Constitutional welfare rights: A history, critique and reconstruction

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 1821-1891

  Forbath, William E ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 0035610064     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (383)

1. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-293, 1996 U.S.C.C.A.N. (110 Stat.) 2015 (repealing Aid to Families with Dependent Children).
2. See Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585 (1975).
3. See J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1703, 1734 (1997).
4. Id.
5. Id. at 1732-33.
6. Id.
7. Id.
8. Lawrence Lessig, Colloquy, Fidelity as Translation, 65 Fordham L. Rev. 1507, 1509-10 (1997).
9. Id. at 1509.
10. Id.
11. Frank I. Michelman, The Supreme Court 1968 Term-Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969) [hereinafter Michelman, Protecting the Poor].
12. Lessig, supra note 8, at 1509-10.
13. Id. at 1510.
14. Id. at 1509.
15. See Cass R. Sunstein, The Partial Constitution 138-41 (1993); Akhil Reed Amar, Forty Acres and a Mule: A Republican Theory of Minimal Entitlements, 13 Harv. J.L. & Pub. Pol'y 37 (1990); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410, 419 (1993).
16. See Cass R. Sunstein, The Partial Constitution 138-41 (1993); Akhil Reed Amar, Forty Acres and a Mule: A Republican Theory of Minimal Entitlements, 13 Harv. J.L. & Pub. Pol'y 37 (1990); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410, 419 (1993).
17. See Cass R. Sunstein, The Partial Constitution 138-41 (1993); Akhil Reed Amar, Forty Acres and a Mule: A Republican Theory of Minimal Entitlements, 13 Harv. J.L. & Pub. Pol'y 37 (1990); Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 Nw. U. L. Rev. 410, 419 (1993).
18. See J.M. Balkin, The Constitution of Status, 106 Yale L.J. 2313 (1997).
19. See Ronald Dworkin, Freedom's Law 36 (1996).
20. Lessig, supra note 8, at 1509.
21. Id. at 1510-11, 1517.
22. See Peter B. Edelman, The Next Century of Our Constitution: Rethinking Our Duty to the Poor, 39 Hastings L.J. 1 (1987); Lessig, supra note 8, at 1510-11, 1517.
23. 347 U.S. 483 (1954).
24. See William E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1 (1999). The account of the social citizenship tradition that follows draws on this article.
25. Jas. F. Hudson, Railways: Their Uses and Abuses, and Their Effect Upon Republican Institutions and Productive Industries, Nat'l Economist, May 11, 1889, at 113, quoted in Forbath, supra note 22, at 43.
26. Jas. F. Hudson, Railways: Their Uses and Abuses, and Their Effect Upon Republican Institutions and Productive Industries, No. 2, Nat'l Economist, May 18, 1889, at 137, quoted in Forbath, supra note 22, at 43.
27. Id.
28. Id.
29. See Forbath, supra note 22, at 43-49.
30. See William E. Forbath, Law and the Shaping of the American Labor Movement (1991) [hereinafter Forbath, American Labor Movement]; William E. Forbath, Courts, Constitutions, and Labor Politics in England and America, 16 Law & Soc. Inquiry 1 (1991); Forbath, supra note 22.
31. See William E. Forbath, Law and the Shaping of the American Labor Movement (1991) [hereinafter Forbath, American Labor Movement]; William E. Forbath, Courts, Constitutions, and Labor Politics in England and America, 16 Law & Soc. Inquiry 1 (1991); Forbath, supra note 22.
32. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
33. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
34. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
35. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
36. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
37. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
38. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
39. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
40. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
41. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
42. Herbert Croly, Progressive Democracy 215, 380, 384 (1914). On Progressive efforts at creating state-based social insurance, see generally Arthur Link and Richard McCormick, Progressivism (1983); Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992) [hereinafter Skocpol, Protecting Soldiers and Mothers]; David Thelen, Robert M. Lafollette and the Insurgent Spirit (1976); David Thelen, The New Citizenship: Origins of Progressivism in Wisconsin, 1885-1900 (1972). See generally, Udo Sautter, Three Cheers for the Unemployed: Government and Unemployment Before the New Deal (1991). On the Progressives as state-builders and would-be state-builders, see William Forbath, Law and the Shaping of Labor Politics in the United States and England, in Labor Law in America: Historical and Critical Essays 201 (Christopher L. Tomlins & Andrew J. King, eds. 1992); Forbath, American Labor Movement, supra note 28; Kathryn Kish Sklar, Two Political Cultures in the Progressive Era, in United States History as Women's History (Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar eds. 1995); Skocpol, Protecting Soldiers and Mothers supra; Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
43. Croly, supra note 29, at 125.
44. Id. at 46, 58, 125, 215.
45. Id. at 208-09.
46. Id. at 144.
47. Id. at 146-47, 158.
48. Id. at 150.
49. Id. at 240.
50. Id. at 209.
51. Id. at 151. How best to institutionalize this more democratic form of constitutional review was a matter Croly left to others; his only concrete proposal for constitutional change was amending the amendment process. Some Progressives advocated an end to judicial review, others called for empowering Congress to reenact with super-majorities laws invalidated by the courts. See William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (1994).
52. Croly, supra note 29, at 199.
53. Franklin D. Roosevelt, New Conditions Impose New Requirements Upon Government and Those Who Conduct Government, Campaign Address at the Commonwealth Club, San Francisco, Calif. (Sept. 23, 1932), in 1 The Public Papers of Franklin D. Roosevelt 752, 753 (1938) [hereinafter Roosevelt, Public Papers].
54. Id. at 745.
55. Id. at 746.
56. Id. at 746, 749.
57. Id. at 752.
58. Id. at 754.
59. Franklin D. Roosevelt, Objectives of the Administration, (June 8, 1934), in Roosevelt, 3 Public Papers, supra note 40, at 291-92.
60. H.R. Doc. No. 81, 79 Cong. Rec. 1, 546 (1935).
61. 79 Cong. Rec. 9283, 9284 (1935) (remarks of Sen. Wagner).
62. See, e.g., Franklin D. Roosevelt, Acceptance of the Renomination for the Presidency, Philadelphia, Pennsylvania (June 27, 1936) in Roosevelt, 5 Public Papers, supra note 40, at 233-34 (struggling against economic "tyranny" has given "us as a people a new understanding of our Government and of ourselves" . . . inherited understandings had brought us to the brink of "economic slavery," . . . Now we know "freedom is no half and half affair." Government has "inescapable obligations" to "protect the citizen in his right to work and his right to live" no less than "in his right to vote.").
63. Preliminary Report of the Staff of the Committee on Economic Security 415 (Sept. 1934), reprinted in Statutory History of the United States: Income Security 72, 73 (Robert B. Stevens ed., 1970).
64. Preliminary Report of the Staff of the Committee on Economic Security 415 (Sept. 1934), reprinted in Statutory History of the United States: Income Security 72, 73 (Robert B. Stevens ed., 1970).
65. John Ellingston, William Draper Lewis, C. Wilfred Jenks, chair and members drafting committee, Full Employment Act of 1945: Hearings Before a Subcommittee on Banking and Currency on S. 380, 79th Cong., 1st Sess. 1248-59 (1945) (Statement of Essential Human Rights, The Right to Work).
66. Id. at 1248-49.
67. Id. at 1254.
68. Id. at 1257.
69. Id. at 1258.
70. Key describes how the Dixiecrats exercised this power to veto civil rights legislation. See V.O. Key, Jr., Southern Politics in State and Nation 345-82 (1949). But the Dixiecrats used their veto power more broadly.
71. Senator Carter Glass of Virginia, quoted in Harvard Sitkoff, 1 A New Deal for Blacks: The Depression Decade 104 (1978). See also, Gavin Wright, Old South, New South: Revolutions in the Southern Economy Since the Civil War 219 (1986) (quoting Congressman "Cotton Ed" Smith: "Any man on this floor who has sense enough to read the English language knows that the main objective of this bill [original Fair Labor Standards Bill] is, by human legislation, to overcome the splendid gifts of God to the South.")
72. Senator Carter Glass of Virginia, quoted in Harvard Sitkoff, 1 A New Deal for Blacks: The Depression Decade 104 (1978). See also, Gavin Wright, Old South, New South: Revolutions in the Southern Economy Since the Civil War 219 (1986) (quoting Congressman "Cotton Ed" Smith: "Any man on this floor who has sense enough to read the English language knows that the main objective of this bill [original Fair Labor Standards Bill] is, by human legislation, to overcome the splendid gifts of God to the South.")
73. See Arthur J. Altmeyer, The Formative Years of Social Security 14-15 (1966); Frances Perkins, The Roosevelt I Knew 287-92 (1946); Edwin E. Witte, The Development of the Social Security Act 3-110 (1962) (describing the history of the Social Security Act).
74. See Arthur J. Altmeyer, The Formative Years of Social Security 14-15 (1966); Frances Perkins, The Roosevelt I Knew 287-92 (1946); Edwin E. Witte, The Development of the Social Security Act 3-110 (1962) (describing the history of the Social Security Act).
75. See Arthur J. Altmeyer, The Formative Years of Social Security 14-15 (1966); Frances Perkins, The Roosevelt I Knew 287-92 (1946); Edwin E. Witte, The Development of the Social Security Act 3-110 (1962) (describing the history of the Social Security Act).
76. See generally Altmeyer, supra note 58, at 35; Witte, supra note 58; Perkins, supra note 58, at 296-301; Kenneth Finegold, Agriculture and the Politics of U.S. Social Provision: Social Insurance and Food Stamps, in The Politics of Social Policy in the United States 199-234 (Margaret Weir et al. eds., 1988).
77. See generally, Sitkoff, supra note 57; James T. Patterson, Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress, 1933-1939 (1967);
78. Nancy J. Weiss, Farewell to the Party of Lincoln: Black Politics in the Age of FDR (1983) [hereinafter Weiss, Farewell to the Party of Lincoln]; Finegold, supra note 59;
79. Ira Katznelson et al., Limiting Liberalism: The Southern Veto in Congress, 1933-1950, 108 Pol. Sci. Q. 283 (1993) [hereinafter Katznelson, et al., Limiting Liberalism].
80. Sitkoff, supra note 57, at 103.
81. Id. at 122-44. See also Weiss, Farewell to the Party of Lincoln, supra note 60, at 180-208. Early New Deal programs like the AAA had been tailored by local southern elites and their powerful representatives in Congress to pour aid into southern agriculture without upsetting the plantation system, the very inequities of these programs from tenants' and sharecroppers' perspective sparked protests and national debate. CIO organizers, NAACP leaders, and progressive New Deal administrators lent support to grassroots movements like the biracial Southern Tenant Farmers Union, and wheedled new programs for tenants and sharecroppers from sympathetic New Dealers in Washington. See Sidney Baldwin, The Rise and Delcine of The Farm Security Admnistration (1968); David Conrad, The Forgotten Farmers: The Story of Sharecroppers in The New Deal (1968); Donald Grubbs, Cry from the Cotton: The Southern Tenant Farmers' Union (1971); Edwin Nourse et al., Three Years of The Agricultural Adjustment Adminstration (1937); Lee Alston and Joseph Ferrie, Resisting the Welfare State: Southern Opposition to the Farm Security Administration, in The Emergence of the Modern Political Economy (Robert Higgs ed., 1985).
82. Id. at 122-44. See also Weiss, Farewell to the Party of Lincoln, supra note 60, at 180-208. Early New Deal programs like the AAA had been tailored by local southern elites and their powerful representatives in Congress to pour aid into southern agriculture without upsetting the plantation system, the very inequities of these programs from tenants' and sharecroppers' perspective sparked protests and national debate. CIO organizers, NAACP leaders, and progressive New Deal administrators lent support to grassroots movements like the biracial Southern Tenant Farmers Union, and wheedled new programs for tenants and sharecroppers from sympathetic New Dealers in Washington. See Sidney Baldwin, The Rise and Delcine of The Farm Security Admnistration (1968); David Conrad, The Forgotten Farmers: The Story of Sharecroppers in The New Deal (1968); Donald Grubbs, Cry from the Cotton: The Southern Tenant Farmers' Union (1971); Edwin Nourse et al., Three Years of The Agricultural Adjustment Adminstration (1937); Lee Alston and Joseph Ferrie, Resisting the Welfare State: Southern Opposition to the Farm Security Administration, in The Emergence of the Modern Political Economy (Robert Higgs ed., 1985).
83. Id. at 122-44. See also Weiss, Farewell to the Party of Lincoln, supra note 60, at 180-208. Early New Deal programs like the AAA had been tailored by local southern elites and their powerful representatives in Congress to pour aid into southern agriculture without upsetting the plantation system, the very inequities of these programs from tenants' and sharecroppers' perspective sparked protests and national debate. CIO organizers, NAACP leaders, and progressive New Deal administrators lent support to grassroots movements like the biracial Southern Tenant Farmers Union, and wheedled new programs for tenants and sharecroppers from sympathetic New Dealers in Washington. See Sidney Baldwin, The Rise and Delcine of The Farm Security Admnistration (1968); David Conrad, The Forgotten Farmers: The Story of Sharecroppers in The New Deal (1968); Donald Grubbs, Cry from the Cotton: The Southern Tenant Farmers' Union (1971); Edwin Nourse et al., Three Years of The Agricultural Adjustment Adminstration (1937); Lee Alston and Joseph Ferrie, Resisting the Welfare State: Southern Opposition to the Farm Security Administration, in The Emergence of the Modern Political Economy (Robert Higgs ed., 1985).
84. Id. at 122-44. See also Weiss, Farewell to the Party of Lincoln, supra note 60, at 180-208. Early New Deal programs like the AAA had been tailored by local southern elites and their powerful representatives in Congress to pour aid into southern agriculture without upsetting the plantation system, the very inequities of these programs from tenants' and sharecroppers' perspective sparked protests and national debate. CIO organizers, NAACP leaders, and progressive New Deal administrators lent support to grassroots movements like the biracial Southern Tenant Farmers Union, and wheedled new programs for tenants and sharecroppers from sympathetic New Dealers in Washington. See Sidney Baldwin, The Rise and Delcine of The Farm Security Admnistration (1968); David Conrad, The Forgotten Farmers: The Story of Sharecroppers in The New Deal (1968); Donald Grubbs, Cry from the Cotton: The Southern Tenant Farmers' Union (1971); Edwin Nourse et al., Three Years of The Agricultural Adjustment Adminstration (1937); Lee Alston and Joseph Ferrie, Resisting the Welfare State: Southern Opposition to the Farm Security Administration, in The Emergence of the Modern Political Economy (Robert Higgs ed., 1985).
85. Id. at 122-44. See also Weiss, Farewell to the Party of Lincoln, supra note 60, at 180-208. Early New Deal programs like the AAA had been tailored by local southern elites and their powerful representatives in Congress to pour aid into southern agriculture without upsetting the plantation system, the very inequities of these programs from tenants' and sharecroppers' perspective sparked protests and national debate. CIO organizers, NAACP leaders, and progressive New Deal administrators lent support to grassroots movements like the biracial Southern Tenant Farmers Union, and wheedled new programs for tenants and sharecroppers from sympathetic New Dealers in Washington. See Sidney Baldwin, The Rise and Delcine of The Farm Security Admnistration (1968); David Conrad, The Forgotten Farmers: The Story of Sharecroppers in The New Deal (1968); Donald Grubbs, Cry from the Cotton: The Southern Tenant Farmers' Union (1971); Edwin Nourse et al., Three Years of The Agricultural Adjustment Adminstration (1937); Lee Alston and Joseph Ferrie, Resisting the Welfare State: Southern Opposition to the Farm Security Administration, in The Emergence of the Modern Political Economy (Robert Higgs ed., 1985).
86. Id. at 122-44. See also Weiss, Farewell to the Party of Lincoln, supra note 60, at 180-208. Early New Deal programs like the AAA had been tailored by local southern elites and their powerful representatives in Congress to pour aid into southern agriculture without upsetting the plantation system, the very inequities of these programs from tenants' and sharecroppers' perspective sparked protests and national debate. CIO organizers, NAACP leaders, and progressive New Deal administrators lent support to grassroots movements like the biracial Southern Tenant Farmers Union, and wheedled new programs for tenants and sharecroppers from sympathetic New Dealers in Washington. See Sidney Baldwin, The Rise and Delcine of The Farm Security Admnistration (1968); David Conrad, The Forgotten Farmers: The Story of Sharecroppers in The New Deal (1968); Donald Grubbs, Cry from the Cotton: The Southern Tenant Farmers' Union (1971); Edwin Nourse et al., Three Years of The Agricultural Adjustment Adminstration (1937); Lee Alston and Joseph Ferrie, Resisting the Welfare State: Southern Opposition to the Farm Security Administration, in The Emergence of the Modern Political Economy (Robert Higgs ed., 1985).
87. Sitkoff, supra note 57, at 123-24. See also Katznelson, et al. Limiting Liberalism, supra note 60, at 286-302, which analyzes Southern Democrats voting patterns in eighty-nine Senate and sixty-one House roll call votes on critical New Deal bills and amendments from 1933-50; Jill Quadagno, The Color of Welfare 1-23 (1994).
88. Sitkoff, supra note 57, at 123-24. See also Katznelson, et al. Limiting Liberalism, supra note 60, at 286-302, which analyzes Southern Democrats voting patterns in eighty- nine Senate and sixty-one House roll call votes on critical New Deal bills and amendments from 1933-50; Jill Quadagno, The Color of Welfare 1-23 (1994).
89. See Richard Bensel, Sectionalism and American Political Development 1880-1980, at 152-68 (1984); Marion Clawson, New Deal Planning: The National Resources Planning Board 283-332 (1981); Barry Dean Karl, Executive Reorganization and Reform In The New Deal: The Genesis of Administrative Management, 1900-1939 (1963); Katznelson, et al., Limiting Liberalism, supra note 60.
90. See Richard Bensel, Sectionalism and American Political Development 1880- 1980, at 152-68 (1984); Marion Clawson, New Deal Planning: The National Resources Planning Board 283-332 (1981); Barry Dean Karl, Executive Reorganization and Reform In The New Deal: The Genesis of Administrative Management, 1900-1939 (1963); Katznelson, et al., Limiting Liberalism, supra note 60.
91. See Richard Bensel, Sectionalism and American Political Development 1880- 1980, at 152-68 (1984); Marion Clawson, New Deal Planning: The National Resources Planning Board 283-332 (1981); Barry Dean Karl, Executive Reorganization and Reform In The New Deal: The Genesis of Administrative Management, 1900-1939 (1963); Katznelson, et al., Limiting Liberalism, supra note 60.
92. See Richard Bensel, Sectionalism and American Political Development 1880- 1980, at 152-68 (1984); Marion Clawson, New Deal Planning: The National Resources Planning Board 283-332 (1981); Barry Dean Karl, Executive Reorganization and Reform In The New Deal: The Genesis of Administrative Management, 1900-1939 (1963); Katznelson, et al., Limiting Liberalism, supra note 60.
93. See Clawson, supra note 64; The New Deal and the South (James C. Cobb & Michael V. Namorato eds., 1984). Stephen Kemp Bailey, Congress Makes a Law: The Story Behind the Employment Act of 1946 (1946) [hereinafter Bailey, Congress Makes a Law] provides the most detailed legislative history of the administration's Full Employment Bill. Bailey chronicles the efforts of Truman and his cabinet to pressure Congress into passing the administration's 1945 Bill. He makes clear that the key players in gutting the Bill were all Southern Democrats. Id. at 165-67.
94. See Clawson, supra note 64; The New Deal and the South (James C. Cobb & Michael V. Namorato eds., 1984). Stephen Kemp Bailey, Congress Makes a Law: The Story Behind the Employment Act of 1946 (1946) [hereinafter Bailey, Congress Makes a Law] provides the most detailed legislative history of the administration's Full Employment Bill. Bailey chronicles the efforts of Truman and his cabinet to pressure Congress into passing the administration's 1945 Bill. He makes clear that the key players in gutting the Bill were all Southern Democrats. Id. at 165-67.
95. See Bailey, Congress Makes a Law, supra note 65; Clawson, supra note 64, at 283-332; Karl, supra note 64, at 145-78; Margaret Weir, Politics and Jobs, 132-79 (1992); Ira Katznelson and Bruce Pietrykowski, Rebuilding the American State: Evidence from the 1940s, 5 Stud. in Am. Pol. Dev. 301 (1991); Katznelson, et al., Limiting Liberalism, supra note 60.
96. See Bailey, Congress Makes a Law, supra note 65; Clawson, supra note 64, at 283-332; Karl, supra note 64, at 145-78; Margaret Weir, Politics and Jobs, 132-79 (1992); Ira Katznelson and Bruce Pietrykowski, Rebuilding the American State: Evidence from the 1940s, 5 Stud. in Am. Pol. Dev. 301 (1991); Katznelson, et al., Limiting Liberalism, supra note 60.
97. See Bailey, Congress Makes a Law, supra note 65; Clawson, supra note 64, at 283-332; Karl, supra note 64, at 145-78; Margaret Weir, Politics and Jobs, 132-79 (1992); Ira Katznelson and Bruce Pietrykowski, Rebuilding the American State: Evidence from the 1940s, 5 Stud. in Am. Pol. Dev. 301 (1991); Katznelson, et al., Limiting Liberalism, supra note 60.
98. See Bailey, Congress Makes a Law, supra note 65; Clawson, supra note 64, at 283-332; Karl, supra note 64, at 145-78; Margaret Weir, Politics and Jobs, 132-79 (1992); Ira Katznelson and Bruce Pietrykowski, Rebuilding the American State: Evidence from the 1940s, 5 Stud. in Am. Pol. Dev. 301 (1991); Katznelson, et al., Limiting Liberalism, supra note 60.
99. Full Employment Bill: Hearings Before a Subcommittee on Banking and Currency on S. 380, 79th Cong., 1st Sess., at 2, 4, 10, 59 (1945). See also Phillip Harvey, Securing the Right to Employment: Social Welfare Policy and the Unemployed in the United States (1989).
100. Full Employment Bill: Hearings Before a Subcommittee on Banking and Currency on S. 380, 79th Cong., 1st Sess., at 2, 4, 10, 59 (1945). See also Phillip Harvey, Securing the Right to Employment: Social Welfare Policy and the Unemployed in the United States (1989).
101. See Winifred Bell, Aid To Dependent Children (1963).
102. On the "maternalist" reformers and their conceptions of citizenship rights based on motherhood, see Skocpol, Protecting Soldiers and Mothers, supra note 29; Molly Ladd-Taylor, Mother-Work: Women, Child Welfare, and the State, 1890-1930 (1994); Sonya Michel, Children's Interests/Mothers' Rights: The Shaping of America's Child Care Policy (1999).
103. On the "maternalist" reformers and their conceptions of citizenship rights based on motherhood, see Skocpol, Protecting Soldiers and Mothers, supra note 29; Molly Ladd-Taylor, Mother-Work: Women, Child Welfare, and the State, 1890-1930 (1994); Sonya Michel, Children's Interests/Mothers' Rights: The Shaping of America's Child Care Policy (1999).
104. On the "maternalist" reformers and their conceptions of citizenship rights based on motherhood, see Skocpol, Protecting Soldiers and Mothers, supra note 29; Molly Ladd-Taylor, Mother-Work: Women, Child Welfare, and the State, 1890-1930 (1994); Sonya Michel, Children's Interests/Mothers' Rights: The Shaping of America's Child Care Policy (1999).
105. Bell, supra note 68, at 33-34, 63-65, 76-79, 81-82, 108-09.
106. See id. at 16, 63-65, 82, 107, 139; Michael B. Katz, Improving Poor People: The Welfare State, The "Underclass," and Urban Schools as History 28 (1995).
107. Bell, supra note 68, at 34-35, 42, 55, 79, 83, 130, 138; Katz, supra note 71, at 28.
108. See Katz, supra note 71, at 24-25, 29. See also Bell, supra note 68, at 4, 6, 80, 213 n.7; R. Shep Melnick, Between the Lines: Interpreting Welfare Rights 57, 85-90, 98, 121-22, 130 (1994).
109. Michael Katz, The Undeserving Poor: From the War on Poverty to the War on Welfare 48 (1989). See also Melnick, supra note 73, at 77.
110. Frances Fox Piven & Richard A. Cloward, Regulating the Poor: The Functions of Public Welfare 341 (1971). See also Katz, supra note 74, at 102, 106; Melnick, supra note 73, at 41, 73.
111. Piven & Cloward, supra note 75, at 215. See also Jacqueline Jones, The Dispossessed: America's Underclass from the Civil War to the Present 205-09, 224-32 (1992); Katz, supra note 74, at 84.
112. See Piven & Cloward, supra note 75, at 215. See also Nicholas Lemann, The Promised Land: The Great Black Migration and How it Changed America 16, 70 (1991).
113. Piven & Cloward, supra note 75, at 214-17. See also Jones, supra note 76, at 233-38, 241-44; Katz, supra note 71, at 78-80; William J. Wilson, When Work Disappears 53-54 (1996).
114. Piven & Cloward, supra note 75, at 217-18. See also Bell, supra note 68, at 119, 154; Jones, supra note 76, at 258-61.
115. Piven & Cloward, supra note 75, at 222-46, 250; see also Ktz, supra note 71, at 27; Katz, supra note 74, at 106.
116. See Katz, supra note 74, at 95, 97-101; Lemann, supra note 77, at 133. See also Ira Katznelson, City Trenches: Urban Politics and the Patterning of Class in the United States (1981); Joseph H. Helfgot, Professional Reforming: Mobilization for Youth and the Failure of Social Science (1981).
117. See Katz, supra note 74, at 95, 97-101; Lemann, supra note 77, at 133. See also Ira Katznelson, City Trenches: Urban Politics and the Patterning of Class in the United States (1981); Joseph H. Helfgot, Professional Reforming: Mobilization for Youth and the Failure of Social Science (1981).
118. Bayard Rustin, Address to Democratic National Convention, Atlantic City, N.J. (Aug. 1964), in Bayard Rustin Papers, Reel 3, at 27 (Univ. Pub. of America, Inc. 1988) [hereinafter Rustin Papers].
119. Bayard Rustin, Draft for Testimony on FEP, n.d., in Bayard Rustin Papers, supra note 82, reel 4.
120. Id. at 7.
121. Id. If decently paid unskilled jobs were evaporating, "the need of the nation for skilled workers" was not. And enforcement of anti-discrimination measures might help Negroes gain footholds in the skilled crafts from which unions and employers had excluded them. This was essential. But by themselves such enforcement measures would make black demands for access seem "an attempt to steal white jobs." The civil rights movement would not willingly fall into this trap, when, in fact, public investment for the nation's "unmet needs in housing, education, health and transportation" could provide decent work for all. Bayard Rustin, Lessons of the Long Hot Summer, in Bayard Rustin Papers, supra note 82, reel 13 at 45-46.
122. Martin Luther King, Jr., Where Do We Go From Here: Chaos or Community? 193, 199-200 (1967).
123. Id. at 163, 193. King underscored the class-based character of his "Bill." Any "Negro Bill of Rights" based upon the concept of compensatory treatment as a result of the years of cultural and economic deprivation resulting from racial discrimination . . . must give greater emphasis to the alleviation of economic and cultural backwardness on the part of the so-called "poor white." It is my opinion that many white workers whose economic condition is not too far removed from the economic condition of his black brother, will find it difficult to accept a "Negro Bill of Rights," which seeks to give special consideration to the Negro in the context of unemployment, joblessness, etc. and does not take into sufficient account their plight (that of the white worker). David J. Garrow, Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference 312 (1986) (quoting Dr. Martin Luther King, Jr.).
124. Rustin Papers, supra note 82, at 27.
125. White House Conference Transcript, in Rustin Papers, supra note 82, reel 5 at 23-24.
126. Bayard Rustin, Untitled Article on the Freedom Budget, in Rustin Papers, supra note 82, reel 13 at 1.
127. Id. at 8-9. When Randolph and King enlisted Leon Keyserling to lead a group of AFL-CIO, Department of Labor and academic economists charged with drafting a detailed program, they assured the project's continuities with the New Deal, for Keyserling had been a principal architect of both the Wagner Act and the original 1945 Full Employment Bill. Bayard Rustin, Memo to Gerhart Colm, et al., 12/9/65, in Rustin Papers, supra note 82, reel 12; Profile of Leon Keyserling, Freedom Budget Press Release in Rustin Papers, supra note 82, reel 12. For a detailed account of Keyserling's New Deal activities, see Kenneth M. Casebeer, Holder of the Pen: An Interview with Leon Keyserling on Drafting the Wagner Act, 42 U. Miami L. Rev. 285 (1987).
128. Id. at 8-9. When Randolph and King enlisted Leon Keyserling to lead a group of AFL-CIO, Department of Labor and academic economists charged with drafting a detailed program, they assured the project's continuities with the New Deal, for Keyserling had been a principal architect of both the Wagner Act and the original 1945 Full Employment Bill. Bayard Rustin, Memo to Gerhart Colm, et al., 12/9/65, in Rustin Papers, supra note 82, reel 12; Profile of Leon Keyserling, Freedom Budget Press Release in Rustin Papers, supra note 82, reel 12. For a detailed account of Keyserling's New Deal activities, see Kenneth M. Casebeer, Holder of the Pen: An Interview with Leon Keyserling on Drafting the Wagner Act, 42 U. Miami L. Rev. 285 (1987).
129. Id. at 8-9. When Randolph and King enlisted Leon Keyserling to lead a group of AFL-CIO, Department of Labor and academic economists charged with drafting a detailed program, they assured the project's continuities with the New Deal, for Keyserling had been a principal architect of both the Wagner Act and the original 1945 Full Employment Bill. Bayard Rustin, Memo to Gerhart Colm, et al., 12/9/65, in Rustin Papers, supra note 82, reel 12; Profile of Leon Keyserling, Freedom Budget Press Release in Rustin Papers, supra note 82, reel 12. For a detailed account of Keyserling's New Deal activities, see Kenneth M. Casebeer, Holder of the Pen: An Interview with Leon Keyserling on Drafting the Wagner Act, 42 U. Miami L. Rev. 285 (1987).
130. See Kevin Boyle, The UAW and the Heyday of American Liberalism 1945-68 (1995); Nelson Lichtenstein, The Most Dangerous Man in Detroit: Walter Reuther and the Fate of American Labor (1995).
131. See Kevin Boyle, The UAW and the Heyday of American Liberalism 1945-68 (1995); Nelson Lichtenstein, The Most Dangerous Man in Detroit: Walter Reuther and the Fate of American Labor (1995).
132. Memo, Willard Wirtz to Walter Heller, 11/19/63, Administrative History of the Department of Labor, Vol. III, Documentary Supplement, Sec. III-B, Box 5, LBJ Library. See generally Weir, supra note 66.
133. U.S. Senate, Equal Employment Opportunity, Hearings Before the Subcommittee on Employment and Manpower of the Committee on Labor and Public Welfare, 88th Cong. 1st Sess. 175 (1963) (remarks of Sen. Clark).
134. Id. at 175 (remarks of Whitney Young).
135. Katz, supra note 74, at 80, 86, 88-89, 115-120; Lemann, supra note 77, at 157, 165-70, 202, 206.
136. Lemann, supra note 77, at 259-60. See also Sar A. Levitan, The Great Society's Poor Law: A New Approach to Poverty (1969); Daniel P. Moynihan, Maximum Feasible Misunderstanding: Community Action in the War on Poverty (1969).
137. Lemann, supra note 77, at 259-60. See also Sar A. Levitan, The Great Society's Poor Law: A New Approach to Poverty (1969); Daniel P. Moynihan, Maximum Feasible Misunderstanding: Community Action in the War on Poverty (1969).
138. Pivens & Cloward, supra note 75, at 262; see also Katz, supra note 74, at 83-87, 95, 97-101.
139. Piven & Cloward, supra note 75, at 262 (quoting William F. Haddad).
140. Id. at 266.
141. Id.
142. Id.
143. Id. at 271.
144. Id. at 258, 260.
145. Id. at 290-305.
146. Id. at 290-94. See also Jack Katz, Poor People's Lawyers in Transition 95 (1982).
147. The Commissioner later observed that a top New York City welfare official had not met with a group of recipients since the Depression, when his predecessors negotiated with the Workers' Alliance. Plainly, this Commissioner (and many others around the country) were not unsympathetic, and probably saw in the mobilization of welfare clients a potential boost for their own efforts to enlarge welfare budgets. Piven & Cloward, supra note 75, at 294, 323-26.
148. See Felicia Kornbluh, To Fulfill Their "Rightly Needs": Consumerism and the National Welfare Rights Movement, 69 Radical Hist. Rev. 76 (1997).
149. Piven & Cloward, supra note 75, at 298.
150. Id. at 294.
151. Id. at 324-25; Kornbluh, supra note 108, at 97; Katz, supra note 106, at 84-85. See also Larry R. Jackson & William A. Johnson, Protest by the Poor: The Welfare Rights Movement in New York City (1974); Jacqueline Pope, Organizing Women on Welfare: Planning at the Grass Roots Level (1986).
152. Id. at 324-25; Kornbluh, supra note 108, at 97; Katz, supra note 106, at 84-85. See also Larry R. Jackson & William A. Johnson, Protest by the Poor: The Welfare Rights Movement in New York City (1974); Jacqueline Pope, Organizing Women on Welfare: Planning at the Grass Roots Level (1986).
153. Piven & Cloward, supra note 75, at 330-36.
154. Sit-ins and threatened legal action by the Stanton Street Committee prompted the New York City department to halt these raids. Piven & Cloward, supra note 75, at 324-25. On both these aspects of dignity and welfare provision, see Lucie E. White, Subordination, Rhetorical Survivor and Sunday Shoes: Notes on the Hearings of Mrs. G., 38 Buffalo L. Rev. 1 (1990).
155. See August Meier & Elliott Rudwick, CORE: A Study in the Civil Rights Movement 334-36, 406-07 (1975); Nick Kotz & Mary Lynn Kotz, A Passion for Equality: George Wiley and the Movement (1977).
156. See August Meier & Elliott Rudwick, CORE: A Study in the Civil Rights Movement 334-36, 406-07 (1975); Nick Kotz & Mary Lynn Kotz, A Passion for Equality: George Wiley and the Movement (1977).
157. Piven & Cloward, supra note 75, at 322 n.28. See also Kotz & Kotz, supra note 114.
158. On the "maternalist" reformers and their conceptions of citizenship rights based on motherhood, see Skocpol, Protecting Soldiers and Mothers, supra note 29; Ladd-Taylor, supra note 69; Michel, supra note 69.
159. In addition to Kornbluh, supra note 108, and Kornbluh, infra note 121, see Felicia Kornbluh, The Rise and Fall of Welfare Rights: Women, Poverty, and American Law (forthcoming) [hereinafter Kornbluh, Rise and Fall].
160. See Kornbluh, Rise and Fall, supra note 117, at 6.
161. Id. at 6-7.
162. Kornbluh, supra note 108, at 84-94.
163. Draft Letter from NWRO President Johnnie Tillmon and George Wiley, to Robert Finch, Secretary of HEW, quoted in Felicia Kornbluh, The Goals of the National Welfare Rights Movement: Why We Need Them Thirty Years Later, 24 Feminist Stud. 65, 73 (1998).
164. Kornbluh, supra note 108 at 97. See also Kotz & Kotz, supra note 114, at 16-17.
165. Kornbluh, supra note 121, at 68.
166. See Kornbluh, supra note 108, at 78-79.
167. Kornbluh, supra note 121, at 72 (quoting Juliet Greenlaw, Statement of National Welfare Rights Organization to the Democratic Platform Hearing (Aug. 16, 1968)).
168. Id. at 68 (quoting George Wiley, Testimony for the National Welfare Rights Organization Before the Fiscal Policies Sub-Committee of the Joint Economic Committee of the U.S. Congress (June 12, 1968)).
169. Id. See also Kotz & Kotz, supra note 114, at 277.
170. Kornbluh, supra note 121, at 68-69.
171. See Jacqueline Jones, Labor of Love, Labor of Sorrow: Black Women, Work, and the Family from Slavery to the Present (1985).
172. See Mickey Kaus, The End of Equality 112-14 (1992).
173. Id. at 113.
174. Id. at 114.
175. Id. at 38. See also Ben B. Seligman, Automation and the Work Force in The Guaranteed Income: Next Step in Economic Evolution? 59-80 (Robert Theobald, ed., 1965); Shoshana Zuboff, In the Age of the Smart Machine (1988).
176. Id. at 38. See also Ben B. Seligman, Automation and the Work Force in The Guaranteed Income: Next Step in Economic Evolution? 59-80 (Robert Theobald, ed., 1965); Shoshana Zuboff, In the Age of the Smart Machine (1988).
177. See Kaus, supra note 130, at 115.
178. Richard M. Nixon, Nationwide Radio and Television Address (Aug. 8, 1969), quoted in Daniel P. Moynihan, The Politics of a Guaranteed Income: The Nixon Administration and the Family Assistance Plan 222-23 (1973). Also, the proposed plan scaled benefits "so it would always pay to work," and it included work requirements for everyone but mothers of pre-school children, as well as additional daycare center funding, to encourage them to work as well. Id.
179. Id. at 221.
180. Piven & Cloward, supra note 75, at 306 n.18.
181. Katz, supra note 106, at 65-66.
182. Piven & Cloward, supra note 75, at 315.
183. Katz, supra note 106, at 65-66.
184. Id. at 79-81; see also Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (1993); Martin Garbus, Ready for the Defense (1971); Susan E. Lawrence, The Poor in Court: The Legal Services Program and Supreme Court Decision Making (1990); Edward V. Sparer, The Role of the Welfare Client's Lawyer, 12 UCLA L. Rev. 361 (1965); Edward V. Sparer, The Right to Welfare, in The Rights Of Americans: What They are-What They Should Be (1971) [hereinafter Sparer, The Right to Welfare].
185. Id. at 79-81; see also Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (1993); Martin Garbus, Ready for the Defense (1971); Susan E. Lawrence, The Poor in Court: The Legal Services Program and Supreme Court Decision Making (1990); Edward V. Sparer, The Role of the Welfare Client's Lawyer, 12 UCLA L. Rev. 361 (1965); Edward V. Sparer, The Right to Welfare, in The Rights Of Americans: What They are-What They Should Be (1971) [hereinafter Sparer, The Right to Welfare].
186. Id. at 79-81; see also Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (1993); Martin Garbus, Ready for the Defense (1971); Susan E. Lawrence, The Poor in Court: The Legal Services Program and Supreme Court Decision Making (1990); Edward V. Sparer, The Role of the Welfare Client's Lawyer, 12 UCLA L. Rev. 361 (1965); Edward V. Sparer, The Right to Welfare, in The Rights Of Americans: What They are-What They Should Be (1971) [hereinafter Sparer, The Right to Welfare].
187. Id. at 79-81; see also Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (1993); Martin Garbus, Ready for the Defense (1971); Susan E. Lawrence, The Poor in Court: The Legal Services Program and Supreme Court Decision Making (1990); Edward V. Sparer, The Role of the Welfare Client's Lawyer, 12 UCLA L. Rev. 361 (1965); Edward V. Sparer, The Right to Welfare, in The Rights Of Americans: What They are-What They Should Be (1971) [hereinafter Sparer, The Right to Welfare].
188. Id. at 79-81; see also Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (1993); Martin Garbus, Ready for the Defense (1971); Susan E. Lawrence, The Poor in Court: The Legal Services Program and Supreme Court Decision Making (1990); Edward V. Sparer, The Role of the Welfare Client's Lawyer, 12 UCLA L. Rev. 361 (1965); Edward V. Sparer, The Right to Welfare, in The Rights Of Americans: What They are-What They Should Be (1971) [hereinafter Sparer, The Right to Welfare].
189. See Katz, supra note 106, at 65-66, 68-69, 78, 86, 90, 142-43; Melnick, supra note 73, at 65, 75-80.
190. 397 U.S. 254 (1970).
191. See Davis, supra note 141, at 101-03; Lawrence, supra note 141, at 133-34; Piven & Cloward, supra note 75, at 324.
192. See, e.g., William Simon, Legal Entitlements, Bureaucracy and Class in the Welfare System, 92 Yale L. J. 1198 (1983); William Simon, Rights and Redistribution in the Welfare System, 38 Stan. L. Rev. 1431 (1986); Mark Tushnet, The Critique of Rights, 47 SMU L. Rev. 23 (1993).
193. See, e.g., William Simon, Legal Entitlements, Bureaucracy and Class in the Welfare System, 92 Yale L. J. 1198 (1983); William Simon, Rights and Redistribution in the Welfare System, 38 Stan. L. Rev. 1431 (1986); Mark Tushnet, The Critique of Rights, 47 SMU L. Rev. 23 (1993).
194. See, e.g., William Simon, Legal Entitlements, Bureaucracy and Class in the Welfare System, 92 Yale L. J. 1198 (1983); William Simon, Rights and Redistribution in the Welfare System, 38 Stan. L. Rev. 1431 (1986); Mark Tushnet, The Critique of Rights, 47 SMU L. Rev. 23 (1993).
195. See Felicia Kornbluh, "Legal Civil Disobedience": The National Welfare Rights Movement and Administrative Fair Hearings, (unpublished manuscript on file with author).
196. See id.
197. Sparer, The Right to Welfare, supra note 141, at 65.
198. See id.; Davis, supra note 141, at 34-35; Sparer, The Role of the Welfare Client's Lawyer, supra note 141.
199. See Kornbluh, supra note 146, at 4-5.
200. See id. at 12-13.
201. Ed Sparer, Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement, 36 Stan. L. Rev. 509, 563 (1984). Prior hearings responded in some modest measure to the dignitary aspirations of the movement. See White, supra note 113. For a number of years the cost of providing prior hearings also prompted many welfare departments to accede to various extensions of benefits to entire groups of recipients where previously they would have terminated those benefits. See Piven & Cloward, supra note 75, at 310, 324.
202. Sparer, The Right to Welfare, supra note 141, at 67.
203. Id. at 66-67.
204. See Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1195, 1289 (1982).
205. See, e.g., Hagans v. Lavine, 415 U.S. 528, 534-35 n.5, 537, 541-42 (1974); King v. Smith, 392 U.S. 309, 312 n.3 (1968).
206. See, e.g., Hagans v. Lavine, 415 U.S. 528, 534-35 n.5, 537, 541-42 (1974); King v. Smith, 392 U.S. 309, 312 n.3 (1968).
207. See Melnick, supra note 73, at 50.
208. See Bell, supra note 68; Martha Derthick, The Influence of Federal Grants: Public Assistance in Massachusetts (1970); Wilbur J. Cohen, The Social Security Act of 1935: Reflections Fifty Years Later, in The Report of the Committee On Economic Security of 1935: The 50th Anniversary Edition (1985).
209. See Bell, supra note 68; Martha Derthick, The Influence of Federal Grants: Public Assistance in Massachusetts (1970); Wilbur J. Cohen, The Social Security Act of 1935: Reflections Fifty Years Later, in The Report of the Committee On Economic Security of 1935: The 50th Anniversary Edition (1985).
210. See Davis, supra note 141; Lawrence, supra note 141.
211. 392 U.S. at 309.
212. King v. Smith, 277 F. Supp. 31 (M.D. Ala. 1967).
213. Garbus, supra note 141, at 194-95.
214. Id.
215. King, 392 U.S. at 328-30.
216. Id. at 320, 324-35.
217. Id. at 324-25.
218. The year before, in 1967, Congress had enacted amendments to AFDC that penalized states if they failed to reduce the number of illegitimate children on AFDC. "Senator Robert Kennedy complained that 'the man-in-the-house rule emerges from the conference strengthened rather than weakened' and joined with other liberals in an unsuccessful effort to kill the conference report." Melnick, supra note 73, at 87 (quoting Social Security Amendments of 1967-Conference Report, Congressional Record, Dec. 14, 1967, p. 36785).
219. King, 392 U.S. at 328.
220. Id. at 330.
221. Van Lare v. Hurley, 421 U.S. 338, 340-42 (1975).
222. Melnick, supra note 73, at 88-89. See, e.g., Lewis v. Martin, 397 U.S. 552 (1970).
223. Melnick, supra note 73, at 89.
224. See, e.g., Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977); Maryland v. Mathews, 415 F. Supp. 1206 (D.D.C. 1976); J.A. v. Riti, 377 F. Supp. 1046 (D. N.J. 1974); Owens v. Roberts, 377 F. Supp. 45 (M.D. Fla. 1974); Cooper v. Laupheimer, 316 F. Supp. 264 (E.D. Pa. 1970).
225. See, e.g., Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977); Maryland v. Mathews, 415 F. Supp. 1206 (D.D.C. 1976); J.A. v. Riti, 377 F. Supp. 1046 (D. N.J. 1974); Owens v. Roberts, 377 F. Supp. 45 (M.D. Fla. 1974); Cooper v. Laupheimer, 316 F. Supp. 264 (E.D. Pa. 1970).
226. See, e.g., Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977); Maryland v. Mathews, 415 F. Supp. 1206 (D.D.C. 1976); J.A. v. Riti, 377 F. Supp. 1046 (D. N.J. 1974); Owens v. Roberts, 377 F. Supp. 45 (M.D. Fla. 1974); Cooper v. Laupheimer, 316 F. Supp. 264 (E.D. Pa. 1970).
227. See, e.g., Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977); Maryland v. Mathews, 415 F. Supp. 1206 (D.D.C. 1976); J.A. v. Riti, 377 F. Supp. 1046 (D. N.J. 1974); Owens v. Roberts, 377 F. Supp. 45 (M.D. Fla. 1974); Cooper v. Laupheimer, 316 F. Supp. 264 (E.D. Pa. 1970).
228. See, e.g., Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977); Maryland v. Mathews, 415 F. Supp. 1206 (D.D.C. 1976); J.A. v. Riti, 377 F. Supp. 1046 (D. N.J. 1974); Owens v. Roberts, 377 F. Supp. 45 (M.D. Fla. 1974); Cooper v. Laupheimer, 316 F. Supp. 264 (E.D. Pa. 1970).
229. This was a particularly hard judicial row to hoe, for, as we saw, in 1935 FDR and Congress felt compelled by the Dixiecrats to make such standards a purely local matter. In 1967, however, LBJ recommended that Congress require the states to update their standards of needs each year and to pay 100% of those standards. Congress adopted part of those recommendations, requiring cost-of-living adjustments and demanding that "any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted." 42 U.S.C. § 602(a)(23) (1994). HEW, for its part, read the amendment in a way that conceded that states could nullify the cost-of-living adjustment simply by switching to a "percentage reduction" system, paying only part of each family's needs. See Robert L. Rabin, Implementation of the Cost-of-Living Adjustment for AFDC Recipients: A Case Study in Welfare Administration, 118 U. Pa. L. Rev. 1143, 1150 (1970). The NWRO and LSO went to court, arguing that Congress meant that AFDC recipients must enjoy a real increase in benefits as a result of the mandated adjustments. A three-judge court in New York agreed. Judge Jack Weinstein concluded that HEW's narrow reading of the provision "render[ed] the statute virtually meaningless." Rosado v. Wyman, 304 F. Supp. 1356, 1378 (E.D.N.Y. 1969). "[B]y encouraging states to switch to percentage reduction systems," HEW's interpretation of the amendment "is likely to lead to lower payments." Id. at 1379. The Supreme Court, however, refused to read the amendment's "ambiguous language" to establish a national floor for benefit levels. According to Justice Harlan, the provision had more modest purposes: to "require [the] States to face up realistically to the magnitude of the public assistance requirement," and "to prod the States to apportion their payments on a more equitable basis." Rosado v. Wyman, 397 U.S. 397, 412-13 (1970). The upshot as Judge Weinstein had predicted, was that many states responded to rising AFDC costs by instituting "percentage reduction" systems. Looking back on Rosado, Edward Sparer concluded that the case was "a disaster. It is one thing to force a state to raise its standard of need; it is another to prevent a state from lowering its actual payment level." And this latter goal, Sparer and LSO never attained. See Sparer, The Right to Welfare, supra note 141, at 79.
230. This was a particularly hard judicial row to hoe, for, as we saw, in 1935 FDR and Congress felt compelled by the Dixiecrats to make such standards a purely local matter. In 1967, however, LBJ recommended that Congress require the states to update their standards of needs each year and to pay 100% of those standards. Congress adopted part of those recommendations, requiring cost-of-living adjustments and demanding that "any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted." 42 U.S.C. § 602(a)(23) (1994). HEW, for its part, read the amendment in a way that conceded that states could nullify the cost-of-living adjustment simply by switching to a "percentage reduction" system, paying only part of each family's needs. See Robert L. Rabin, Implementation of the Cost-of-Living Adjustment for AFDC Recipients: A Case Study in Welfare Administration, 118 U. Pa. L. Rev. 1143, 1150 (1970). The NWRO and LSO went to court, arguing that Congress meant that AFDC recipients must enjoy a real increase in benefits as a result of the mandated adjustments. A three-judge court in New York agreed. Judge Jack Weinstein concluded that HEW's narrow reading of the provision "render[ed] the statute virtually meaningless." Rosado v. Wyman, 304 F. Supp. 1356, 1378 (E.D.N.Y. 1969). "[B]y encouraging states to switch to percentage reduction systems," HEW's interpretation of the amendment "is likely to lead to lower payments." Id. at 1379. The Supreme Court, however, refused to read the amendment's "ambiguous language" to establish a national floor for benefit levels. According to Justice Harlan, the provision had more modest purposes: to "require [the] States to face up realistically to the magnitude of the public assistance requirement," and "to prod the States to apportion their payments on a more equitable basis." Rosado v. Wyman, 397 U.S. 397, 412-13 (1970). The upshot as Judge Weinstein had predicted, was that many states responded to rising AFDC costs by instituting "percentage reduction" systems. Looking back on Rosado, Edward Sparer concluded that the case was "a disaster. It is one thing to force a state to raise its standard of need; it is another to prevent a state from lowering its actual payment level." And this latter goal, Sparer and LSO never attained. See Sparer, The Right to Welfare, supra note 141, at 79.
231. This was a particularly hard judicial row to hoe, for, as we saw, in 1935 FDR and Congress felt compelled by the Dixiecrats to make such standards a purely local matter. In 1967, however, LBJ recommended that Congress require the states to update their standards of needs each year and to pay 100% of those standards. Congress adopted part of those recommendations, requiring cost-of-living adjustments and demanding that "any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted." 42 U.S.C. § 602(a)(23) (1994). HEW, for its part, read the amendment in a way that conceded that states could nullify the cost-of-living adjustment simply by switching to a "percentage reduction" system, paying only part of each family's needs. See Robert L. Rabin, Implementation of the Cost-of-Living Adjustment for AFDC Recipients: A Case Study in Welfare Administration, 118 U. Pa. L. Rev. 1143, 1150 (1970). The NWRO and LSO went to court, arguing that Congress meant that AFDC recipients must enjoy a real increase in benefits as a result of the mandated adjustments. A three-judge court in New York agreed. Judge Jack Weinstein concluded that HEW's narrow reading of the provision "render[ed] the statute virtually meaningless." Rosado v. Wyman, 304 F. Supp. 1356, 1378 (E.D.N.Y. 1969). "[B]y encouraging states to switch to percentage reduction systems," HEW's interpretation of the amendment "is likely to lead to lower payments." Id. at 1379. The Supreme Court, however, refused to read the amendment's "ambiguous language" to establish a national floor for benefit levels. According to Justice Harlan, the provision had more modest purposes: to "require [the] States to face up realistically to the magnitude of the public assistance requirement," and "to prod the States to apportion their payments on a more equitable basis." Rosado v. Wyman, 397 U.S. 397, 412-13 (1970). The upshot as Judge Weinstein had predicted, was that many states responded to rising AFDC costs by instituting "percentage reduction" systems. Looking back on Rosado, Edward Sparer concluded that the case was "a disaster. It is one thing to force a state to raise its standard of need; it is another to prevent a state from lowering its actual payment level." And this latter goal, Sparer and LSO never attained. See Sparer, The Right to Welfare, supra note 141, at 79.
232. See generally Lawrence, supra note 141.
233. See Rosado, 397 U.S. at 397, discussed supra at note 174.
234. 394 U.S. 618, 629-31 (1969). On the lower court litigation and rulings against residency requirements, see Frank S. Bloch, Cooperative Federalism and the Role of Litigation in the Development of Federal AFDC Eligibility Policy, 1979 Wise. L. Rev. 1.
235. 394 U.S. 618, 629-31 (1969). On the lower court litigation and rulings against residency requirements, see Frank S. Bloch, Cooperative Federalism and the Role of Litigation in the Development of Federal AFDC Eligibility Policy, 1979 Wise. L. Rev. 1.
236. Shapiro, 394 U.S. at 661 (Black, J. dissenting).
237. Id. at 627.
238. See Bloch, supra note 177; Goldberg v. Kelly, 397 U.S. 254 (1970).
239. 397 U.S. at 262.
240. Id. at 262 n.8 (quoting Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, infra note 183, at 1255).
241. See Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964); Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965) [hereinafter Reich, Individual Rights and Social Welfare].
242. See Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964); Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965) [hereinafter Reich, Individual Rights and Social Welfare].
243. Reich, The New Property, supra note 182, at 733.
244. Id.
245. See id. at 758.
246. Agency discretion wielded "life and death power" over the livelihoods of one and all. See id.
247. See William J. Novak, The People's Welfare: Law and Regulation in Nineteenth Century America (1996).
248. See Reich, The New Property, supra note 183, at 738.
249. See id.
250. Id. at 741.
251. Id. at 786.
252. This point is William Simon's. See Simon, Rights and Redistribution in the Welfare System, supra note 145.
253. Reich, Individual Rights and Social Welfare, supra note 183, at 1255.
254. As we have seen, the Social Security Act recognized no such right; it provided time-limited unemployment insurance and old-age pensions to those who contributed, mothers' pensions and public assistance for the blind and the elderly poor-those who could not presently or could no longer be expected to work, and nothing at all for the idle poor. See supra notes 68-81 and accompanying text.
255. Goldberg v. Kelly, 397 U.S. 254, 265 (1970).
256. Id. at 265.
257. 397 U.S. 471 (1970) (upholding state AFDC regulation setting ceiling on AFDC grant regardless of family size under rational relation standard of equal protection review).
258. Id. at 490.
259. Shapiro v. Thompson, 394 U.S. 618, 638 (1968).
260. The text oversimplifies. Reich, as we saw, did gesture toward a justificatory argument based on exchange: welfare was just compensation for society's more or less conscious choice of a political economy that offered too few decently paid jobs to go around.
261. Michelman, Protecting the Poor, supra note 11, at 7.
262. Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. Pa. L. Rev. 962 (1973) [hereinafter Michelman, In Pursuit of Constitutional Welfare Rights].
263. John Rawls, A Theory Of Justice (1971).
264. See Michelman, Protecting the Poor, supra note 11, at 8-9.
265. Shapiro v. Thompson, 394 U.S. 618 (1968).
266. 383 U.S. 663 (1966) (holding that the state may not condition franchise on payment of tax or fee).
267. 372 U.S. 353 (1963) (holding that the state must provide counsel to criminal accused on first appeal as of right, irrespective of court's assessment of probable merits).
268. See Michelman, Protecting the Poor, supra note 11, at 9.
269. Harper spoke of the "traditional disfavor" with which the Court regarded statutes discriminating on the basis of "wealth, like race," 383 U.S. at 668, Douglas of "that equality demanded by the Fourteenth Amendment where the rich man . . . enjoys the benefit of counsel's [assistance] . . . while the indigent . . . is forced to shift for himself . . . [T]he evil [in such a situation] is . . . discrimination against the indigent." 372 U.S. at 358. "[A]n unconstitutional line has been drawn between rich and poor." Id. at 357. In his Shapiro dissent Justice Harlan lamented the majority's "cryptic suggestion" that welfare constituted a "fundamental interest" giving rise to the strict scrutiny/compelling state interest test the Court's emergent equal protection doctrine had begun to extend from suspect racial classifications to other invidious discriminations and fundamental constitutional interests nowhere evident in the constitutional text. 394 U.S. at 661.
270. Thus, the same year as Michelman's Foreword, see supra note 11, a three-judge district court in New York enjoined a recent change in the state's welfare regulations, which reduced public assistance payments in counties surrounding New York City to levels below those paid to city residents, when previously they had been grouped together. Rothstein v. Wyman 303 F. Supp. 339 (S.D.N.Y. 1969). Applying strict scrutiny to the new classifying scheme, the district court wrote, "[r]eceipt of welfare benefits may not at the present time constitute the exercise of a constitutional right"; nonetheless, the court deemed controlling the teaching Harper and Shapiro, that classifications creating "inequalities affecting the exercise of fundamental or critical personal rights" must be scrutinized under "a more stringent standard." Id. at 346. As in Harper and Shapiro, so here the court found a conjunction of a "fundamental right" and a "disadvantaged minority": only here the right was welfare and the minority, the poor. While welfare was only an incipient constitutional right, an emergent fundamental interest, Shapiro still seemed to mark the Court's acknowledgment that "[a]ccess to [the] bare necessities of life" was as "fundamental" as voting. Id. at 346-48. And Douglas marked a dawning recognition of the poor as a protected minority. Id.
271. See John E. Coons et al., Educational Opportunity: A Workable Constitutional Test for State Financial Structures, 57 Cal. L. Rev. 305, 365 (1969). See generally Arthur J. Goldberg, Equality and Governmental Action, 39 N.Y.U. L. Rev. 205 (1964); Lawrence Gene Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent, 21 Stan. L. Rev. 767 (1969).
272. See John E. Coons et al., Educational Opportunity: A Workable Constitutional Test for State Financial Structures, 57 Cal. L. Rev. 305, 365 (1969). See generally Arthur J. Goldberg, Equality and Governmental Action, 39 N.Y.U. L. Rev. 205 (1964); Lawrence Gene Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent, 21 Stan. L. Rev. 767 (1969).
273. See John E. Coons et al., Educational Opportunity: A Workable Constitutional Test for State Financial Structures, 57 Cal. L. Rev. 305, 365 (1969). See generally Arthur J. Goldberg, Equality and Governmental Action, 39 N.Y.U. L. Rev. 205 (1964); Lawrence Gene Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent, 21 Stan. L. Rev. 767 (1969).
274. See Michelman, Protecting the Poor, supra note 11, at 16.
275. Id.
276. Id. at 10.
277. Id. at 18.
278. Id.
279. Id. at 11.
280. Id.
281. Id. at 13-14.
282. Id. at 33.
283. Id.
284. 397 U.S. 471 (1970) (upholding state AFDC regulation setting ceiling on AFDC grant regardless of family size under rational relation standard of equal protection review).
285. Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (holding indigent felony defendants entitled to state-funded trial counsel under the Sixth Amendment).
286. 287 U.S. 45 (1932) (holding an indigent defendant in capital case entitled to state-financed counsel under the Sixth Amendment).
287. Douglas v. California, 372 U.S. 353, 357 (1963) (holding that the state must provide counsel to criminal accused on first appeal as of right, irrespective of court's assessment of probable merits).
288. Michelman, Protecting the Poor, supra note 11, at 7 n.*.
289. See id.
290. See generally Marion Wright Edelman, Lanterns: A Memoir of Mentors (1999). Edelman was a director of the Harvard Center on Law and Education.
291. Michelman welcomes the challenge-to answer the "compelling . . . objection to welfare rights, that such rights signify redistribution from the prudent and industrious to those who have culpably failed to grasp opportunities to provide for their own security." Michelman, In Pursuit of Constitutional Welfare Rights, supra note 203, at 969.
292. Michelman, Protecting the Poor, supra note 11, at 14.
293. Id. at 15 n.21.
294. One might think that such social citizenship principles as a right to work are absent from Michelman's constitutional theorizing, because they lie beyond anything courts could hope to contribute to the anti-poverty campaign. But it seems fair to say that for the Michelman of these two essays, "minimum protection" constitutes the full reach of the Constitution's-and not merely the constitutional courts'-"protection of the poor." No Constitution seen from the vantage point of civil society or of Congress would contain any different rights or equality norms. As we'll see, infra note 267, Michelman does address constitutional advocacy in political fora, and he casts the social minimum for constituting equal citizenship in the same mold.
295. Michelman, In Pursuit of Constitutional Welfare Rights, supra note 203, at 1002-03.
296. See Rawls, supra note 204.
297. Michelman, In Pursuit of Constitutional Welfare Rights, supra note 203, at 962.
298. See Rawls, supra note 204, at 100-01. See also John Rawls, Political Liberalism 283 (1996) (Michelman explicates and criticizes the difference principle in In Pursuit of Constitutional Welfare Rights, supra note 203, at 976-88.)
299. See Rawls, supra note 204, at 100-01. See also John Rawls, Political Liberalism 283 (1996) (Michelman explicates and criticizes the difference principle in In Pursuit of Constitutional Welfare Rights, supra note 203, at 976-88.)
300. See Rawls, supra note 204, at 7-11, 54.
301. Michelman, In Pursuit of Constitutional Welfare Rights, supra note 203, at 982.
302. "A precept for the distribution of material social goods," writes Michelman, "which ignores claims regarding basic needs as such, and is sensitive only to claims regarding money income, will for many of us seem incomplete and thus not fully in harmony with our 'considered judgments.'" Id.
303. Michelman states: Income-transfer activity is simply to be intensified just up to the point where any further intensification lowers total output so much that the bottom's absolute income begins to fall even as its relative share of total consumer satisfaction continues to rise. Under the difference principle, that is all there is to it. There can be no implicit insurance-rights package because there is no concern for what the bottom spends (or is able to spend) its income on. Income is income-a primary, an elemental, social good, of which the bottom simply wants and is entitled to as much as it can get. Id. at 981.
304. Id. at 983.
305. After all, fair equality of opportunity implies a right to education, and that right entails "subsistence or health or freedom from extreme environmental deprivation," for without them, "how could educational offerings effectuate fair equality of opportunity?" Id. at 989. So too, the "[e]njoyment of basic liberties" like freedom of speech has "fairly straightforward and objective biological entailments," which spell subsistence and the other insurance rights. Id. Finally, the "preeminent good of self-respect may imply welfare rights reaching beyond those biological entailments," although Michelman does not explore how. Id. at 990.
306. Michelman may have been the first sympathetic critic of Rawls to suggest that the difference principle and the income guarantee it entailed were not the only nor the most compelling principle that could be derived from Rawls' original position. A just wants principle might fit the bill better. For a thoughtful and nuanced later reading, making the case for a just wants approach, see Jeremy Waldron, Liberal Rights 225-49 (1993).
307. Rawls, supra note 204, at 176 ("[W]hen we enter an agreement we must be able to honor it even should the worst possibilities prove to be the case . . . . Thus the parties must weigh with care whether they will be able to stick by their commitment in all circumstances.")
308. Id. at 145, 176, 423. I am indebted to Waldron's discussion of this theme in Rawls. See Waldron, supra note 244, at 259-67.
309. Waldron, supra note 244, at 290.
310. John Rawls, Collected Papers 419 (1999).
311. Id.
312. Id.
313. See, e.g., Wilson, supra note 78; Arthur H. Goldsmith et al., The Psychological Impact of Unemployment and Joblessness, 25 J. Soc.-Econ. 333 (1996); Amartya Sen, The Penalties of Unemployment (Banca D'Italia, Working Paper No. 307, 1997).
314. See, e.g., Wilson, supra note 78; Arthur H. Goldsmith et al., The Psychological Impact of Unemployment and Joblessness, 25 J. Soc.-Econ. 333 (1996); Amartya Sen, The Penalties of Unemployment (Banca D'Italia, Working Paper No. 307, 1997).
315. Of course, complex patterns of respect, deference, and degradation form around class and occupational hierarchies, but all the empirical literature suggests that the most salient border between minimum respect and degradation in today's class structure falls along the line between those who are recognized by organized society as working and providing a decent living for themselves and their families, and those men and women at the bottom of the nation's class hierarchy who are not. See, e.g., Joel F. Handler & Yeheskel Hasenfeld, We, the Poor People: Work, Poverty, and Welfare (1997); Catherine S. Newman, No Shame in My Game: The Working Poor in the Inner City (1999). On the experience of women in regard to the identities of housewife and "[waged] working woman" and the dilemmas of self-respect and social recognition as a full and equal member of American society, see Vicki Schultz, Life's Work, 100 Colum. L. Rev. 1881 (2000) (arguing that for women no less than men, the right to participate in decent work is indispensable to equal citizenship; canvassing empirical literature showing that "a robust conception of equality [for women] can be best achieved through paid work, rather than despite it." Id. at 1883).
316. Of course, complex patterns of respect, deference, and degradation form around class and occupational hierarchies, but all the empirical literature suggests that the most salient border between minimum respect and degradation in today's class structure falls along the line between those who are recognized by organized society as working and providing a decent living for themselves and their families, and those men and women at the bottom of the nation's class hierarchy who are not. See, e.g., Joel F. Handler & Yeheskel Hasenfeld, We, the Poor People: Work, Poverty, and Welfare (1997); Catherine S. Newman, No Shame in My Game: The Working Poor in the Inner City (1999). On the experience of women in regard to the identities of housewife and "[waged] working woman" and the dilemmas of self-respect and social recognition as a full and equal member of American society, see Vicki Schultz, Life's Work, 100 Colum. L. Rev. 1881 (2000) (arguing that for women no less than men, the right to participate in decent work is indispensable to equal citizenship; canvassing empirical literature showing that "a robust conception of equality [for women] can be best achieved through paid work, rather than despite it." Id. at 1883).
317. Of course, complex patterns of respect, deference, and degradation form around class and occupational hierarchies, but all the empirical literature suggests that the most salient border between minimum respect and degradation in today's class structure falls along the line between those who are recognized by organized society as working and providing a decent living for themselves and their families, and those men and women at the bottom of the nation's class hierarchy who are not. See, e.g., Joel F. Handler & Yeheskel Hasenfeld, We, the Poor People: Work, Poverty, and Welfare (1997); Catherine S. Newman, No Shame in My Game: The Working Poor in the Inner City (1999). On the experience of women in regard to the identities of housewife and "[waged] working woman" and the dilemmas of self-respect and social recognition as a full and equal member of American society, see Vicki Schultz, Life's Work, 100 Colum. L. Rev. 1881 (2000) (arguing that for women no less than men, the right to participate in decent work is indispensable to equal citizenship; canvassing empirical literature showing that "a robust conception of equality [for women] can be best achieved through paid work, rather than despite it." Id. at 1883).
318. Michael Sandel, Democracy's Discontent 6 (1996). See also Michael Sandel, Liberalism and the Limits of Justice (1982). Cf. Rawls, supra note 204, at 259 (Not only their capacity for self-respect but more broadly "the sort of persons [citizens] want to be as well as the sort of persons they are" are shaped by the political economy they live under.).
319. Michael Sandel, Democracy's Discontent 6 (1996). See also Michael Sandel, Liberalism and the Limits of Justice (1982). Cf. Rawls, supra note 204, at 259 (Not only their capacity for self-respect but more broadly "the sort of persons [citizens] want to be as well as the sort of persons they are" are shaped by the political economy they live under.).
320. Michelman, In Pursuit of Constitutional Welfare Rights, supra note 203, at 966.
321. Id. at 967.
322. See id. at 1004-10.
323. Id.
324. Id. at 1006.
325. Id.
326. Id.
327. Id. Indeed, the plausibility of such an "action-forcing" remedial approach to a proposed right to decent work has recently been defended. See Mark Tushnet, What is Constitutional about Progressive Constitutionalism?, 4 Widener L. Symp. J. 19, 31 (1999) ("Although judicial enforcement would not guarantee that everyone has a decent job, enforcement [of an order that the legislature offers plans for relief] could guarantee that legislatures make jobs policy a high or higher priority.").
328. Id. at 1010.
329. Id.
330. See id. at 1011-12.
331. Id. at 1011.
332. For a like-minded account of possible readings of the Wagner Act, see Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol and Workplace Co-operation, 106 Harv. L. Rev. 1379 (1993).
333. Michelman, In Pursuit of Constitutional Welfare Rights, supra note 203, at 1002-03.
334. In fairness, we should note that Michelman's point of comparison lay between insurance rights and Rawls' difference principle. Rawls would point out that the principle is intended to apply across a range of laws and institutions, much like Equal Protection. It would figure in what Michelman now nicely refers to as "the [democratic] practice by which we test, exchange, revise. . .the constitutional-interpretive judgments [that decide] . . . from time to time, the 'institutional settlements' we need." See Frank I. Michelman, Democracy-Based Resistance to a Constitutional Right of Social Citizenship: A Comment on Forbath, 69 Fordham L. Rev. 1893 (2001). Over time, this practice gives normative and narrative content and push to the most general equality norms.
335. Id. at 1896.
336. Id.
337. Id. at 1895-96.
338. Id. at 1895.
339. Id. at 1897.
340. Id. at 1898.
341. See DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 196 (1989).
342. See Sager, supra note 15, at 419.
343. See, e.g., Frank Michelman & Margaret Jane Radin, Symposium Commentary: Pragmatist and Poststructuralist Critical Legal Practice, 139 U. Pa. L. Rev. 1019 (1991); Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 Fla. L. Rev. 443 (1989); Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988); Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 Iowa L. Rev. 1319 (1987); Frank I. Michelman, The Supreme Court 1985 Term-Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986) [hereinafter Michelman, Traces of Self-Government].
344. See, e.g., Frank Michelman & Margaret Jane Radin, Symposium Commentary: Pragmatist and Poststructuralist Critical Legal Practice, 139 U. Pa. L. Rev. 1019 (1991); Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 Fla. L. Rev. 443 (1989); Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988); Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 Iowa L. Rev. 1319 (1987); Frank I. Michelman, The Supreme Court 1985 Term-Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986) [hereinafter Michelman, Traces of Self-Government].
345. See, e.g., Frank Michelman & Margaret Jane Radin, Symposium Commentary: Pragmatist and Poststructuralist Critical Legal Practice, 139 U. Pa. L. Rev. 1019 (1991); Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 Fla. L. Rev. 443 (1989); Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988); Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 Iowa L. Rev. 1319 (1987); Frank I. Michelman, The Supreme Court 1985 Term-Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986) [hereinafter Michelman, Traces of Self-Government].
346. See, e.g., Frank Michelman & Margaret Jane Radin, Symposium Commentary: Pragmatist and Poststructuralist Critical Legal Practice, 139 U. Pa. L. Rev. 1019 (1991); Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 Fla. L. Rev. 443 (1989); Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988); Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 Iowa L. Rev. 1319 (1987); Frank I. Michelman, The Supreme Court 1985 Term-Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986) [hereinafter Michelman, Traces of Self-Government].
347. See, e.g., Frank Michelman & Margaret Jane Radin, Symposium Commentary: Pragmatist and Poststructuralist Critical Legal Practice, 139 U. Pa. L. Rev. 1019 (1991); Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 Fla. L. Rev. 443 (1989); Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988); Frank I. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, 72 Iowa L. Rev. 1319 (1987); Frank I. Michelman, The Supreme Court 1985 Term-Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986) [hereinafter Michelman, Traces of Self-Government].
348. See Michelman, Possession vs. Distribution in the Constitutional Idea of Property, supra note 277 . The essay by Michael Walzer which Michelman addresses is Michael Walzer, Philosophy and Democracy, 9 Pol. Theory 379 (1981).
349. See Michelman, Possession vs. Distribution in the Constitutional Idea of Property, supra note 277 . The essay by Michael Walzer which Michelman addresses is Michael Walzer, Philosophy and Democracy, 9 Pol. Theory 379 (1981).
350. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, supra note 277, at 1329.
351. Id. at 1332.
352. Id. at 1335.
353. Id.
354. Id. at 1336.
355. See id. at 1337.
356. Id. at 1321 (emphasis in original).
357. Id. (quoting David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 889 (1986)).
358. Id.
359. See supra note 32 and accompanying text.
360. See supra note 46 and accompanying text (quoting FDR). Nor were they unmindful of the problem Michelman identifies of mediating between distributive and possessive property claims. See Michelman, Possession vs. Distribution in the Constitutional Idea of Property, supra note 277, at 1321 . Progressive reformers like Brandeis and Commons devoted vast attention to reconciling the various possessive property claims of employers with such social rights as minimum livelihoods and unemployment insurance and with the claims of employees, as of right, to a voice in the governance of the enterprise. It is true, though, that their efforts at reconciliation, while principled, did not take the form of "strongly objective standards" but were rather more contextual and pragmatic. See, e.g., John R. Commons, Legal Foundations of Capitalism (1924).
361. See supra note 46 and accompanying text (quoting FDR). Nor were they unmindful of the problem Michelman identifies of mediating between distributive and possessive property claims. See Michelman, Possession vs. Distribution in the Constitutional Idea of Property, supra note 277, at 1321 . Progressive reformers like Brandeis and Commons devoted vast attention to reconciling the various possessive property claims of employers with such social rights as minimum livelihoods and unemployment insurance and with the claims of employees, as of right, to a voice in the governance of the enterprise. It is true, though, that their efforts at reconciliation, while principled, did not take the form of "strongly objective standards" but were rather more contextual and pragmatic. See, e.g., John R. Commons, Legal Foundations of Capitalism (1924).
362. Compare Michelman, Traces of Self-Government, supra note 277, with Michelman & Radin, supra note 277.
363. Michelman, Possession vs. Distribution in the Constitutional Idea of Property, supra note 277, at 1324.
364. See William E. Forbath, Ambiguities of Free Labor: Law and Labor in the Gilded Age, 1985 Wis. L. Rev. 767 (tracing this theme in republican discourse of political and legal elites and labor reformers in U.S. from 1780s to 1880s); Forbath, supra note 22, at 13-15, 18-19, 26-51 (same, adding inflections of theme in women's, African-American, and agrarian movements, and carrying forward into 1890s-1930s).
365. Regarding Locke, see, e.g., John Locke, I Two Treatises of Government 42 (Peter Laslett ed. 1960) (poor man has a right to "Title to so much out of Another's Plenty as will keep him from extreme want"); Thomas A. Home, Property Rights and Poverty 48-65 (1990); Richard Ashcraft, Liberalism and the Problem of Poverty, 6 Crit. Rev. 493 (1993) (Locke and classical liberalism emphasize natural right to subsistence). Regarding Smith, see, e.g., Adam Smith, II An Inquiry into the Nature and Causes of the Wealth of Nations 80 (London: Methuen & Co. 1950) (1776) ("No society can be flourishing . . . of which [any substantial number of members] are poor and miserable."); Gertrude Himmelfarb, The Idea of Poverty 46 (1983) (arguing that Smith makes improving the condition of society's poorest members a key criterion for judging economic systems): Istvan Hont & Michael Ignatieff, Needs and Justice in the Wealth of Nations: An Introductory Essay, in Wealth and Virtue, the Shaping of Political Economy in the Scottish Enlightenment 1-44 (Hont & Ignatieff eds. 1983) (meeting needs of poor as Smith's theoretical axis for assessing political-economic arrangements).
366. Regarding Locke, see, e.g., John Locke, I Two Treatises of Government 42 (Peter Laslett ed. 1960) (poor man has a right to "Title to so much out of Another's Plenty as will keep him from extreme want"); Thomas A. Home, Property Rights and Poverty 48-65 (1990); Richard Ashcraft, Liberalism and the Problem of Poverty, 6 Crit. Rev. 493 (1993) (Locke and classical liberalism emphasize natural right to subsistence). Regarding Smith, see, e.g., Adam Smith, II An Inquiry into the Nature and Causes of the Wealth of Nations 80 (London: Methuen & Co. 1950) (1776) ("No society can be flourishing . . . of which [any substantial number of members] are poor and miserable."); Gertrude Himmelfarb, The Idea of Poverty 46 (1983) (arguing that Smith makes improving the condition of society's poorest members a key criterion for judging economic systems): Istvan Hont & Michael Ignatieff, Needs and Justice in the Wealth of Nations: An Introductory Essay, in Wealth and Virtue, the Shaping of Political Economy in the Scottish Enlightenment 1-44 (Hont & Ignatieff eds. 1983) (meeting needs of poor as Smith's theoretical axis for assessing political-economic arrangements).
367. Regarding Locke, see, e.g., John Locke, I Two Treatises of Government 42 (Peter Laslett ed. 1960) (poor man has a right to "Title to so much out of Another's Plenty as will keep him from extreme want"); Thomas A. Home, Property Rights and Poverty 48-65 (1990); Richard Ashcraft, Liberalism and the Problem of Poverty, 6 Crit. Rev. 493 (1993) (Locke and classical liberalism emphasize natural right to subsistence). Regarding Smith, see, e.g., Adam Smith, II An Inquiry into the Nature and Causes of the Wealth of Nations 80 (London: Methuen & Co. 1950) (1776) ("No society can be flourishing . . . of which [any substantial number of members] are poor and miserable."); Gertrude Himmelfarb, The Idea of Poverty 46 (1983) (arguing that Smith makes improving the condition of society's poorest members a key criterion for judging economic systems): Istvan Hont & Michael Ignatieff, Needs and Justice in the Wealth of Nations: An Introductory Essay, in Wealth and Virtue, the Shaping of Political Economy in the Scottish Enlightenment 1-44 (Hont & Ignatieff eds. 1983) (meeting needs of poor as Smith's theoretical axis for assessing political-economic arrangements).
368. Regarding Locke, see, e.g., John Locke, I Two Treatises of Government 42 (Peter Laslett ed. 1960) (poor man has a right to "Title to so much out of Another's Plenty as will keep him from extreme want"); Thomas A. Home, Property Rights and Poverty 48-65 (1990); Richard Ashcraft, Liberalism and the Problem of Poverty, 6 Crit. Rev. 493 (1993) (Locke and classical liberalism emphasize natural right to subsistence). Regarding Smith, see, e.g., Adam Smith, II An Inquiry into the Nature and Causes of the Wealth of Nations 80 (London: Methuen & Co. 1950) (1776) ("No society can be flourishing . . . of which [any substantial number of members] are poor and miserable."); Gertrude Himmelfarb, The Idea of Poverty 46 (1983) (arguing that Smith makes improving the condition of society's poorest members a key criterion for judging economic systems): Istvan Hont & Michael Ignatieff, Needs and Justice in the Wealth of Nations: An Introductory Essay, in Wealth and Virtue, the Shaping of Political Economy in the Scottish Enlightenment 1-44 (Hont & Ignatieff eds. 1983) (meeting needs of poor as Smith's theoretical axis for assessing political-economic arrangements).
369. Regarding Locke, see, e.g., John Locke, I Two Treatises of Government 42 (Peter Laslett ed. 1960) (poor man has a right to "Title to so much out of Another's Plenty as will keep him from extreme want"); Thomas A. Home, Property Rights and Poverty 48-65 (1990); Richard Ashcraft, Liberalism and the Problem of Poverty, 6 Crit. Rev. 493 (1993) (Locke and classical liberalism emphasize natural right to subsistence). Regarding Smith, see, e.g., Adam Smith, II An Inquiry into the Nature and Causes of the Wealth of Nations 80 (London: Methuen & Co. 1950) (1776) ("No society can be flourishing . . . of which [any substantial number of members] are poor and miserable."); Gertrude Himmelfarb, The Idea of Poverty 46 (1983) (arguing that Smith makes improving the condition of society's poorest members a key criterion for judging economic systems): Istvan Hont & Michael Ignatieff, Needs and Justice in the Wealth of Nations: An Introductory Essay, in Wealth and Virtue, the Shaping of Political Economy in the Scottish Enlightenment 1-44 (Hont & Ignatieff eds. 1983) (meeting needs of poor as Smith's theoretical axis for assessing political-economic arrangements).
370. Regarding Locke, see, e.g., John Locke, I Two Treatises of Government 42 (Peter Laslett ed. 1960) (poor man has a right to "Title to so much out of Another's Plenty as will keep him from extreme want"); Thomas A. Home, Property Rights and Poverty 48-65 (1990); Richard Ashcraft, Liberalism and the Problem of Poverty, 6 Crit. Rev. 493 (1993) (Locke and classical liberalism emphasize natural right to subsistence). Regarding Smith, see, e.g., Adam Smith, II An Inquiry into the Nature and Causes of the Wealth of Nations 80 (London: Methuen & Co. 1950) (1776) ("No society can be flourishing . . . of which [any substantial number of members] are poor and miserable."); Gertrude Himmelfarb, The Idea of Poverty 46 (1983) (arguing that Smith makes improving the condition of society's poorest members a key criterion for judging economic systems): Istvan Hont & Michael Ignatieff, Needs and Justice in the Wealth of Nations: An Introductory Essay, in Wealth and Virtue, the Shaping of Political Economy in the Scottish Enlightenment 1-44 (Hont & Ignatieff eds. 1983) (meeting needs of poor as Smith's theoretical axis for assessing political-economic arrangements).
371. For a Madison or Jefferson, poor relief left paupers still "dependent" and, therefore, unqualified for citizenship. They favored ample material opportunities (they even occasionally championed rights to property in "full and absolute dominion") for all white men willing and able to exploit them, and charity or coercion for the rest. See Forbath, supra note 22, at 13-14 (discussing and quoting from the Madison and Jefferson texts relied on by Michelman and other constitutional welfare rights defenders like Sunstein).
372. See Frank I. Michelman, Morality, Identity and "Constitutional Patriotism" 76 Denv. U. L. Rev. 1009 (1999).
373. See Michelman, supra note 11, at 15-16 n.21.
374. I am borrowing here the general form of an argument he makes against Charles Fried, in Welfare Rights in a Constitutional Democracy, 1979 Wash. L. Q. 659, 682-84.
375. See generally Jurgen Habermas, Between Facts and Norms (1998).
376. Bruce Ackerman and Anne Alstott's thinking runs in this direction. See Bruce Ackerman & Anne Alstott, The Stakeholder Society 11 (1999). Ackerman and Alstott champion giving all citizens a sum of money to invest, rather than assuring them decent jobs. Alstott has provided a sustained basic-income based liberal critique of efforts to secure social citizenship through reforms of the low-wage labor markets, job creation and the like. See Anne L. Alstott, Work vs. Freedom: A Liberal Challenge to Employment Subsidies, 108 Yale L.J. 967, 971 (1999)("The case for employment subsidies rests on mistaken or morally dubious claims about the intrinsic or instrumental value of paid work.").
377. Bruce Ackerman and Anne Alstott's thinking runs in this direction. See Bruce Ackerman & Anne Alstott, The Stakeholder Society 11 (1999). Ackerman and Alstott champion giving all citizens a sum of money to invest, rather than assuring them decent jobs. Alstott has provided a sustained basic-income based liberal critique of efforts to secure social citizenship through reforms of the low-wage labor markets, job creation and the like. See Anne L. Alstott, Work vs. Freedom: A Liberal Challenge to Employment Subsidies, 108 Yale L.J. 967, 971 (1999)("The case for employment subsidies rests on mistaken or morally dubious claims about the intrinsic or instrumental value of paid work.").
378. See id.; see also Guy Standing, The Need for a New Social Consensus, in Arguing for Basic Income 47-60 (Phillipe Van Parijs ed. 1992).
379. See Alstott, supra note 299; Phillipe Van Parijs, Basic Income Capitalism, 102 Ethics 465 (1992); Phillipe Van Parijs, Why Surfers Should be Fed: The Liberal Case for an Unconditional Basic Income, 20 Phil. & Pub. Affairs 101 (1991).
380. See Alstott, supra note 299; Phillipe Van Parijs, Basic Income Capitalism, 102 Ethics 465 (1992); Phillipe Van Parijs, Why Surfers Should be Fed: The Liberal Case for an Unconditional Basic Income, 20 Phil. & Pub. Affairs 101 (1991).
381. See, e.g., Carole Pateman, The Patriarchal Welfare State, in Democracy and the Welfare State 231, 238 (Amy Gutmann ed. 1988).
382. See, e.g., Bill Jordan, Basic Income and the Common Good, in Arguing for Basic Income 155-77 (Phillippe Van Parijs ed. 1992).
383. While Michelman has not returned to the question of equal citizenship's material bases since the 1980s, he plainly does not disagree. No one is harder at work today on behalf of the proposition that "'liberal democratic constitutionalism' must be a name for a social form of life as well as for a set of procedures for political decisionmaking." The constitutionalism Michelman has begun to expound is one whose Bill of Rights is also "a bill of entitlements" and one that apparently reaches the "laws [that shape our] . . . work and workplaces" as well as "schools, housing, property, speech, the media, and so on." Frank I. Michelman, Progressive-Liberal Democratic Constitutionalism, 4 Widener L. Symp. J. 181, 194-95 (1999).