In a nineteenth-century commerce clause case, the Supreme Court characterized "paupers" and "vagabonds" as a "moral pestilence" against which the state could protect itself in the exercise of its police powers. Although we can still hear echoes of these sentiments in laws and practices segregating the poor and the institutions that serve them, the Supreme Court has now made clear that bare hostility to, or suspicion of, the poor is not a constitutionally permissible basis for state action.
The decisive break came in the 1941 decision in edwards v. california, where the Court struck down as a violation of the dormant commerce clause a state law making it a crime knowingly to aid an indigent in coming into the state. The Court said in Edwards that "it will not now be seriously contended that because a person is without employment and without funds he constitutes a 'moral pestilence.' Poverty and immorality are not synonymous." In a much cited concurrence, Justice robert jackson went further, insisting that "indigence' in itself is neither a source of rights nor a basis for denying them. The mere state of being without funds is a neutral fact—constitutionally an irrelevance, like race, creed, or color."
sinceEdwards, indigence as such cannot be the basis for the imposition of governmental burdens. For indigence, as for race, however, the ideal of constitutional irrelevance has proved elusive. In dealing with issues of poverty since Edwards, the Court has found itself repeatedly confronting questions of what it might mean for the state to treat something as irrelevant that matters terribly in the society of which the state is a part. It is now settled that both state and federal legislatures can take action to alleviate poverty and its effects. The difficult problems that remain revolve around whether, and when, the Constitution may require relief for the poor from some of the burdens of indigence.
Constitutional solicitude for the poor emerged first in the context of criminal procedure, with the Supreme Court holding that indigent criminal defendants were entitled to state-appointed counsel, to trial transcripts on appeal, and, more recently, to limited forms of other important assistance in resisting prosecution. The first right to counsel holding came in 1932, and the Court gradually developed a constitutional law of procedural rights for indigent criminal defendants in federal and then in state courts. These rights for the indigent accused developed without any overt prod from external influences. Expansion of the rights of the poor beyond the criminal procedure context had to await the development of larger social movements.
By the mid-1960s, problems of poverty were commanding political attention. Congress responded to President lyndon b. johnson's call for a "war on poverty" with a variety of new programs designed to deal with the symptoms and the causes of poverty in America. One of the early poverty programs was federal subsidization of civil legal aid for the poor. Charitable legal aid programs had a long history in the United States, but the new federal subsidy helped channel the reformist zeal of large numbers of new lawyers acting on behalf of poor people. Their activities left a mark on many areas of the law, including much of constitutional law beyond the criminal procedure beginnings.
For a time it even appeared that litigation on behalf of welfare recipients might yield a constitutional right to subsistence support. In 1969 the Supreme Court held in shapiro v. thompson that states could not impose durational residence requirements for the receipt of public assistance. The decision was based on the equal protection clause; the residence requirements impinged on the right to travel interstate, a right the Court characterized as "fundamental" and hence enjoying heightened constitutional protection. But the Court also suggested that the fact that welfare benefits were at issue was important to its decision. In the Court's words, the case involved "the very means to subsist—food, shelter, and other necessities of life." And the next year, the Court held in goldberg v. kelly (1970) that a welfare recipient had a right to an administrative hearing before her welfare benefits could be withdrawn. Again the Court emphasized the nature of the benefits at stake—"the means to obtain essential food, clothing, housing, and medical care." This and other language helped stimulate a secondary literature advocating a constitutional right to what Frank Michelman called "minimum protection" of each individual's "just wants."
No such right ever gained much of a foothold in the courts, however, for reasons that came into focus early. In dandridge v. williams (1970), decided just one year after Shapiro, the Court rejected a claim that a family maximum on the size of the welfare grant deprived members of large welfare families of equal protection. The claim was plausible enough after Shapiro, but the prospect of continued expansion of the eligible population by virtue of equal protection decisions gave the Court pause, for it suggested that the legislative reaction might simply be to divide the same total public assistance resources among a larger eligible population. The Court's response to this tradeoff of equity and adequacy in welfare programs was to back off, saying in Dandridge that "conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social and even philosophical problems presented by public welfare programs are not the business of this Court.… The Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." The Court did not abandon equal protection review of discrimination within welfare programs after Dandridge, but that review became much more subdued than the rhetoric of Shapiro had suggested.
The problem to which the Court referred in Dandridge is real enough in the equal protection context, where the claimant typically seeks to have a group to which he belongs made eligible for assistance according to standards of need the state has already defined. Indeed, each time the Court extends eligibility, it causes a realignment of political forces that might force legislative tradeoffs with nonwelfare programs such as defense, foreign aid, and the fight against pollution. In such a case, however, the legislature does retain the option to eliminate or scale back the amount of the welfare benefits. A claim for minimum subsistence, on the other hand, would require of the Court decisions not only about those entitled to the assistance but also about the appropriate level of assistance—what, in Michelman's terms, are "just wants" and how much is "minimum protection." The Court would be requiring the expenditure of funds absolutely rather than conditionally, thus necessitating, rather than just giving a nudge to, legislative tradeoffs between welfare programs and others competing for public support. The prospect would be daunting, and the Court never did more than flirt lightly with it.
The welfare cases did somewhat alleviate recurrent confusion in constitutional law with regard to the right / privilege distinction. Prior to those cases, when an interest characterized as a right was jeopardized by some legislative or executive action, constitutional protections were applicable; when privileges were at issue, it was sometimes said that no constitutional protections attached. This doctrine was never well developed, but it kept reappearing and posed a serious obstacle to constitutional succor for recipients under a growing array of government benefit programs, for those programs surely would fall on the privilege side of any such line. In both Shapiro and Goldberg, however, the Court rejected the distinction as constitutionally irrelevant. In subsequent cases, the notion behind the distinction has occasionally resurfaced (without the language of rights and privileges), but only as a consideration in defining the strength of constitutional protection, and not as a reason for denying protection altogether. Thus, the Supreme Court has repeatedly held that state and local governments need not subsidize abortion, even though a pregnant woman has a constitutionally protected interest in seeking out an abortion if she chooses. These decisions suggest that the state retains a higher degree of discretion over the dispensation of benefits than over the imposition of burdens, but they do not resurrect the sort of absolute discretion with which the rightprivilege distinction was associated.
Lawyers for the indigent did have important constitutional triumphs, but usually by joining problems of the poor to some other theme with which the Court could feel more comfortable. Expansion of the franchise and perfection of the electoral system, for instance, have been important contemporary themes in constitutional law, and the Court has been responsive to the handicaps placed on the poor in participating in democratic institutions. In 1966 the Court struck down a state poll tax as a condition on voting, and in subsequent cases, the Court limited property qualifications for voting in some specialized contexts. It has also restricted the filing fees that can be charged indigent candidates for public office.
The emphasis on fair process for indigents in the criminal cases and in Goldberg has been extended to certain civil proceedings. The movement, however, has been cautious as the Court undoubtedly keeps a wary eye on the costs involved. Thus, the state cannot require an indigent to pay court costs or filing fees as a condition to filing a divorce action. The state must pay for blood testing in a state-initiated paternity proceeding. And in compelling circumstances the state must provide counsel in an action to terminate parental rights. On the other hand, the state is not required to waive filing fees for a bankruptcy proceeding for an indigent or for an appeal of an adverse decision in a welfare hearing.
Some of the early opinions extending procedural protection to indigents in criminal cases used the language of equal protection, but the equal protection clause is not apt as a basis for procedural protections, because there is no obvious reference group with which the indigent defendent is to be compared. The more recent opinions have thus recurred to procedural due process notions of fundamental fairness as the standard against which arguments for subsidy are to be judged.
This attraction to themes that do not explicitly draw on the fact of poverty means that many of the advances in constitutional poverty law have resulted from litigation on behalf of groups whose members are mostly poor but not necessarily so. The Court has, for instance, established substantial constitutional protections for aliens within the jurisdiction of the United States, for illegitimate children, for the mentally retarded, and for youngsters subjected to juvenile proceedings. The opinions in these cases often draw on the impecuniousness of the protected group, but seldom in a way that makes the doctrines announced depend on that fact.
One important extension of constitutional rights of the poor has been snatched by state courts and state constitutional law out of the mouth of federal defeat. Primary and secondary education in the United States has been financed in large part through local property taxes, with the result that property-rich districts have been able to sustain much higher per-pupil expenditures for education than have property-poor districts. Drawing on the fundamental rights branch of equal protection doctrine developed in Shapiro and other cases, students in property-poor districts challenged these financing schemes. The Supreme Court rejected the claim in its 1973 decision san antonio independent school district v. rodriguez, holding that there was no fundamental right to a particular level of education and that the students in property-poor districts, who need not necessarily be poor, were entitled to no heightened constitutional protection. Rodriguez, like the welfare cases, suggests judicial disinclination to become involved in financing decisions for major public programs.
Faced with a reluctant federal court system, however, poverty lawyers and their clients increasingly have turned to state courts and state constitutional claims. In the case of educational financing, they could draw on equal protection provisions in state constitutions or on provisions assuming state responsibility for public education. The result has been court-ordered reform of educational financing in a substantial number of states.
Twenty-five years after the war on poverty began, there is no constitutional law of the poor in the way that there is a constitutional law of race relations or interstate commerce. But constitutional law has changed over that time in ways that have been important for the legal status of many people who are poor. It has changed mostly in small ways and in many different contexts, but those small and diverse changes add up to an altered landscape in which constitutional law is one tool among many in addressing the myriad legal problems that beset the poor.
Robert W. Bennett
La France, Arthur B. et al. 1973 Law of the Poor. St. Paul, Minn.: West Publishing Co.
Michelman, Frank I. 1969 Foreword: On Protecting the Poor Through the Fourteenth Amendment. Harvard Law Review 83:7–59.
Winter, Ralph K. 1972 Poverty, Economic Equality, and the Equal Protection Clause. Supreme Court Review 1972:41–102.