Welfare State

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The United States Constitution, unlike many constitutions in the world, does not mandate welfare rights. For example, the Soviet Constitution of 1977 provided for "guaranteed work, health protection, [and] education." In contrast, our Constitution guarantees freedom of speech, freedom of the press, and voting rights that cannot be denied because of race or sex. The people can then use the right to vote and the right of free speech and other such rights to persuade legislators to enact laws providing for welfare rights such as workers ' compensation, public education, aid to dependent children, Social Security benefits, medicare, and so forth. The United States Constitution, in short, guarantees democracy, and with democracy the people can choose to have as much or as little of a welfare state as they wish.

Such is the modern view of the American Constitution, but it was not always so. To understand the modern view we must first look briefly at the historical background. Toward the end of the last century and during the first part of this century until President franklin d. roosevelt's 1937 court-packing plan, the Supreme Court was antagonistic toward the early efforts of the state and federal governments leading to the modern welfare state. The Court, often over biting dissents, invalidated efforts to enact a progressive federal income tax, minimum-wage legislation, maximum-hour laws, child labor laws, and so forth.

Justice oliver wendell holmes, jr. , was one who dissented from the court's efforts (through the use of the due process clause, a belief in "liberty of contract," and a narrow interpretation of federal commerce powers) to limit the power of the government to engage in social welfare legislation. Holmes's dissent in lochner v. new york (1905) objected to the majority's decision invalidating a state law setting sixty hours as the maximum workweek for bakers. "The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." Later, in adkins v. children ' s hospital (1923), when the Court invalidated a federal law setting minimum wages for women and children in the district of columbia, Holmes said in dissent, "Pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts."

Within five years of Holmes's leaving the Court (after FDR's Court-packing plan of 1937 failed), the Court effectively overruled more than a quarter-century of opinions and recognized the power of the state and federal governments to engage in a wide range of activities that promoted various aspects of a modern welfare state. Although the constitutional power of government to provide welfare benefits does not constitutionally obligate it to do so, the Constitution does place important limits on the government's discretion.

The Constitution assures that once the state grants welfare rights, those benefits are not distributed in a way that violates substantive guarantees. For example, there is no constitutional requirement that a state enact legislation providing public housing for poor people. However, the Fourteenth Amendment forbids the state, once it has provided for public housing, to pass out such benefits in a way that violates the equal protection of the law. Thus, if a state builds public housing, it cannot then exclude poor people who are black, for to do so would constitute racial discrimination in violation of the equal protection clause. Similarly, if the state provides for medical services as part of its welfare program, the state cannot deny those medical services to Democrats or Socialists, because that would unconstitutionally deprive someone of a governmental benefit because of that person's beliefs, in violation of the first amendment as applied to the states through the incorporation doctrine.

Implied constitutional rights, like explicit ones, limit the states when they distribute welfare benefits. For example, the Constitution does not explicitly grant a right to travel within the United States, and yet the right certainly exists. As Justice potter j. stewart noted in united states v. guest (1966), although the right to travel "finds no explicit mention in the Constitution," the explanation may be that "a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution."

Thus, in edwards v. california (1941) the Court invalidated, under the commerce clause, a California statute that made it a misdemeanor to assist in bringing into that state any indigent person who was not already a resident of California and was known to be an indigent. The Court rejected the state's argument that the migration of poor persons brought severe health and financial problems to the state. The concurring opinion of Justice robert h. jackson noted that "indigence' itself is neither a source of rights nor a basis for denying them." Otherwise, the heritage of our constitutional privileges and immunities "is only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will."

Later, in shapiro v. thompson (1969), the Court invalidated several state statutes and a District of Columbia statute that denied welfare benefits to persons who had not resided within the jurisdiction for at least one year. The Court struck these durational residence requirements because the state laws violated the equal protection clause of the Fourteenth Amendment and because the law of the District of Columbia (which is not governed by the Fourteenth Amendment because it is not a state) violated the equal protection component that has been found within the due process clause of the Fifth Amendment (which restricts the federal government).

The Court argued that the effect of the residence requirements was to deter the entry of indigents into jurisdictions with durational residence requirements, thus burdening the indigents' right to interstate travel. Because this right to travel is "fundamental," the Court would invalidate the statutory classification unless the state could show that it was "necessary to promote a compelling governmental interest" (emphasis in original). The majority rejected the argument that the durational residence requirement was necessary to deter indigents who migrated solely to obtain another jurisdiction's more favorable welfare benefits, holding that no state has the right to exclude poor persons from its borders. Nor may a state distinguish between new and old residents when that distinction burdens the fundamental right to travel. The states (and the District of Columbia), said the Court, may not create subclasses of citizens based on the length of time that persons have been residents. The states, in short, may require that indigents be residents of the state at the time they apply for welfare benefits, but the states may not impose durational residence requirements.

Similarly, in Memorial Hospital v. Maricopa County (1974) the Court invalidated an Arizona statute requiring a one-year durational residence in a county as a condition for receiving nonemergency medical care at the county's expense. The Court said that medical care, like welfare assistance, is "a basic necessity of life"; hence, the case was governed by Shapiro v. Thompson.

However, in Starns v. Malkerson (1971) the Court upheld a University of Minnesota regulation providing that no student could qualify as a resident for purposes of lower in-state tuition unless the student had been a resident of Minnesota for a year. College tuition, unlike food, clothing, or shelter, is not one of the basic necessities of life.

In harper v. virginia state board of elections (1966) the Court invalidated a Virginia law conditioning voting on payment of an annual poll tax of $1.50. Voting, said the Court, is a fundamental right preservative of our other rights, and hence, a state violates the equal protection clause whenever it makes the affluence of the voter or payment of any fee a requirement for voting. The state has the power to fix qualifications for voting, such as requiring residence and voting registration. But "wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process."

The Court has also held that indigents must be granted equal access to various aspects of the criminal process that are basic to the fair determination of their guilt or innocence. Once the state has fulfilled this duty by giving indigents the opportunity for a fair trial and access to the initial appellate process, there is no requirement that the state go further and level all economic distinctions by continuing to provide free counsel throughout successive appeals and collateral attacks.

These cases illustrate an important aspect of Supreme Court jurisprudence involving welfare rights and the Constitution. When the Court reviews certain classifications under the equal protection clause—for example, a classification based on race or color—the Court treats the classification as "suspect" and unlikely to be approved unless the state can demonstrate that the suspect classification is necessary to promote a compelling state interest. Thus, in cases like brown v. board of education (1954), the Court invalidated state laws requiring school segregation according to race. Similarly, the Court engages in active review under the equal protection clause of state laws that classify "fundamental" rights (like the right to travel or the right to vote) on the basis of poverty.

Modern Supreme Court Justices have concluded that where suspect classes or fundamental rights are not at issue there is nothing in the Constitution that authorizes judges to decide economic policy regarding the allocation of income and wealth through the review of legislative classifications. Poverty, unlike race, is not a suspect classification. And there is no fundamental constitutional right to be free of poverty. As a general matter, the state constitutionally may engage in legislative classifications that pass out benefits or burdens in ways that disadvantage poorer people so long as the law has a rational basis. Thus, a state may enact a progressive income tax, even though such a law requires richer persons to pay a greater percentage of their income to the states than poorer persons. Or a state may enact a sales tax on food, although such a regressive tax requires poorer persons to pay a greater percentage of their income to the states than do richer persons.

For example, the Court rejected the challenge to the welfare law involved in dandridge v. williams (1970). In that case, the Court upheld state legislation that set a maximum amount for welfare aid to any one family; the law, in effect, offered lessened benefits for children born to families over a certain size. The appellees in that case argued that the law violated the equal protection clause by discriminating against them because of their larger families. The majority rejected the claim: "In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis,' it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality."' There is a fundamental right to travel; there is no fundamental right to welfare.

Similarly, although a woman may have a constitutional right to an abortion under certain circumstances, it is constitutional for the state to deny state funding for medically necessary abortions, even when it is providing funds for childbirth. The state need not provide affirmative assistance to a poor woman to procure an abortion any more than the state must provide subsidized airfare to protect an indigent's right to travel.

san antonio independent school district v. rodriguez (1973) upheld the constitutionality of a state property tax system that financed primary and secondary education in such a way as to create different districts with large variations in the amount of money spent on the education of children, depending on where the children lived. Some districts were much richer than others, with the poorer districts having much less taxable wealth subject to the property tax. The majority found nothing in the allocation of education opportunities based on district wealth that furnished a constitutional justification for active and close judicial supervision of the legislative policy. The Court emphasized that it had never adopted an active standard of review solely because the law burdened poor persons in the allocation of benefits, unless those benefits were deemed to be fundamental constitutional rights.

However, in a footnote to the majority opinion in Rodriguez, Justice lewis f. powell suggested that if a state set up an educational system that absolutely deprived poor children of the opportunity for any education, legislative choice might raise problems under the equal protection clause: "If elementary and secondary education were made available by the State only to those able to pay a tuition assessed against each pupil, there would be a clearly defined class of "poor' people—definable in terms of their inability to pay the prescribed sum—who would be absolutely precluded from receiving an education. That case would present a far more compelling set of circumstances for judicial assistance than the case before us today."

In short, the issue in fundamental rights cases is whether the statute in question limits the fundamental right in a way that violates the Constitution, and not whether the statute is fair or unfair to poor people. In fact, the law in question may be unconstitutional, even though it seeks to level wealth distinctions in the exercise of the fundamental right rather than to create wealth distinctions. In buckley v. valeo. (1976), for example, the Court invalidated limits on campaign spending by candidates for public office as an unconstitutional burden on the fundamental right to free speech, guaranteed by the First Amendment. Although Congress designed the legislation in part to equalize the ability to run for office between persons of differing wealth, the Court found no interest of a sufficiently compelling magnitude to justify the limitation on free speech rights.

In addition to these substantive guarantees, the Constitution also provides procedural protections for persons entitled to welfare benefits under state or federal law. The due process clause of the Fourteenth Amendment forbids a state to deprive any person of life, liberty, or property without due process of law. The Fifth Amendment similarly restricts the federal government. Since 1970, the Supreme Court has recognized that government welfare benefits may constitute statutory entitlements, a new type of "property" that the government may not take away without offering basic procedural protections.

In goldberg v. kelly (1970) the Court held that a state could not constitutionally terminate public assistance payments for a recipient without affording her the opportunity for an evidentiary hearing prior to the termination. As the Court later explained in board of regents v. roth (1972):

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it.… He must have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that secure certain benefits and that support claims of entitlements to those benefits. Thus, the welfare recipients in Goldberg v. Kelly had a claim of entitlement to welfare benefits that was grounded in the statute defining eligibility for them.

Government need not offer welfare or other such benefits to its citizens. But once government decides to offer such benefits and establishes standards that define when a person is eligible, the government has created an entitlement and cannot arbitrarily deny those benefits. It must provide procedural due process. The government may provide benefits in cash, such as social security benefits or farm subsidies; it may offer benefits in kind, such as free housing in a publicly-owned building; it may offer benefits in hybrid forms, such as food stamps, which can only be redeemed for particular items. In all cases, once the government establishes such benefits as entitlements, the government can withdraw them from particular individuals only after it offers procedural protections such as fair notice and an opportunity to be heard.

The U.S. Constitution does not demand a welfare state. Yet the Constitution is flexible and adaptable enough to allow it. The Constitution guarantees that if the state does provide for welfare protection, the state's largess will be subject to various substantive and procedural limitations.

Ronald D. Rotunda

(see also: Campaign Finance; Economic Due Process; Economic Equal Protection; Economic Regulation; Poverty Law and the Constitution; Substantive Due Process.)


Nowak, John E. and Rotunda, Ronald D. 1991 Constitutional Law, 4th ed. St. Paul, Minn.: West Publishing Co.

Reich, Charles 1964 The New Property. Yale Law Journal 73:733–787.

Rotunda, Ronald D. et al. 1986 Treatise on Constitutional Law: Substance and Procedure. 3 vols. St. Paul, Minn.: West Publishing Co.

Van Alystyne, William 1968 The Demise of the Right-Privilege Distinction in Constitutional Law. Harvard Law Review 81:1439–1464.

Winter, Ralph 1972 Poverty, Economic Equality, and the Equal Protection Clause. Supreme Court Review 1972:41–102.