Speech, Discretion and Rights, 1984 Sup. Ct. Rev. 169, 207 & n.161.
97. D.J. Galligan, Discretionary Powers: A Legal Study of Official Discretion 17 (1986).
98. Report of the Comm. on Printing, New York State Constitutional Convention, Revised Record 2126 (1938) [hereinafter Revised Record] (statement of Jerome D. Barnum, Chairman).
99. See Christine Robitscher Ladd, Note, A Right to Shelter for the Homeless in New York State, 61 N.Y.U. L. Rev. 272, 285-99 (1986) (presenting a history of Article XVII and its potential use by the New York Court of Appeals in cases seeking to establish adequate shelter for homeless families).
100. William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 11 (1988). See generally Laura Kalman, The Strange Career of Legal Liberalism 183-84 (1996) (discussing the pros and cons of presentism); Steven G. Gey, A Constitutional Morphology: Text, Context, and Pretext in Constitutional Interpretation, 19 Ariz. St. L.J. 587, 589 (1987) (suggesting in the federal constitutional context that originalist "values are relevant today, but they cannot settle current disputes; they simply present the modern interpreter with a series of choices about social policies that can be drawn from the Constitution and judicially enforced").
101. William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 11 (1988). See generally Laura Kalman, The Strange Career of Legal Liberalism 183-84 (1996) (discussing the pros and cons of presentism); Steven G. Gey, A Constitutional Morphology: Text, Context, and Pretext in Constitutional Interpretation, 19 Ariz. St. L.J. 587, 589 (1987) (suggesting in the federal constitutional context that originalist "values are relevant today, but they cannot settle current disputes; they simply present the modern interpreter with a series of choices about social policies that can be drawn from the Constitution and judicially enforced").
102. William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 11 (1988). See generally Laura Kalman, The Strange Career of Legal Liberalism 183-84 (1996) (discussing the pros and cons of presentism); Steven G. Gey, A Constitutional Morphology: Text, Context, and Pretext in Constitutional Interpretation, 19 Ariz. St. L.J. 587, 589 (1987) (suggesting in the federal constitutional context that originalist "values are relevant today, but they cannot settle current disputes; they simply present the modern interpreter with a series of choices about social policies that can be drawn from the Constitution and judicially enforced").
103. Cf. Lawrence Lessig, What Drives Derivability: Responses to Responding to Imperfection, 74 Tex. L. Rev. 839, 854 (1996) (making "the claim that background understandings constitute the meaning of a foreground text, and that one cannot understand what a text means unless one understands these background understandings as well") (reviewing Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Sanford Levinson ed., 1995)); Kaye, supra note 13, at 423 (stating that "the history that has shaped the values of this State is different in many respects from that which has shaped the consensus in other states, not to mention our nation as a whole").
104. Cf. Lawrence Lessig, What Drives Derivability: Responses to Responding to Imperfection, 74 Tex. L. Rev. 839, 854 (1996) (making "the claim that background understandings constitute the meaning of a foreground text, and that one cannot understand what a text means unless one understands these background understandings as well") (reviewing Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Sanford Levinson ed., 1995)); Kaye, supra note 13, at 423 (stating that "the history that has shaped the values of this State is different in many respects from that which has shaped the consensus in other states, not to mention our nation as a whole").
105. Cf. William W. Fisher III, Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History, 49 Stan. L. Rev. 1065, 1096 (1997) (suggesting that intellectual legal history can "[c]ontribute to contemporary policy debates by enabling readers to assess the merits and preconditions of policies pursued in other societies").
106. Social Security Act, ch. 531, 49 Stat. 620 (1935) (codified as amended in scattered sections of 42 U.S.C.); see Robert E. Goodin, Protecting the Vulnerable: A Reanalysis of Our Social Responsibilities 147 (1985) ("The ideology of the Poor Law firmly held that no one should receive public assistance if he was capable of supporting himself.").
107. See, e.g., Michael B. Katz, The Undeserving Poor: From the War on Poverty to the War on Welfare (1989) (tracing the evolution of federal programs for the poor). But see Frances Fox Piven & Richard A. Cloward, The Historical Sources of the Contemporary Relief Debate, in The Mean Season: The Attack on the Welfare State 3 (Fred L. Block et al. eds., 1987) (questioning the nationalist thesis of welfare in the U.S.).
108. See, e.g., Michael B. Katz, The Undeserving Poor: From the War on Poverty to the War on Welfare (1989) (tracing the evolution of federal programs for the poor). But see Frances Fox Piven & Richard A. Cloward, The Historical Sources of the Contemporary Relief Debate, in The Mean Season: The Attack on the Welfare State 3 (Fred L. Block et al. eds., 1987) (questioning the nationalist thesis of welfare in the U.S.).
109. See, e.g., Michael B. Katz, In the Shadow of the Poorhouse: A Social History of Welfare in America 242-52 (rev. ed. 1996) (recounting the ideological underpinnings of the passage of the Social Security Act); Sylvia A. Law, Women, Work, Welfare, and the Preservation of Patriarchy, 131 U. Pa. L. Rev. 1249, 1252-61 (1983) (observing that the Social Security Act incorporated many of the ideological distinctions of the Elizabethan Poor Laws, thus limiting "federally supported welfare to the 'unemployable': the aged, blind, disabled, and women and children without men to support them").
110. See, e.g., Michael B. Katz, In the Shadow of the Poorhouse: A Social History of Welfare in America 242-52 (rev. ed. 1996) (recounting the ideological underpinnings of the passage of the Social Security Act); Sylvia A. Law, Women, Work, Welfare, and the Preservation of Patriarchy, 131 U. Pa. L. Rev. 1249, 1252-61 (1983) (observing that the Social Security Act incorporated many of the ideological distinctions of the Elizabethan Poor Laws, thus limiting "federally supported welfare to the 'unemployable': the aged, blind, disabled, and women and children without men to support them").
111. Grace Abbott, a leading social worker of the New Deal period, explained in 1939: Unemployment may, therefore, be regarded in greater or less degree as the inevitable result of our industrial system. Our economic life is based upon it. A democracy which supports this system should, therefore, make adequate and democratic provision for its victims, recognizing the costs of their care as the price it pays for the continuance of the capitalist system. Grace Abbott, The Social Service, A Public Responsibility, in From Relief to Social Security: The Development of the New Public Welfare Services and Their Administration 3, 4-5 (1966) (adapting lectures delivered at the Los Angeles Chapter of the American Association of Social Workers, Jan. 3-5, 1939). For a general discussion of the welfare philosophy of the New Deal social workers, see William H. Simon, Rights and Redistribution in the Welfare System, 38 Stan. L. Rev. 1431, 1436-38 (1986) [hereinafter Simon, Rights and Redistribution]; and William H. Simon, The Invention and Reinvention of Welfare Rights, 44 Md. L. Rev. 1, 4-23 (1985).
112. Grace Abbott, a leading social worker of the New Deal period, explained in 1939: Unemployment may, therefore, be regarded in greater or less degree as the inevitable result of our industrial system. Our economic life is based upon it. A democracy which supports this system should, therefore, make adequate and democratic provision for its victims, recognizing the costs of their care as the price it pays for the continuance of the capitalist system. Grace Abbott, The Social Service, A Public Responsibility, in From Relief to Social Security: The Development of the New Public Welfare Services and Their Administration 3, 4-5 (1966) (adapting lectures delivered at the Los Angeles Chapter of the American Association of Social Workers, Jan. 3-5, 1939). For a general discussion of the welfare philosophy of the New Deal social workers, see William H. Simon, Rights and Redistribution in the Welfare System, 38 Stan. L. Rev. 1431, 1436-38 (1986) [hereinafter Simon, Rights and Redistribution]; and William H. Simon, The Invention and Reinvention of Welfare Rights, 44 Md. L. Rev. 1, 4-23 (1985).
113. Grace Abbott, a leading social worker of the New Deal period, explained in 1939: Unemployment may, therefore, be regarded in greater or less degree as the inevitable result of our industrial system. Our economic life is based upon it. A democracy which supports this system should, therefore, make adequate and democratic provision for its victims, recognizing the costs of their care as the price it pays for the continuance of the capitalist system. Grace Abbott, The Social Service, A Public Responsibility, in From Relief to Social Security: The Development of the New Public Welfare Services and Their Administration 3, 4-5 (1966) (adapting lectures delivered at the Los Angeles Chapter of the American Association of Social Workers, Jan. 3-5, 1939). For a general discussion of the welfare philosophy of the New Deal social workers, see William H. Simon, Rights and Redistribution in the Welfare System, 38 Stan. L. Rev. 1431, 1436-38 (1986) [hereinafter Simon, Rights and Redistribution]; and William H. Simon, The Invention and Reinvention of Welfare Rights, 44 Md. L. Rev. 1, 4-23 (1985).
114. Grace Abbott, a leading social worker of the New Deal period, explained in 1939: Unemployment may, therefore, be regarded in greater or less degree as the inevitable result of our industrial system. Our economic life is based upon it. A democracy which supports this system should, therefore, make adequate and democratic provision for its victims, recognizing the costs of their care as the price it pays for the continuance of the capitalist system. Grace Abbott, The Social Service, A Public Responsibility, in From Relief to Social Security: The Development of the New Public Welfare Services and Their Administration 3, 4-5 (1966) (adapting lectures delivered at the Los Angeles Chapter of the American Association of Social Workers, Jan. 3-5, 1939). For a general discussion of the welfare philosophy of the New Deal social workers, see William H. Simon, Rights and Redistribution in the Welfare System, 38 Stan. L. Rev. 1431, 1436-38 (1986) [hereinafter Simon, Rights and Redistribution]; and William H. Simon, The Invention and Reinvention of Welfare Rights, 44 Md. L. Rev. 1, 4-23 (1985).
115. The term "social citizenship" comes from T.H. Marshall's influential essay, Citizenship and Social Class. See T.H. Marshall, Citizenship and Social Class, in Class, Citizenship, and Social Development: Essays by T.H. Marshall 65, 71 (1964).
116. The term "social citizenship" comes from T.H. Marshall's influential essay, Citizenship and Social Class. See T.H. Marshall, Citizenship and Social Class, in Class, Citizenship, and Social Development: Essays by T.H. Marshall 65, 71 (1964).
117. For a history of this period, see William R. Brock, Welfare, Democracy, and the New Deal 278-325 (1988); and James T. Patterson, The New Deal and the States: Federalism in Transition 74-101 (1969). See also Edwin Amenta & Theda Skocpol, Redefining the New Deal: World War II and the Development of Social Provision in the United States, in The Politics of Social Policy in the United States 81, 84 (Margaret Weir et al. eds., 1988) (discussing federal withdrawal after 1936 from local relief efforts).
118. For a history of this period, see William R. Brock, Welfare, Democracy, and the New Deal 278-325 (1988); and James T. Patterson, The New Deal and the States: Federalism in Transition 74-101 (1969). See also Edwin Amenta & Theda Skocpol, Redefining the New Deal: World War II and the Development of Social Provision in the United States, in The Politics of Social Policy in the United States 81, 84 (Margaret Weir et al. eds., 1988) (discussing federal withdrawal after 1936 from local relief efforts).
119. For a history of this period, see William R. Brock, Welfare, Democracy, and the New Deal 278-325 (1988); and James T. Patterson, The New Deal and the States: Federalism in Transition 74-101 (1969). See also Edwin Amenta & Theda Skocpol, Redefining the New Deal: World War II and the Development of Social Provision in the United States, in The Politics of Social Policy in the United States 81, 84 (Margaret Weir et al. eds., 1988) (discussing federal withdrawal after 1936 from local relief efforts).
120. Patterson, supra note 72, at 78-79. Patterson does not use the term devolution to describe the federal government's termination of FERA. For other accounts of this period, see Josephine Chapin Brown, Public Relief 1929-1939, at 325 (1940) (referring to events "after the liquidation of the FERA at the end of 1935" as a period of "terror for the relief client who could not get a work relief job and who had no sure niche in the developing categorical programs"); and Jacob Fisher, The Response of Social Work to the Depression 49-66 (1980) (describing federal retrenchment from general relief efforts after enactment of the Social Security Act in 1935).
121. See Brock, supra note 72, at 311, 317-323 (reporting that New York was one of only three states "that made stouter efforts to provide new answers to the problem of chronic unemployment or underemployment"); Joan M. Crouse, The Homeless Transient in the Great Depression: New York State, 1929-1941, at 242 (1986) (observing that "[a]t a time when many other states were making their laws more rigorous in an attempt to eliminate potential relief cases, New York was actually assuming a larger responsibility").
122. See Brock, supra note 72, at 311, 317-323 (reporting that New York was one of only three states "that made stouter efforts to provide new answers to the problem of chronic unemployment or underemployment"); Joan M. Crouse, The Homeless Transient in the Great Depression: New York State, 1929-1941, at 242 (1986) (observing that "[a]t a time when many other states were making their laws more rigorous in an attempt to eliminate potential relief cases, New York was actually assuming a larger responsibility").
123. The Convention was held pursuant to a provision of the 1894 New York Constitution, requiring the voters to decide every twenty years whether a convention should take place to amend the constitution. See N.Y. Const, of 1894 art. XIV, § 2 (renumbered art. XIX, § 2, and amended 1938). For a history of the 1938 Convention, the second to take place in New York in the twentieth century, see Peter J. Galie, Ordered Liberty: A Constitutional History of New York 230-261 (1996); Vernon A. O'Rourke & Douglas W. Campbell, Constitution-Making in a Democracy: Theory and Practice in New York State 62-247 (1943); and Frieda Almira Gillette, The New York State Constitutional Convention of 1938 (1944) (unpublished Ph.D. thesis, Cornell Univ.) (on file with Cornell Univ. Library). Article XVII was part of a slate of amendments presented for popular approval on the November 1938 ballot, and more people voted on this amendment than for any other; it passed with the largest margin, more than two-to-one. See O'Rourke & Campbell, supra, at 237. In 1997, the people of New York voted against calling a state constitutional convention. See Robert F. Williams, Ninth Annual Issue on State Constitutional Law - Introduction, 28 Rutgers L.J. 783, 785 (1997) ("New York made preparations for its November 1997 vote, taken every 20 years, on whether to hold a state constitutional convention. The New York voters rejected that opportunity."); cf. Report of the Task Force on the New York State Constitutional Convention, 52 Rec. Ass'n Bar City N.Y. 522, 630-31 (1997) (opposing any constitutional amendment to limit or to restrict the mandatory obligation of existing social welfare provisions).
124. The Convention was held pursuant to a provision of the 1894 New York Constitution, requiring the voters to decide every twenty years whether a convention should take place to amend the constitution. See N.Y. Const, of 1894 art. XIV, § 2 (renumbered art. XIX, § 2, and amended 1938). For a history of the 1938 Convention, the second to take place in New York in the twentieth century, see Peter J. Galie, Ordered Liberty: A Constitutional History of New York 230-261 (1996); Vernon A. O'Rourke & Douglas W. Campbell, Constitution-Making in a Democracy: Theory and Practice in New York State 62-247 (1943); and Frieda Almira Gillette, The New York State Constitutional Convention of 1938 (1944) (unpublished Ph.D. thesis, Cornell Univ.) (on file with Cornell Univ. Library). Article XVII was part of a slate of amendments presented for popular approval on the November 1938 ballot, and more people voted on this amendment than for any other; it passed with the largest margin, more than two-to-one. See O'Rourke & Campbell, supra, at 237. In 1997, the people of New York voted against calling a state constitutional convention. See Robert F. Williams, Ninth Annual Issue on State Constitutional Law - Introduction, 28 Rutgers L.J. 783, 785 (1997) ("New York made preparations for its November 1997 vote, taken every 20 years, on whether to hold a state constitutional convention. The New York voters rejected that opportunity."); cf. Report of the Task Force on the New York State Constitutional Convention, 52 Rec. Ass'n Bar City N.Y. 522, 630-31 (1997) (opposing any constitutional amendment to limit or to restrict the mandatory obligation of existing social welfare provisions).
125. The Convention was held pursuant to a provision of the 1894 New York Constitution, requiring the voters to decide every twenty years whether a convention should take place to amend the constitution. See N.Y. Const, of 1894 art. XIV, § 2 (renumbered art. XIX, § 2, and amended 1938). For a history of the 1938 Convention, the second to take place in New York in the twentieth century, see Peter J. Galie, Ordered Liberty: A Constitutional History of New York 230-261 (1996); Vernon A. O'Rourke & Douglas W. Campbell, Constitution-Making in a Democracy: Theory and Practice in New York State 62-247 (1943); and Frieda Almira Gillette, The New York State Constitutional Convention of 1938 (1944) (unpublished Ph.D. thesis, Cornell Univ.) (on file with Cornell Univ. Library). Article XVII was part of a slate of amendments presented for popular approval on the November 1938 ballot, and more people voted on this amendment than for any other; it passed with the largest margin, more than two-to-one. See O'Rourke & Campbell, supra, at 237. In 1997, the people of New York voted against calling a state constitutional convention. See Robert F. Williams, Ninth Annual Issue on State Constitutional Law - Introduction, 28 Rutgers L.J. 783, 785 (1997) ("New York made preparations for its November 1997 vote, taken every 20 years, on whether to hold a state constitutional convention. The New York voters rejected that opportunity."); cf. Report of the Task Force on the New York State Constitutional Convention, 52 Rec. Ass'n Bar City N.Y. 522, 630-31 (1997) (opposing any constitutional amendment to limit or to restrict the mandatory obligation of existing social welfare provisions).
126. The Convention was held pursuant to a provision of the 1894 New York Constitution, requiring the voters to decide every twenty years whether a convention should take place to amend the constitution. See N.Y. Const, of 1894 art. XIV, § 2 (renumbered art. XIX, § 2, and amended 1938). For a history of the 1938 Convention, the second to take place in New York in the twentieth century, see Peter J. Galie, Ordered Liberty: A Constitutional History of New York 230-261 (1996); Vernon A. O'Rourke & Douglas W. Campbell, Constitution-Making in a Democracy: Theory and Practice in New York State 62-247 (1943); and Frieda Almira Gillette, The New York State Constitutional Convention of 1938 (1944) (unpublished Ph.D. thesis, Cornell Univ.) (on file with Cornell Univ. Library). Article XVII was part of a slate of amendments presented for popular approval on the November 1938 ballot, and more people voted on this amendment than for any other; it passed with the largest margin, more than two-to-one. See O'Rourke & Campbell, supra, at 237. In 1997, the people of New York voted against calling a state constitutional convention. See Robert F. Williams, Ninth Annual Issue on State Constitutional Law - Introduction, 28 Rutgers L.J. 783, 785 (1997) ("New York made preparations for its November 1997 vote, taken every 20 years, on whether to hold a state constitutional convention. The New York voters rejected that opportunity."); cf. Report of the Task Force on the New York State Constitutional Convention, 52 Rec. Ass'n Bar City N.Y. 522, 630-31 (1997) (opposing any constitutional amendment to limit or to restrict the mandatory obligation of existing social welfare provisions).
127. The Convention was held pursuant to a provision of the 1894 New York Constitution, requiring the voters to decide every twenty years whether a convention should take place to amend the constitution. See N.Y. Const, of 1894 art. XIV, § 2 (renumbered art. XIX, § 2, and amended 1938). For a history of the 1938 Convention, the second to take place in New York in the twentieth century, see Peter J. Galie, Ordered Liberty: A Constitutional History of New York 230-261 (1996); Vernon A. O'Rourke & Douglas W. Campbell, Constitution-Making in a Democracy: Theory and Practice in New York State 62-247 (1943); and Frieda Almira Gillette, The New York State Constitutional Convention of 1938 (1944) (unpublished Ph.D. thesis, Cornell Univ.) (on file with Cornell Univ. Library). Article XVII was part of a slate of amendments presented for popular approval on the November 1938 ballot, and more people voted on this amendment than for any other; it passed with the largest margin, more than two-to-one. See O'Rourke & Campbell, supra, at 237. In 1997, the people of New York voted against calling a state constitutional convention. See Robert F. Williams, Ninth Annual Issue on State Constitutional Law - Introduction, 28 Rutgers L.J. 783, 785 (1997) ("New York made preparations for its November 1997 vote, taken every 20 years, on whether to hold a state constitutional convention. The New York voters rejected that opportunity."); cf. Report of the Task Force on the New York State Constitutional Convention, 52 Rec. Ass'n Bar City N.Y. 522, 630-31 (1997) (opposing any constitutional amendment to limit or to restrict the mandatory obligation of existing social welfare provisions).
128. The Convention was held pursuant to a provision of the 1894 New York Constitution, requiring the voters to decide every twenty years whether a convention should take place to amend the constitution. See N.Y. Const, of 1894 art. XIV, § 2 (renumbered art. XIX, § 2, and amended 1938). For a history of the 1938 Convention, the second to take place in New York in the twentieth century, see Peter J. Galie, Ordered Liberty: A Constitutional History of New York 230-261 (1996); Vernon A. O'Rourke & Douglas W. Campbell, Constitution-Making in a Democracy: Theory and Practice in New York State 62-247 (1943); and Frieda Almira Gillette, The New York State Constitutional Convention of 1938 (1944) (unpublished Ph.D. thesis, Cornell Univ.) (on file with Cornell Univ. Library). Article XVII was part of a slate of amendments presented for popular approval on the November 1938 ballot, and more people voted on this amendment than for any other; it passed with the largest margin, more than two-to-one. See O'Rourke & Campbell, supra, at 237. In 1997, the people of New York voted against calling a state constitutional convention. See Robert F. Williams, Ninth Annual Issue on State Constitutional Law - Introduction, 28 Rutgers L.J. 783, 785 (1997) ("New York made preparations for its November 1997 vote, taken every 20 years, on whether to hold a state constitutional convention. The New York voters rejected that opportunity."); cf. Report of the Task Force on the New York State Constitutional Convention, 52 Rec. Ass'n Bar City N.Y. 522, 630-31 (1997) (opposing any constitutional amendment to limit or to restrict the mandatory obligation of existing social welfare provisions).
129. Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 Yale L.J. 1287, 1316 (1982); see Robert M. Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 4 (1983) (stating that "[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic . . . ."); see also Patrick Baude, Interstate Dialogue in State Constitutional Law, 28 Rutgers L.J. 835, 836 (1997) (arguing "that there are meaningful local epics" that are important to state constitutional interpretation).
130. Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 Yale L.J. 1287, 1316 (1982); see Robert M. Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 4 (1983) (stating that "[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic . . . ."); see also Patrick Baude, Interstate Dialogue in State Constitutional Law, 28 Rutgers L.J. 835, 836 (1997) (arguing "that there are meaningful local epics" that are important to state constitutional interpretation).
131. Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 Yale L.J. 1287, 1316 (1982); see Robert M. Cover, The Supreme Court, 1982 Term - Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 4 (1983) (stating that "[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic . . . ."); see also Patrick Baude, Interstate Dialogue in State Constitutional Law, 28 Rutgers L.J. 835, 836 (1997) (arguing "that there are meaningful local epics" that are important to state constitutional interpretation).
132. See Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value 117-38 (1973) (discussing the influence of totalitarianism and economic upheaval on American thinking in the 1930s). The opening speech at the 1938 Convention, by Edward J. Flynn, Secretary of State, urged: "You are assembled during a most critical time in the world's history, when new forms of government are being created throughout the world and democratic principles are being forgotten." O'Rourke & Campbell, supra note 75, at 1.
133. This section draws on Hershkoff, Rights and Freedoms, supra note *, at 642-47.
134. For a general history of social and economic conditions in New York during this period, see William W. Bremer, Depression Winters: New York Social Workers and the New Deal (1984); Brown, supra note 73; Crouse, supra note 74; Robert P. Ingalls, Herbert H. Lehman and New York's Little New Deal (1975); John D. Millett, The Works Progress Administration in New York City (1938); and David M. Schneider & Albert Deutsch, The History of Public Welfare in New York State: 1867-1940, at 293-375 (Patterson Smith 1969).
135. For a general history of social and economic conditions in New York during this period, see William W. Bremer, Depression Winters: New York Social Workers and the New Deal (1984); Brown, supra note 73; Crouse, supra note 74; Robert P. Ingalls, Herbert H. Lehman and New York's Little New Deal (1975); John D. Millett, The Works Progress Administration in New York City (1938); and David M. Schneider & Albert Deutsch, The History of Public Welfare in New York State: 1867-1940, at 293-375 (Patterson Smith 1969).
136. For a general history of social and economic conditions in New York during this period, see William W. Bremer, Depression Winters: New York Social Workers and the New Deal (1984); Brown, supra note 73; Crouse, supra note 74; Robert P. Ingalls, Herbert H. Lehman and New York's Little New Deal (1975); John D. Millett, The Works Progress Administration in New York City (1938); and David M. Schneider & Albert Deutsch, The History of Public Welfare in New York State: 1867-1940, at 293-375 (Patterson Smith 1969).
137. For a general history of social and economic conditions in New York during this period, see William W. Bremer, Depression Winters: New York Social Workers and the New Deal (1984); Brown, supra note 73; Crouse, supra note 74; Robert P. Ingalls, Herbert H. Lehman and New York's Little New Deal (1975); John D. Millett, The Works Progress Administration in New York City (1938); and David M. Schneider & Albert Deutsch, The History of Public Welfare in New York State: 1867-1940, at 293-375 (Patterson Smith 1969).
138. For a general history of social and economic conditions in New York during this period, see William W. Bremer, Depression Winters: New York Social Workers and the New Deal (1984); Brown, supra note 73; Crouse, supra note 74; Robert P. Ingalls, Herbert H. Lehman and New York's Little New Deal (1975); John D. Millett, The Works Progress Administration in New York City (1938); and David M. Schneider & Albert Deutsch, The History of Public Welfare in New York State: 1867-1940, at 293-375 (Patterson Smith 1969).
139. For a general history of social and economic conditions in New York during this period, see William W. Bremer, Depression Winters: New York Social Workers and the New Deal (1984); Brown, supra note 73; Crouse, supra note 74; Robert P. Ingalls, Herbert H. Lehman and New York's Little New Deal (1975); John D. Millett, The Works Progress Administration in New York City (1938); and David M. Schneider & Albert Deutsch, The History of Public Welfare in New York State: 1867-1940, at 293-375 (Patterson Smith 1969).
140. Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165, 1214 (1967) (defining demoralization costs).
141. See Crouse, supra note 74, at 53 (stating that "industrial employment fell from 1,105,963 to 733,457 and wages from $1,650,389,000 to $754,367,000"). The number of homeless men seeking temporary shelter in the Buffalo municipal lodging house increased during these years by over 1000%, to over 750,000. See id. at 69. Similarly, the rate of malnutrition per 1000 children under age six in the Mulberry district in New York City increased from 60.3 to 99. See Grace Abbott, Children and the Depression: A National Study and Warning, N.Y. Times, Dec. 18, 1932, at 5. The City Health Department further reported an increase in malnutrition among students, from 13.4% in 1929 to 20.5% in 1932. See id. "Teachers remarked that many young children seemed dazed and distracted in school, as though old before their time. They were undernourished." Stout, supra note 24, at 41.
142. See Crouse, supra note 74, at 53 (stating that "industrial employment fell from 1,105,963 to 733,457 and wages from $1,650,389,000 to $754,367,000"). The number of homeless men seeking temporary shelter in the Buffalo municipal lodging house increased during these years by over 1000%, to over 750,000. See id. at 69. Similarly, the rate of malnutrition per 1000 children under age six in the Mulberry district in New York City increased from 60.3 to 99. See Grace Abbott, Children and the Depression: A National Study and Warning, N.Y. Times, Dec. 18, 1932, at 5. The City Health Department further reported an increase in malnutrition among students, from 13.4% in 1929 to 20.5% in 1932. See id. "Teachers remarked that many young children seemed dazed and distracted in school, as though old before their time. They were undernourished." Stout, supra note 24, at 41.
143. Katz, supra note 69, at 219 (quoting Harry Hopkins). Commentators increasingly saw poverty as evidence of "abnormal social phenomena," the consequence of economic structures and market forces that were largely beyond the control of any individual or family. See, e.g., John Lewis Gillin, Poverty and Dependency: Their Relief and Prevention 5 (3d ed. 1937) (discussing how the "abnormal social phenomenon" of poverty and dependency can illustrate the nature and function of a normal society). Nevertheless, the federal government, under President Hoover's leadership, persisted in refusing to extend assistance. In New York, by contrast, then-Governor Franklin Delano Roosevelt called on the "responsibility" of "every civilized nation" to "car[e] for those of its citizens who find themselves the victims of such adverse circumstance as makes them unable to obtain even the necessities for mere existence without the aid of others." Brown, supra note 73, at 89. FDR declared: While it is true that we have hitherto principally considered those who through accident or old age were permanently incapacitated, the same responsibility of the State undoubtedly applies when widespread economic conditions render large numbers of men and women incapable of supporting either themselves or their families because of circumstances beyond their control which make it impossible for them to find remunerative labor. To these unfortunate citizens aid must be extended by government - not as a matter of charity but as a matter of social duty. Id. at 89-90; see also Bremer, supra note 78, at 57 (quoting FDR's proclamation of January 1932 that responsibility for the Depression is of "a complex and impersonal nature" and "will not be lodged at the door of those who need help today").
144. Katz, supra note 69, at 219 (quoting Harry Hopkins). Commentators increasingly saw poverty as evidence of "abnormal social phenomena," the consequence of economic structures and market forces that were largely beyond the control of any individual or family. See, e.g., John Lewis Gillin, Poverty and Dependency: Their Relief and Prevention 5 (3d ed. 1937) (discussing how the "abnormal social phenomenon" of poverty and dependency can illustrate the nature and function of a normal society). Nevertheless, the federal government, under President Hoover's leadership, persisted in refusing to extend assistance. In New York, by contrast, then-Governor Franklin Delano Roosevelt called on the "responsibility" of "every civilized nation" to "car[e] for those of its citizens who find themselves the victims of such adverse circumstance as makes them unable to obtain even the necessities for mere existence without the aid of others." Brown, supra note 73, at 89. FDR declared: While it is true that we have hitherto principally considered those who through accident or old age were permanently incapacitated, the same responsibility of the State undoubtedly applies when widespread economic conditions render large numbers of men and women incapable of supporting either themselves or their families because of circumstances beyond their control which make it impossible for them to find remunerative labor. To these unfortunate citizens aid must be extended by government - not as a matter of charity but as a matter of social duty. Id. at 89-90; see also Bremer, supra note 78, at 57 (quoting FDR's proclamation of January 1932 that responsibility for the Depression is of "a complex and impersonal nature" and "will not be lodged at the door of those who need help today").
145. Katz, supra note 69, at 219 (quoting Harry Hopkins). Commentators increasingly saw poverty as evidence of "abnormal social phenomena," the consequence of economic structures and market forces that were largely beyond the control of any individual or family. See, e.g., John Lewis Gillin, Poverty and Dependency: Their Relief and Prevention 5 (3d ed. 1937) (discussing how the "abnormal social phenomenon" of poverty and dependency can illustrate the nature and function of a normal society). Nevertheless, the federal government, under President Hoover's leadership, persisted in refusing to extend assistance. In New York, by contrast, then-Governor Franklin Delano Roosevelt called on the "responsibility" of "every civilized nation" to "car[e] for those of its citizens who find themselves the victims of such adverse circumstance as makes them unable to obtain even the necessities for mere existence without the aid of others." Brown, supra note 73, at 89. FDR declared: While it is true that we have hitherto principally considered those who through accident or old age were permanently incapacitated, the same responsibility of the State undoubtedly applies when widespread economic conditions render large numbers of men and women incapable of supporting either themselves or their families because of circumstances beyond their control which make it impossible for them to find remunerative labor. To these unfortunate citizens aid must be extended by government - not as a matter of charity but as a matter of social duty. Id. at 89-90; see also Bremer, supra note 78, at 57 (quoting FDR's proclamation of January 1932 that responsibility for the Depression is of "a complex and impersonal nature" and "will not be lodged at the door of those who need help today").
146. Katz, supra note 69, at 219 (quoting Harry Hopkins). Commentators increasingly saw poverty as evidence of "abnormal social phenomena," the consequence of economic structures and market forces that were largely beyond the control of any individual or family. See, e.g., John Lewis Gillin, Poverty and Dependency: Their Relief and Prevention 5 (3d ed. 1937) (discussing how the "abnormal social phenomenon" of poverty and dependency can illustrate the nature and function of a normal society). Nevertheless, the federal government, under President Hoover's leadership, persisted in refusing to extend assistance. In New York, by contrast, then-Governor Franklin Delano Roosevelt called on the "responsibility" of "every civilized nation" to "car[e] for those of its citizens who find themselves the victims of such adverse circumstance as makes them unable to obtain even the necessities for mere existence without the aid of others." Brown, supra note 73, at 89. FDR declared: While it is true that we have hitherto principally considered those who through accident or old age were permanently incapacitated, the same responsibility of the State undoubtedly applies when widespread economic conditions render large numbers of men and women incapable of supporting either themselves or their families because of circumstances beyond their control which make it impossible for them to find remunerative labor. To these unfortunate citizens aid must be extended by government - not as a matter of charity but as a matter of social duty. Id. at 89-90; see also Bremer, supra note 78, at 57 (quoting FDR's proclamation of January 1932 that responsibility for the Depression is of "a complex and impersonal nature" and "will not be lodged at the door of those who need help today").
147. Edith Abbott, an important member of the social work community, responded to announcements of FERA's proposed dismantlement with an article in the Nation entitled, "Don't do it Mr. Hopkins!": All who have recognized the miserable incompetence of the old system know that returning to local relief authorities means returning to everything that is reactionary in the field of social welfare . . . . [L]ocal politicians temporarily banished by the resolute orders of the Federal Relief Administration, will return to the welfare controls. Brock, supra note 72, at 251.
148. See id. at 297. As William R. Brock has chronicled: In the eighteen months after the last FERA grant, Kentucky, Maryland, Mississippi, and South Dakota withdrew completely from general relief and returned exclusive responsibility to their local governments. Florida, Georgia, Indiana, Kansas, Massachusetts, Nevada, North Carolina, South Carolina, and Vermont voted no funds for general relief but gave some assistance for relief administration. New Jersey and Missouri withdrew completely from general relief, but later had second thoughts and set up state agencies with limited regulatory power. Id.; see also Fisher, supra note 73, at 62 (reporting that "[h]undreds of thousands of families suffered a reduction in income, in some places were cut off from assistance altogether when federal funds ran out").
149. By way of comparison, in 1934, the average monthly assistance payment per family in New York was $45.12; it was less than $15 in 12 states, including Connecticut, and an average of $23.90 nationally. See Patterson, supra note 72, at 54-55.
150. See Brock, supra note 72, at 319-20 (quoting the Relief Commission's report).
151. Herbert H. Lehman, Annual Message to the Legislature (1938), reprinted in Public Papers of Herbert H, Lehman: Forty-Ninth Governor of the State of New York Third Term 1938, at 39 (1942).
152. David C. Adie, Foreword to David M. Schneider, The History of Public Welfare in New York State 1609-1866 at ix, xii (1938); see Ingalls, supra note 78, at 49-50 (describing Adie as "an early champion of the 'new philosophy of collective responsibility'"); cf. James T. Patterson, America's Struggle Against Poverty 44 (1981) (reporting 1934 statement of Harry Lurie, Chairman of the American Association of Social Workers subcommittee on Federal Action, calling for the "establishment of minimum standards of security applying to the entire population").
153. David C. Adie, Foreword to David M. Schneider, The History of Public Welfare in New York State 1609-1866 at ix, xii (1938); see Ingalls, supra note 78, at 49-50 (describing Adie as "an early champion of the 'new philosophy of collective responsibility'"); cf. James T. Patterson, America's Struggle Against Poverty 44 (1981) (reporting 1934 statement of Harry Lurie, Chairman of the American Association of Social Workers subcommittee on Federal Action, calling for the "establishment of minimum standards of security applying to the entire population").
154. David C. Adie, Foreword to David M. Schneider, The History of Public Welfare in New York State 1609-1866 at ix, xii (1938); see Ingalls, supra note 78, at 49-50 (describing Adie as "an early champion of the 'new philosophy of collective responsibility'"); cf. James T. Patterson, America's Struggle Against Poverty 44 (1981) (reporting 1934 statement of Harry Lurie, Chairman of the American Association of Social Workers subcommittee on Federal Action, calling for the "establishment of minimum standards of security applying to the entire population").
155. Prior to the Convention, Senator Robert F. Wagner, in a speech in Rochester, called for a seven-point program that would place "beyond doubt" and declare in "unmistakable terms" the power and duty of the legislature to enact and finance public welfare laws. O'Rourke & Campbell, supra note 75, at 70; see also id. at 96 n.3 & 161 (stating that "[t]he final objective was to place in the constitution safeguards anticipating possible judicial decisions which would nullify rights such groups now possessed or which might be conferred upon them in the future by a favorable legislature"); Brock, supra note 72, at 349-50 (discussing the constitutional goals of social welfare measures).
156. Prior to the Convention, Senator Robert F. Wagner, in a speech in Rochester, called for a seven-point program that would place "beyond doubt" and declare in "unmistakable terms" the power and duty of the legislature to enact and finance public welfare laws. O'Rourke & Campbell, supra note 75, at 70; see also id. at 96 n.3 & 161 (stating that "[t]he final objective was to place in the constitution safeguards anticipating possible judicial decisions which would nullify rights such groups now possessed or which might be conferred upon them in the future by a favorable legislature"); Brock, supra note 72, at 349-50 (discussing the constitutional goals of social welfare measures).
157. See All State Relief Ends in Jersey; Local Areas Must Feed 270,000, N.Y. Times, Apr. 17, 1936, at A1. As one social worker commented: A return to predepression conditions means the unnecessary death of thousands of mothers each year and invalidism for many - a very great many - others; it means inadequate treatment for sick children and for crippled children; it means wholly inadequate resources for the education of parents, through child health centers, in the scientific care of their children; it means that the supervision of the health of most school children will not be provided. Abbott, supra note 70, at 194-95.
158. See All State Relief Ends in Jersey; Local Areas Must Feed 270,000, N.Y. Times, Apr. 17, 1936, at A1. As one social worker commented: A return to predepression conditions means the unnecessary death of thousands of mothers each year and invalidism for many - a very great many - others; it means inadequate treatment for sick children and for crippled children; it means wholly inadequate resources for the education of parents, through child health centers, in the scientific care of their children; it means that the supervision of the health of most school children will not be provided. Abbott, supra note 70, at 194-95.
159. The Welfare Committee considered and rejected a number of proposals before agreeing to send language to the floor. See Ladd, supra note 63, at 289-91 (analyzing proposed language).
160. Revised Record, supra note 62, at 2126 (statement of Mr. Corsi).
161. Id. at 2125.
162. See 1 Bruce Ackerman, We the People: Foundations 6 (1991) (developing the theory of constitutional moments); cf. S. Rep. No. 104-96, at 65 (1995) ("It is indeed a constitutional moment." (quoting Sen. Daniel Patrick Moynihan, referring to an early version of the bill that became the 1996 Act)).
163. O'Rourke & Campbell, supra note 75, at 117.
164. Revised Record, supra note 62, at 2126 (statement of Mr. Corsi).
165. Lochner v. New York, 198 U.S. 45, 64 (1905); see Cass R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 874 (1987) (discussing the idea of government neutrality in the pre-New Deal period).
166. See Barbara E. Armacost, Affirmative Duties, Systemic Harms, and the Due Process Clause, 94 Mich. L. Rev. 982, 985 (1996) (observing that just as federal courts are "reluctant to hold the government liable for failures to protect . . . there is a whole universe of ordinary tort cases virtually identical to the cases that have been brought under the Due Process Clause"); Peter F. Lake, Recognizing the Importance of Remoteness to the Duty to Rescue, 46 DePaul L. Rev. 315, 316 (1997) ("[I]t is commonly understood that there is no general, nonstatutory duty to rescue another in peril, not even a minimal duty that could be discharged by a riskless warning, absent a special relationship." (citations omitted)).
167. See Barbara E. Armacost, Affirmative Duties, Systemic Harms, and the Due Process Clause, 94 Mich. L. Rev. 982, 985 (1996) (observing that just as federal courts are "reluctant to hold the government liable for failures to protect . . . there is a whole universe of ordinary tort cases virtually identical to the cases that have been brought under the Due Process Clause"); Peter F. Lake, Recognizing the Importance of Remoteness to the Duty to Rescue, 46 DePaul L. Rev. 315, 316 (1997) ("[I]t is commonly understood that there is no general, nonstatutory duty to rescue another in peril, not even a minimal duty that could be discharged by a riskless warning, absent a special relationship." (citations omitted)).
168. See Howard Gillmann, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993) (examining the idea of "class legislation" during the Lochner era); G. Edward White, Revisiting Substantive Due Process and Holmes's Lochner Dissent, 63 Brook. L. Rev. 87, 91-97 (1997) (discussing the anti-class principle and its implications for social legislation during the Lochner era).
169. See Howard Gillmann, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993) (examining the idea of "class legislation" during the Lochner era); G. Edward White, Revisiting Substantive Due Process and Holmes's Lochner Dissent, 63 Brook. L. Rev. 87, 91-97 (1997) (discussing the anti-class principle and its implications for social legislation during the Lochner era).
170. Cf. Thomas A. Eaton & Michael Wells, Governmental Inaction as a Constitutional Tort: Deshaney and Its Aftermath, 66 Wash. L. Rev. 107, 158-59, 165-67 (1991) (discussing the role of government inaction in federal positive rights analysis); William E. Nelson, The Changing Meaning of Equality in Twentieth-Century Constitutional Law, 52 Wash. & Lee L. Rev. 3, 8-10 (1995) (describing the evolution of New York police power cases dealing with redistributive legislation).
171. Cf. Thomas A. Eaton & Michael Wells, Governmental Inaction as a Constitutional Tort: Deshaney and Its Aftermath, 66 Wash. L. Rev. 107, 158-59, 165-67 (1991) (discussing the role of government inaction in federal positive rights analysis); William E. Nelson, The Changing Meaning of Equality in Twentieth-Century Constitutional Law, 52 Wash. & Lee L. Rev. 3, 8-10 (1995) (describing the evolution of New York police power cases dealing with redistributive legislation).
172. Revised Record, supra note 62, at 2142 (statement of Mr. Corsi); see 6 New York State Const. Convention Comm., Problems Relating to Bill of Rights and General Welfare 482 (1938) (describing constitutional problems of social assistance).
173. See Crouse, supra note 74, at 43; Schneider & Deutsch, supra note 78, at 286- 88.
174. See Crouse, supra note 74, at 43; Schneider & Deutsch, supra note 78, at 286-88.
175. For a discussion of the relation between local party patronage and the provision of poor relief in New York before 1938, see Leah Hannah Feder, Unemployment Relief in Periods of Depression 185-88 (1936) (discussing political party involvement in the administration of poor relief). See generally Ann Shola Orloff, The Political Origins of America's Belated Welfare State, in The Politics of Social Policy in the United States 37, 49-51 (Margaret Weir et al. eds., 1988) (discussing problems of patronage in a democracy); Theda Skocpol & John Ikenberry, The Political Formation of the American Welfare State in Historical and Comparative Perspective, 6 Comp. Soc. Res. 87, 92-93 (1983) (discussing the relation between "patronage democracy and distributive social benefits").
176. For a discussion of the relation between local party patronage and the provision of poor relief in New York before 1938, see Leah Hannah Feder, Unemployment Relief in Periods of Depression 185-88 (1936) (discussing political party involvement in the administration of poor relief). See generally Ann Shola Orloff, The Political Origins of America's Belated Welfare State, in The Politics of Social Policy in the United States 37, 49-51 (Margaret Weir et al. eds., 1988) (discussing problems of patronage in a democracy); Theda Skocpol & John Ikenberry, The Political Formation of the American Welfare State in Historical and Comparative Perspective, 6 Comp. Soc. Res. 87, 92-93 (1983) (discussing the relation between "patronage democracy and distributive social benefits").
177. For a discussion of the relation between local party patronage and the provision of poor relief in New York before 1938, see Leah Hannah Feder, Unemployment Relief in Periods of Depression 185-88 (1936) (discussing political party involvement in the administration of poor relief). See generally Ann Shola Orloff, The Political Origins of America's Belated Welfare State, in The Politics of Social Policy in the United States 37, 49-51 (Margaret Weir et al. eds., 1988) (discussing problems of patronage in a democracy); Theda Skocpol & John Ikenberry, The Political Formation of the American Welfare State in Historical and Comparative Perspective, 6 Comp. Soc. Res. 87, 92-93 (1983) (discussing the relation between "patronage democracy and distributive social benefits").
178. N.Y. Const. art. XVII, § 1.
179. During the colonial period, for example, New York provided relief to the poor, but required recipients to wear badges with "the letters 'N.Y.' on their clothes" as a sign of public shame. Lester M. Salamon, Welfare: The Elusive Consensus: Where We Are, How We Got There, and What's Ahead 67 (1978). Briefing papers prepared for the Convention explicitly rejected the poor-law mentality that motivated earlier relief efforts: "All past relief experience had been based on pauper-poor-law philosophy, with its accent on private generosity and public scorn. But when unemployment lost its former aspect of individual blameworthiness, and took on the color of public calamity, the old poor-law methods became entirely inapplicable." 4 New York State Const. Convention Comm., State and Local Government in New York 430 (1938); cf. Edith Abbott, Abolish the Pauper Laws, 8 Soc. Serv. Rev. 1 (1934) (urging the states to revise the old poor laws, "not merely because the exigencies of the depression have led to a new concern about poor relief administration but because the so-called 'emergency' relief organizations must, in the not distant future, be supplanted by some continuing machinery vastly superior to the old local poor relief administration").
180. During the colonial period, for example, New York provided relief to the poor, but required recipients to wear badges with "the letters 'N.Y.' on their clothes" as a sign of public shame. Lester M. Salamon, Welfare: The Elusive Consensus: Where We Are, How We Got There, and What's Ahead 67 (1978). Briefing papers prepared for the Convention explicitly rejected the poor-law mentality that motivated earlier relief efforts: "All past relief experience had been based on pauper-poor-law philosophy, with its accent on private generosity and public scorn. But when unemployment lost its former aspect of individual blameworthiness, and took on the color of public calamity, the old poor-law methods became entirely inapplicable." 4 New York State Const. Convention Comm., State and Local Government in New York 430 (1938); cf. Edith Abbott, Abolish the Pauper Laws, 8 Soc. Serv. Rev. 1 (1934) (urging the states to revise the old poor laws, "not merely because the exigencies of the depression have led to a new concern about poor relief administration but because the so-called 'emergency' relief organizations must, in the not distant future, be supplanted by some continuing machinery vastly superior to the old local poor relief administration").
181. See Gillin, supra note 81, at 206.
182. Id. As the Chair of the Welfare Committee explained to the delegates: Unemployment, we have learned after nine years of depression and recession, is not a transitory phenomenon and the kind of prosperity that will put all the unemployed back to work is not around the corner. Unemployment is inherent in our industrial system. It is a natural concomitant of our technological progress. It is a permanent problem which must be met with all the vision and all the courage at our command. Revised Record, supra note 62, at 2143-44 (discussing a proposed wage and hours amendment to the state constitution).
183. Revised Record, supra note 62, at 2147.
184. Id. at 2172.
185. See Simeon E. Baldwin, Modern Political Institutions 73-74 (1898) (discussing state constitutional limits on state aid and debt); Carl A. Heisterman, Constitutional Limitations Affecting State and Local Relief Funds, 6 Soc. Serv. Rev. 1 (1932) (collecting state constitutional restrictions on poor relief in several states); cf. James Willard Hurst, The Growth of American Law: The Law Makers 31 (1950) (stating that "[t]he most significant formal limits put on the state legislatures related to the power of the purse: i.e., the limitations, or the total prohibition, set upon state debt, on the lending of state credit or other subsidies to private enterprise; and the limits put on local government finance"); Stephen Guardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. Chi. L. Rev. 483, 487 (1997) (observing the "specific constitutional constraints on the power of states that had either been imposed for the first time or substantially enhanced during the Lochner era").
186. See Simeon E. Baldwin, Modern Political Institutions 73-74 (1898) (discussing state constitutional limits on state aid and debt); Carl A. Heisterman, Constitutional Limitations Affecting State and Local Relief Funds, 6 Soc. Serv. Rev. 1 (1932) (collecting state constitutional restrictions on poor relief in several states); cf. James Willard Hurst, The Growth of American Law: The Law Makers 31 (1950) (stating that "[t]he most significant formal limits put on the state legislatures related to the power of the purse: i.e., the limitations, or the total prohibition, set upon state debt, on the lending of state credit or other subsidies to private enterprise; and the limits put on local government finance"); Stephen Guardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. Chi. L. Rev. 483, 487 (1997) (observing the "specific constitutional constraints on the power of states that had either been imposed for the first time or substantially enhanced during the Lochner era").
187. See Simeon E. Baldwin, Modern Political Institutions 73-74 (1898) (discussing state constitutional limits on state aid and debt); Carl A. Heisterman, Constitutional Limitations Affecting State and Local Relief Funds, 6 Soc. Serv. Rev. 1 (1932) (collecting state constitutional restrictions on poor relief in several states); cf. James Willard Hurst, The Growth of American Law: The Law Makers 31 (1950) (stating that "[t]he most significant formal limits put on the state legislatures related to the power of the purse: i.e., the limitations, or the total prohibition, set upon state debt, on the lending of state credit or other subsidies to private enterprise; and the limits put on local government finance"); Stephen Guardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. Chi. L. Rev. 483, 487 (1997) (observing the "specific constitutional constraints on the power of states that had either been imposed for the first time or substantially enhanced during the Lochner era").
188. See Simeon E. Baldwin, Modern Political Institutions 73-74 (1898) (discussing state constitutional limits on state aid and debt); Carl A. Heisterman, Constitutional Limitations Affecting State and Local Relief Funds, 6 Soc. Serv. Rev. 1 (1932) (collecting state constitutional restrictions on poor relief in several states); cf. James Willard Hurst, The Growth of American Law: The Law Makers 31 (1950) (stating that "[t]he most significant formal limits put on the state legislatures related to the power of the purse: i.e., the limitations, or the total prohibition, set upon state debt, on the lending of state credit or other subsidies to private enterprise; and the limits put on local government finance"); Stephen Guardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. Chi. L. Rev. 483, 487 (1997) (observing the "specific constitutional constraints on the power of states that had either been imposed for the first time or substantially enhanced during the Lochner era").
189. These spending limits explain, in part, the administrative structure of the Temporary Emergency Relief Administration ("TERA"), in which state funds were channeled to localities for public assistance, rather than used for direct relief. See Brown, supra note 73, at 90 (describing funding mechanisms under TERA).
190. See Edward S. Corwin, The Extension of Judicial Review in New York, 1783- 1905, 15 Mich. L. Rev. 281, 299 (1917) (noting that the New York Constitution prohibited "gratuities by local government").
191. See Brown, supra note 73, at 7 n.12 (discussing the judicial invalidation of outdoor relief in Brooklyn in 1879, and stating that "[t]he very fact that this could happen shows the unsubstantial nature of the foundation upon which the system of poor relief rests"); Feder, supra note 102, at 186-88 (citing legal difficulties surrounding New York City bond measures designed for poor relief in the period 1893-97); Schneider & Deutsch, supra note 78, at 299 (noting that "the situation was complicated" in New York City due to this clause).
192. See Brown, supra note 73, at 7 n.12 (discussing the judicial invalidation of outdoor relief in Brooklyn in 1879, and stating that "[t]he very fact that this could happen shows the unsubstantial nature of the foundation upon which the system of poor relief rests"); Feder, supra note 102, at 186-88 (citing legal difficulties surrounding New York City bond measures designed for poor relief in the period 1893-97); Schneider & Deutsch, supra note 78, at 299 (noting that "the situation was complicated" in New York City due to this clause).
193. See Brown, supra note 73, at 7 n.12 (discussing the judicial invalidation of outdoor relief in Brooklyn in 1879, and stating that "[t]he very fact that this could happen shows the unsubstantial nature of the foundation upon which the system of poor relief rests"); Feder, supra note 102, at 186-88 (citing legal difficulties surrounding New York City bond measures designed for poor relief in the period 1893-97); Schneider & Deutsch, supra note 78, at 299 (noting that "the situation was complicated" in New York City due to this clause).
194. See Tucker v. Toia, 371 N.E.2d 449, 451-52 (N.Y. 1977).
195. Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 Harv. L. Rev. 1381, 1413 (1993) (quoting Robert Wagner, The Ideal Industrial State, N.Y. Times, May 9, 1937 (Magazine), at 8). Many historians have noted the "experimental" atmosphere of the New Deal period. See, e.g., Crouse, supra note 74, at 53 (stating that FDR "recognized the need for experimentation, change, and immediate action"); Susan Ware, Beyond Suffrage: Women in the New Deal 6 (1981) (describing the "experimental, reformist atmosphere of the New Deal"); Simon, Rights and Redistribution, supra note 70, at 1447-49 (describing FERA as "daring, experimental, redistributive, and disrespectful of the lines that separated workers from nonworkers").
196. Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 Harv. L. Rev. 1381, 1413 (1993) (quoting Robert Wagner, The Ideal Industrial State, N.Y. Times, May 9, 1937 (Magazine), at 8). Many historians have noted the "experimental" atmosphere of the New Deal period. See, e.g., Crouse, supra note 74, at 53 (stating that FDR "recognized the need for experimentation, change, and immediate action"); Susan Ware, Beyond Suffrage: Women in the New Deal 6 (1981) (describing the "experimental, reformist atmosphere of the New Deal"); Simon, Rights and Redistribution, supra note 70, at 1447-49 (describing FERA as "daring, experimental, redistributive, and disrespectful of the lines that separated workers from nonworkers").
197. Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 Harv. L. Rev. 1381, 1413 (1993) (quoting Robert Wagner, The Ideal Industrial State, N.Y. Times, May 9, 1937 (Magazine), at 8). Many historians have noted the "experimental" atmosphere of the New Deal period. See, e.g., Crouse, supra note 74, at 53 (stating that FDR "recognized the need for experimentation, change, and immediate action"); Susan Ware, Beyond Suffrage: Women in the New Deal 6 (1981) (describing the "experimental, reformist atmosphere of the New Deal"); Simon, Rights and Redistribution, supra note 70, at 1447-49 (describing FERA as "daring, experimental, redistributive, and disrespectful of the lines that separated workers from nonworkers").
198. Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 Harv. L. Rev. 1381, 1413 (1993) (quoting Robert Wagner, The Ideal Industrial State, N.Y. Times, May 9, 1937 (Magazine), at 8). Many historians have noted the "experimental" atmosphere of the New Deal period. See, e.g., Crouse, supra note 74, at 53 (stating that FDR "recognized the need for experimentation, change, and immediate action"); Susan Ware, Beyond Suffrage: Women in the New Deal 6 (1981) (describing the "experimental, reformist atmosphere of the New Deal"); Simon, Rights and Redistribution, supra note 70, at 1447-49 (describing FERA as "daring, experimental, redistributive, and disrespectful of the lines that separated workers from nonworkers").
199. Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 Harv. L. Rev. 1381, 1413 (1993) (quoting Robert Wagner, The Ideal Industrial State, N.Y. Times, May 9, 1937 (Magazine), at 8). Many historians have noted the "experimental" atmosphere of the New Deal period. See, e.g., Crouse, supra note 74, at 53 (stating that FDR "recognized the need for experimentation, change, and immediate action"); Susan Ware, Beyond Suffrage: Women in the New Deal 6 (1981) (describing the "experimental, reformist atmosphere of the New Deal"); Simon, Rights and Redistribution, supra note 70, at 1447-49 (describing FERA as "daring, experimental, redistributive, and disrespectful of the lines that separated workers from nonworkers").
200. Helvering v. Davis, 301 U.S. 619, 641 (1937).
201. See Theodore J. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority 132-33 (1969); Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 Stan. L. Rev. 247, 255 (1996) (stating that New Deal enactments were marked by "open-ended delegations of authority"). But cf. Guido Calabresi, A Common Law for the Age of Statutes 5 (1982) (explaining that "unlike earlier codifications of law, which were so general that common law courts could continue to act pretty much as they always had, the new breed of statutes [in the post-New Deal period] were specific, detailed, and 'well drafted'" (quoting Grant Gilmore, The Ages of American Law 96 (1977))).
202. See Theodore J. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority 132-33 (1969); Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 Stan. L. Rev. 247, 255 (1996) (stating that New Deal enactments were marked by "open-ended delegations of authority"). But cf. Guido Calabresi, A Common Law for the Age of Statutes 5 (1982) (explaining that "unlike earlier codifications of law, which were so general that common law courts could continue to act pretty much as they always had, the new breed of statutes [in the post-New Deal period] were specific, detailed, and 'well drafted'" (quoting Grant Gilmore, The Ages of American Law 96 (1977))).
203. See Theodore J. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority 132-33 (1969); Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 Stan. L. Rev. 247, 255 (1996) (stating that New Deal enactments were marked by "open-ended delegations of authority"). But cf. Guido Calabresi, A Common Law for the Age of Statutes 5 (1982) (explaining that "unlike earlier codifications of law, which were so general that common law courts could continue to act pretty much as they always had, the new breed of statutes [in the post-New Deal period] were specific, detailed, and 'well drafted'" (quoting Grant Gilmore, The Ages of American Law 96 (1977))).
204. See Theodore J. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority 132-33 (1969); Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 Stan. L. Rev. 247, 255 (1996) (stating that New Deal enactments were marked by "open-ended delegations of authority"). But cf. Guido Calabresi, A Common Law for the Age of Statutes 5 (1982) (explaining that "unlike earlier codifications of law, which were so general that common law courts could continue to act pretty much as they always had, the new breed of statutes [in the post-New Deal period] were specific, detailed, and 'well drafted'" (quoting Grant Gilmore, The Ages of American Law 96 (1977))).
205. See, e.g., American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946) (stating that judicial acquiescence in legislative delegations of power to administrative agencies is "a reflection of the necessities of modern legislation dealing with complex economic and social problems"); Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO v. Connally, 337 F. Supp. 737, 746 (D.D.C. 1971) (allowing administrative delegation subject to review by Congress, the courts, and the public). See generally Merrick B. Garland, Deregulation and Judicial Review, 98 Harv. L. Rev. 505, 510-12 (1985) (discussing trends in judicial review of administrative action).
206. Cf. Robert F. Williams, State Constitutional Law Processes, 24 Wm. & Mary L. Rev. 169, 202 (1983) (connecting popular distrust of state legislatures with "the insertion of specific 'constitutional legislation' into state constitutional texts, thereby supplanting legislative prerogatives" (citations omitted)). As early as 1920, a commentator explained this general trend in state constitutionalism: Constructions of state constitutions have in the main been restrictive of legislative power. They have been primarily responsible for the insertion into state constitutions within recent years of a large mass of social and labor legislation; but provisions inserted in a constitution in order to relieve from the operation of previous decisions become themselves in turn subject to a restrictive interpretation. W. F. Dodd, The Problem of State Constitutional Construction, 20 Colum. L. Rev. 635, 647 (1920); cf. Lawrence Schlam, State Constitutional Amending, Independent Interpretation, and Political Culture: A Case Study in Constitutional Stagnation, 43 DePaul L. Rev. 269, 282 (1994) (stating that "many legislatively initiated amendments might have been necessary to reverse the deleterious effects of earlier judicial opinions interpreting constitutional or statutory provisions" (citations omitted)).
207. Cf. Robert F. Williams, State Constitutional Law Processes, 24 Wm. & Mary L. Rev. 169, 202 (1983) (connecting popular distrust of state legislatures with "the insertion of specific 'constitutional legislation' into state constitutional texts, thereby supplanting legislative prerogatives" (citations omitted)). As early as 1920, a commentator explained this general trend in state constitutionalism: Constructions of state constitutions have in the main been restrictive of legislative power. They have been primarily responsible for the insertion into state constitutions within recent years of a large mass of social and labor legislation; but provisions inserted in a constitution in order to relieve from the operation of previous decisions become themselves in turn subject to a restrictive interpretation. W. F. Dodd, The Problem of State Constitutional Construction, 20 Colum. L. Rev. 635, 647 (1920); cf. Lawrence Schlam, State Constitutional Amending, Independent Interpretation, and Political Culture: A Case Study in Constitutional Stagnation, 43 DePaul L. Rev. 269, 282 (1994) (stating that "many legislatively initiated amendments might have been necessary to reverse the deleterious effects of earlier judicial opinions interpreting constitutional or statutory provisions" (citations omitted)).
208. Cf. Robert F. Williams, State Constitutional Law Processes, 24 Wm. & Mary L. Rev. 169, 202 (1983) (connecting popular distrust of state legislatures with "the insertion of specific 'constitutional legislation' into state constitutional texts, thereby supplanting legislative prerogatives" (citations omitted)). As early as 1920, a commentator explained this general trend in state constitutionalism: Constructions of state constitutions have in the main been restrictive of legislative power. They have been primarily responsible for the insertion into state constitutions within recent years of a large mass of social and labor legislation; but provisions inserted in a constitution in order to relieve from the operation of previous decisions become themselves in turn subject to a restrictive interpretation. W. F. Dodd, The Problem of State Constitutional Construction, 20 Colum. L. Rev. 635, 647 (1920); cf. Lawrence Schlam, State Constitutional Amending, Independent Interpretation, and Political Culture: A Case Study in Constitutional Stagnation, 43 DePaul L. Rev. 269, 282 (1994) (stating that "many legislatively initiated amendments might have been necessary to reverse the deleterious effects of earlier judicial opinions interpreting constitutional or statutory provisions" (citations omitted)).
209. See Galie, supra note 75, at 238 ("Article XVII established an affirmative social right which any individual may demand from the government. It required the state to assume a major role in the field of social welfare."). Similarly, William R. Brock reports, "Thus New York wrote into its constitution a new concept of public responsibility for welfare and swept away restraints on actions intended to relieve the distress, safeguard the health, and improve the quality of life of the poorest people in society." Brock, supra note 72, at 350 .
210. See Galie, supra note 75, at 238 ("Article XVII established an affirmative social right which any individual may demand from the government. It required the state to assume a major role in the field of social welfare."). Similarly, William R. Brock reports, "Thus New York wrote into its constitution a new concept of public responsibility for welfare and swept away restraints on actions intended to relieve the distress, safeguard the health, and improve the quality of life of the poorest people in society." Brock, supra note 72, at 350 .
211. See Arthur E. Sutherland, Jr., Lawmaking by Popular Vote: Some Reflections on the New York Constitution of 1938, 24 Cornell L.Q. 1, 1-5 (1938) (stating that the Convention of 1938 sought to provide the state legislature with broad flexibility to deal with social problems).
212. Cf. Jack N. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49 Stan. L. Rev. 1031, 1031 (1997) (explaining that "critical history appeals to those who seek to rescue lost voices of the past from the hegemonic claims of the victors whose triumphs the discipline of history has often served and promoted").
213. See, e.g., David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 865-66 (1986) (arguing that "[t]he Framers would have been astounded to hear it contended that by adopting the Bill of Rights they had managed to make mandatory the exercise of a Congressional power to help needy citizens . . . ."). But cf. Wendy E. Parmet, Health Care and the Constitution: Public Health and the Role of the State in the Framing Era, 20 Hastings Const. L.Q. 267, 277 (1993) (presenting an originalist argument that "[i]n the framing generation, governments were expected to furnish disease prevention programs and provisions to secure the public health because the Framers believed that governmental authority was tied to the protection of health and safety").
214. See, e.g., David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 865-66 (1986) (arguing that "[t]he Framers would have been astounded to hear it contended that by adopting the Bill of Rights they had managed to make mandatory the exercise of a Congressional power to help needy citizens . . . ."). But cf. Wendy E. Parmet, Health Care and the Constitution: Public Health and the Role of the State in the Framing Era, 20 Hastings Const. L.Q. 267, 277 (1993) (presenting an originalist argument that "[i]n the framing generation, governments were expected to furnish disease prevention programs and provisions to secure the public health because the Framers believed that governmental authority was tied to the protection of health and safety").
215. See Michael C. Dorf, The Supreme Court, 1997 Term - Foreword: The Limits of Socratic Deliberation, 112 Harv. L. Rev. 4, 10 n.23 (1998) ("characterizing originalism . . . as backward-looking [but] . . . not deny[ing] that originalist arguments are often invoked as a means of breaking with established precedent"). But see Robert W. Gordon, Historicism in Legal Scholarship, 90 Yale L.J. 1017, 1024 (1981) (recognizing that although "legal history has on the whole served to bolster and reassure existing enterprises of legal scholarship . . . historicist criticism is always ultimately destabilizing to the enterprise").
216. See Michael C. Dorf, The Supreme Court, 1997 Term - Foreword: The Limits of Socratic Deliberation, 112 Harv. L. Rev. 4, 10 n.23 (1998) ("characterizing originalism . . . as backward-looking [but] . . . not deny[ing] that originalist arguments are often invoked as a means of breaking with established precedent"). But see Robert W. Gordon, Historicism in Legal Scholarship, 90 Yale L.J. 1017, 1024 (1981) (recognizing that although "legal history has on the whole served to bolster and reassure existing enterprises of legal scholarship . . . historicist criticism is always ultimately destabilizing to the enterprise").
217. Cf. Bruce Ackerman, The Rise of World Constitutionalism, 83 Va. L. Rev. 771, 773 (1997) (observing that "[t]he standard [U.S.] judge or lawyer would hardly raise an eyebrow when told, for example, that existing American law on . . . welfare rights offends basic constitutional principles as the rest of the civilized world has come to understand them"); Nelson, supra note 99, at 6 (contending that "the current wisdom loses sight of a vibrant body of New York law that emerged in the middle of the twentieth century and contributed significantly to some people's attainment of their goal of equality, even while refusing to grant them a right to equality").
218. Cf. Bruce Ackerman, The Rise of World Constitutionalism, 83 Va. L. Rev. 771, 773 (1997) (observing that "[t]he standard [U.S.] judge or lawyer would hardly raise an eyebrow when told, for example, that existing American law on . . . welfare rights offends basic constitutional principles as the rest of the civilized world has come to understand them"); Nelson, supra note 99, at 6 (contending that "the current wisdom loses sight of a vibrant body of New York law that emerged in the middle of the twentieth century and contributed significantly to some people's attainment of their goal of equality, even while refusing to grant them a right to equality").
219. Robert W. Gordon, The Struggle Over the Past, 44 Clev. St. L. Rev. 123, 142 (1996); cf. Herman Belz, History, Theory, and the Constitution, 11 Const. Commentary 45, 55 (1994) (stating Robert Gordon's contention that "history in general liberates the political imagination by revealing suppressed alternatives").
220. Robert W. Gordon, The Struggle Over the Past, 44 Clev. St. L. Rev. 123, 142 (1996); cf. Herman Belz, History, Theory, and the Constitution, 11 Const. Commentary 45, 55 (1994) (stating Robert Gordon's contention that "history in general liberates the political imagination by revealing suppressed alternatives").
221. Cf. Daphna Lewison-Zamir, Consumer Preferences, Citizen Preferences, and the Provision of Public Goods, 108 Yale L.J. 377, 380 (1998) (distinguishing between consumer and voter preferences).
222. Cf. Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad 16-17 (1994) (distinguishing between "minimal morality" and "thickly conceived values"); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993) (discussing the thinness of federal constitutional law). But cf. James E. Fleming & Linda C. McClain, In Search of a Substantive Republic, 76 Tex. L. Rev. 509, 519-20 (1997) (reviewing Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996), and Cass R. Sunstein, Legal Reasoning and Political Conflict (1996)) (discussing the place of welfare rights in thick and thin conceptions of federal constitutionalism).
223. Cf. Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad 16-17 (1994) (distinguishing between "minimal morality" and "thickly conceived values"); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993) (discussing the thinness of federal constitutional law). But cf. James E. Fleming & Linda C. McClain, In Search of a Substantive Republic, 76 Tex. L. Rev. 509, 519-20 (1997) (reviewing Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996), and Cass R. Sunstein, Legal Reasoning and Political Conflict (1996)) (discussing the place of welfare rights in thick and thin conceptions of federal constitutionalism).
224. Cf. Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad 16-17 (1994) (distinguishing between "minimal morality" and "thickly conceived values"); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993) (discussing the thinness of federal constitutional law). But cf. James E. Fleming & Linda C. McClain, In Search of a Substantive Republic, 76 Tex. L. Rev. 509, 519-20 (1997) (reviewing Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996), and Cass R. Sunstein, Legal Reasoning and Political Conflict (1996)) (discussing the place of welfare rights in thick and thin conceptions of federal constitutionalism).
225. Cf. Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad 16-17 (1994) (distinguishing between "minimal morality" and "thickly conceived values"); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993) (discussing the thinness of federal constitutional law). But cf. James E. Fleming & Linda C. McClain, In Search of a Substantive Republic, 76 Tex. L. Rev. 509, 519-20 (1997) (reviewing Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996), and Cass R. Sunstein, Legal Reasoning and Political Conflict (1996)) (discussing the place of welfare rights in thick and thin conceptions of federal constitutionalism).
226. Cf. Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad 16-17 (1994) (distinguishing between "minimal morality" and "thickly conceived values"); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410 (1993) (discussing the thinness of federal constitutional law). But cf. James E. Fleming & Linda C. McClain, In Search of a Substantive Republic, 76 Tex. L. Rev. 509, 519-20 (1997) (reviewing Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996), and Cass R. Sunstein, Legal Reasoning and Political Conflict (1996)) (discussing the place of welfare rights in thick and thin conceptions of federal constitutionalism).
227. O'Rourke & Campbell, supra note 75, at 117 (citation and internal quotation marks omitted).
228. Jeremy Waldron, Social Citizenship and the Defense of Welfare Provision, in Liberal Rights: Collected Papers 1981-1991, at 271, 273 (1993); see also, David Firestone, Clinton to Sign Welfare Bill that Ends U.S. Aid Guarantee and Gives States Broad Power, N.Y. Times, Aug. 1, 1996, at A1 (stating that the New York Constitution obligates "the state and city . . . to make up [the] difference" to people once AFDC is repealed (quoting Mayor Giuliani of New York City)).
229. Jeremy Waldron, Social Citizenship and the Defense of Welfare Provision, in Liberal Rights: Collected Papers 1981-1991, at 271, 273 (1993); see also, David Firestone, Clinton to Sign Welfare Bill that Ends U.S. Aid Guarantee and Gives States Broad Power, N.Y. Times, Aug. 1, 1996, at A1 (stating that the New York Constitution obligates "the state and city . . . to make up [the] difference" to people once AFDC is repealed (quoting Mayor Giuliani of New York City)).
230. Jerry L. Mashaw & Dylan S. Calsyn, Block Grants, Entitlements, and Federalism: A Conceptual Map of Contested Terrain, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition, supra note 4, at 279, 302.
231. Cf. William Van Alstyne, "Thirty Pieces of Silver" for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law, 16 Harv. J.L. & Pub. Pol'y 303, 307 (1993) (questioning whether the federal government may abridge state constitutional rights by placing conditions upon the receipt of federal funds).
232. Cf. Robert E. Goodin, Reasons for Welfare: The Political Theory of the Welfare State 184-233 (1988) (discussing the relation between welfare rights and government discretion to withhold assistance).
233. See Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 Sup. Ct. Rev. 341, 380 (discussing the ability of state governments to protect human rights); Michael H. Shuman, Going Local: Devolution for Progressives, Nation, Oct. 12, 1998, at 11, 15 (observing that devolution "open[s] up politics and governance to those who have long been disenfranchised").
234. See Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 Sup. Ct. Rev. 341, 380 (discussing the ability of state governments to protect human rights); Michael H. Shuman, Going Local: Devolution for Progressives, Nation, Oct. 12, 1998, at 11, 15 (observing that devolution "open[s] up politics and governance to those who have long been disenfranchised").
235. See Clayton P. Gillette, In Partial Praise of Dillon's Rule, or, Can Public Choice Theory Justify Local Government Law?, 67 Chi.-Kent L. Rev. 959, 960 (1991) (discussing the tendency of local communities to cater to special interests).
236. See Edward L. Rubin, The Fundamentality and Irrelevance of Federalism, 13 Ga. St. U. L. Rev. 1009, 1014 & n.20 (1997) (stating that on "an empirical basis, it has often been the national government, not state governments, that has encouraged citizen participation and programmatic experimentation" on welfare issues).
237. See Richard Briffault, Our Localism: Part II - Localism and Legal Theory, 90 Colum. L. Rev. 346, 438 (1990) (contending that the "jurisdictional separation of wealth and need that results from the fragmentation of most metropolitan areas into a central city surrounded by a multiplicity of suburbs perpetuates interpersonal as well as interlocal economic and social inequalities").
238. Paul E. Peterson, City Limits 31 (1981). To the contrary, "limits on local government . . . require that local governments concentrate on developmental as against redistributive objectives." Id. at 69.
239. See Michael H. Schill & Susan M. Wachter, Housing Market Constraints and Spatial Stratification by Income and Race, 6 Housing Pol'y Debate 141, 141-42 (1995) (discussing housing market constraints and spatial stratification by race and class).
240. See, e.g., Martha Derthick, New Towns In-Town: Why a Federal Program Failed at xv (1972) (discussing the capture of low-income housing funds). A state mandate for the provision of welfare services is thus warranted from a public choice perspective, for the ease of local exit options could facilitate middle class defection from local welfare solutions, leaving the poor locked into towns that lack fiscal capacity to carry out social service delivery. For example, to the extent that welfare reform will attempt innovative solutions linked to education and jobs training, there is likely to be a mismatch between local employment supply and the needs of indigent residents; transportation, housing, and education deficits are likely to compound the problem. These factors, combined with the vulnerability of localities to narrow interest group capture, make the concept of state duty central to a devolutionary approach.
241. The normative justification for local control of public assistance is far less weighty than that of local control of public education. Courts have tended to treat local control of schools as a constitutional or quasi-constitutional imperative, in part because it is perceived as implicating a parent's right to raise her child. Commentators increasingly question the basis for this approach. See, e.g., Richard Briffault, The Role of Local Control in School Finance Reform, 24 Conn. L. Rev. 773, 784 (1992) (questioning the role of local control in state constitutional school finance cases); Georgette C. Poindexter, Collective Individualism: Deconstructing the Legal City, 145 U. Pa. L. Rev. 607, 663-64 (1997) (arguing that city boundaries are "inapposite to modern social and economic development"). But see Mark C. Gordon, Differing Paradigms, Similar Flaws: Constructing a New Approach to Federalism in Congress and the Court, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition, supra note 4, at 187, 220-21 (emphasizing the importance of localities in welfare devolution).
242. The normative justification for local control of public assistance is far less weighty than that of local control of public education. Courts have tended to treat local control of schools as a constitutional or quasi-constitutional imperative, in part because it is perceived as implicating a parent's right to raise her child. Commentators increasingly question the basis for this approach. See, e.g., Richard Briffault, The Role of Local Control in School Finance Reform, 24 Conn. L. Rev. 773, 784 (1992) (questioning the role of local control in state constitutional school finance cases); Georgette C. Poindexter, Collective Individualism: Deconstructing the Legal City, 145 U. Pa. L. Rev. 607, 663-64 (1997) (arguing that city boundaries are "inapposite to modern social and economic development"). But see Mark C. Gordon, Differing Paradigms, Similar Flaws: Constructing a New Approach to Federalism in Congress and the Court, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition, supra note 4, at 187, 220-21 (emphasizing the importance of localities in welfare devolution).
243. The normative justification for local control of public assistance is far less weighty than that of local control of public education. Courts have tended to treat local control of schools as a constitutional or quasi-constitutional imperative, in part because it is perceived as implicating a parent's right to raise her child. Commentators increasingly question the basis for this approach. See, e.g., Richard Briffault, The Role of Local Control in School Finance Reform, 24 Conn. L. Rev. 773, 784 (1992) (questioning the role of local control in state constitutional school finance cases); Georgette C. Poindexter, Collective Individualism: Deconstructing the Legal City, 145 U. Pa. L. Rev. 607, 663-64 (1997) (arguing that city boundaries are "inapposite to modern social and economic development"). But see Mark C. Gordon, Differing Paradigms, Similar Flaws: Constructing a New Approach to Federalism in Congress and the Court, in Symposium Issue: Constructing a New Federalism: Jurisdictional Competence and Competition, supra note 4, at 187, 220-21 (emphasizing the importance of localities in welfare devolution).
244. See Martha Albertson Fineman, The Nature of Dependencies and Welfare "Reform," 36 Santa Clara L. Rev. 287, 288-94 (1996) (discussing the conception of dependency that informs efforts to reform public assistance).
245. Cf. David Abraham, Liberty Without Equality: The Property-Rights Connection in a "Negative Citizenship" Regime, 21 L. & Soc. Inquiry 1, 20-22 (1996) (describing the New Deal concept of social citizenship).
246. Some commentators argue that AFDC-style welfare benefits may no longer be relevant to dealing with the problems of poverty. For example, Herbert J. Gans maintains that, "what is needed is more drastic: a job-centered economic security program for all Americans in occupational and related economic difficulties . . . ." Herbert J. Gans, The So-Called Underclass and the Future of Antipoverty Policy, in Myths About the Powerless: Contesting Social Inequalities 87, 97 (M. Brinton Lykes et al. eds., 1996) (emphasis in original).
247. See Hershkoff, supra note 27 (manuscript at 52-57).
248. See Stephen Loffredo, Poverty, Democracy and Constitutional Law, 141 U. Pa. L. Rev. 1277, 1291-93 (1993); cf. Jack M. Beermann, Administrative Failure and Local Democracy: The Politics of DeShaney, 1990 Duke L.J. 1078, 1100-07 (recommending judicial review as a cure for local administrative failure).
249. See Stephen Loffredo, Poverty, Democracy and Constitutional Law, 141 U. Pa. L. Rev. 1277, 1291-93 (1993); cf. Jack M. Beermann, Administrative Failure and Local Democracy: The Politics of DeShaney, 1990 Duke L.J. 1078, 1100-07 (recommending judicial review as a cure for local administrative failure).
250. Craig Volden, Entrusting the States with Welfare Reform, in The New Federalism: Can the States Be Trusted? 65, 92 (John A. Ferejohn & Barry R. Weingast eds., 1997) ("[S]tates will reap financial rewards either from cutting benefit levels or from helping (or forcing) recipients off welfare."); cf. Paul E. Peterson, The Price of Federalism 126 (1995) (anticipating that under the then proposed welfare reform bill, "the race to the bottom is almost certain to intensify").
251. Craig Volden, Entrusting the States with Welfare Reform, in The New Federalism: Can the States Be Trusted? 65, 92 (John A. Ferejohn & Barry R. Weingast eds., 1997) ("[S]tates will reap financial rewards either from cutting benefit levels or from helping (or forcing) recipients off welfare."); cf. Paul E. Peterson, The Price of Federalism 126 (1995) (anticipating that under the then proposed welfare reform bill, "the race to the bottom is almost certain to intensify").
252. See Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization 277 (1994) (stating that litigation opens up "new ideological and organizational possibilities for expanding rights and increasing power"); Joseph L. Sax, Defending the Environment: A Strategy for Citizen Action at xviii (1970) ("[C]ourts can be used to bring important matters to legislative attention, to force them upon the agendas of reluctant and busy representatives.").
253. See Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization 277 (1994) (stating that litigation opens up "new ideological and organizational possibilities for expanding rights and increasing power"); Joseph L. Sax, Defending the Environment: A Strategy for Citizen
254. See Joel F. Handler, "Constructing the Political Spectacle": The Interpretation of Entitlements, Legislation, and Obligations in Social Welfare History, 56 Brook. L. Rev. 899, 965-74 (1990) (discussing rights as affirmation); Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. Rev. L. & Soc. Change 535, 538-42 (1987-88) (discussing client-centered mobilization activities).
255. See Joel F. Handler, "Constructing the Political Spectacle": The Interpretation of Entitlements, Legislation, and Obligations in Social Welfare History, 56 Brook. L. Rev. 899, 965-74 (1990) (discussing rights as affirmation); Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. Rev. L. & Soc. Change 535, 538-42 (1987-88) (discussing client-centered mobilization activities).
256. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 10-11 (1996) (stating that "[historical] research can lay an evidentiary basis for originalist interpretation, but it can also undermine critical assumptions on which invocations of original meaning depend, and expose the flawed conclusions they reach").