In 1969, the United
States Supreme Court was confronted with the question of “whether a State that terminates
public assistance payments to a particular recipient without affording him the
opportunity for an evidentiary hearing prior to termination denies the
recipient procedural due process in violation of the Due Process Clause of the
Fourteenth Amendment.” [1] The
case was Goldberg v. Kelly, and the Court answered the question
in the affirmative.
The obvious concern was
that a welfare recipient might be deprived of necessary aid as his challenge to
the state action remained pending. As the trial court that first heard the case
put it, “‘By hypothesis, a welfare recipient is destitute, without funds or
assets.... Suffice it to say that to cut off a welfare recipient in the face of…“brutal
need” without a prior hearing of some sort is unconscionable, unless
overwhelming considerations justify it.’” The Court “rejected the argument that
the need to protect the public’s tax revenues supplied the requisite ‘overwhelming
consideration.’”
The Court also rejected
the notion that the constitutional challenge could “be answered by an argument
that public assistance benefits are ‘a “privilege” and not a “right.”’” In a
footnote, the Court made this point:
“It may be realistic
today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’
Much of the existing wealth in this country takes the form of rights that do
not fall within traditional common-law concepts of property. It has been aptly
noted that
“‘[s]ociety today is
built around entitlement. The automobile dealer has his franchise, the doctor
and lawyer their professional licenses, the worker his union membership,
contract, and pension rights, the executive his contract and stock options; all
are devices to aid security and independence. Many of the most important of these
entitlements now flow from government: subsidies to farmers and businessmen,
routes for airlines and channels for television stations; long term contracts
for defense, space, and education; social security pensions for individuals.
Such sources of security, whether private or public, are no longer regarded as
luxuries or gratuities; to the recipients they are essentials, fully deserved,
and in no sense a form of charity. It is only the poor whose entitlements,
although recognized by public policy, have not been effectively enforced.’”
The Fourteenth Amendment
provides that no State shall “deprive any person of life, liberty, or property,
without due process of law….,” [2] and
the Court held that welfare recipients have a right to due process before
having their benefits taken away. The Court was thus recognizing that welfare
recipients had a property interest in their benefits.
The logic was impeccable,
though one can easily imagine the outrage generated by such a holding. Welfare
is widely considered a kind of government charity that one receives as the donee
of government beneficence.
But the fact is, welfare
is a right created by statute. The law says that people who live below a
certain level of means are entitled to financial assistance, and if one is such
a person he is entitled to the benefit; that is to say, he is entitled to it as
a matter of law. He really is entitled to the benefit, and, therefore, has a
property interest in it.
Devotees of Social
Darwinism will be quick to say that this can be easily dispensed with by simply
getting rid of any statute or other positive law that provides for welfare
benefits. And as far as the reasoning of the Goldberg case goes, that
point seems valid. But the issue really goes deeper than that.
The Fourteenth Amendment
references “life, liberty, [and] property,” and those words have historical
legal meaning. Sir William Blackstone, in his Commentaries on the Laws of
England used similar language in describing the rights of every Englishman.
“The rights themselves
thus defined by these several statutes, consist in a number of private
immunities; which will appear, from what has been premised, to be indeed no
other, than either that residuum [remainder] of natural liberty, which is not
required by laws of society to be sacrificed to public convenience; or else
those civil privileges, which society has engaged to provide, in lieu of the
natural liberties so given up by individuals. These therefore were formerly,
either by inheritance or purchase, the rights of all mankind; but, in most
other countries of the world being now more or less debased and destroyed, they
at present may be said to remain, in a peculiar and emphatic manner, the rights
of the people of England. And these may be reduced to three principal or
primary articles; the right of personal security, the right of personal
liberty; and the right of private property: Because as there is no other known
method of compulsion, or of abridging man’s natural free will, but by an
infringement or diminution of one or other of these important rights, the
preservation of these, inviolate, may justly be said to include the
preservation of our civil immunities in their largest and most extensive sense.”
[3]
It is clear that, for
Blackstone, these rights were not granted by the sovereign, but “the rights of
all mankind….” And we cannot easily dismiss this as no more than the opinion of
Blackstone, because the United States inherited the laws of England, Blackstone
being a chief expositor of same, and the words of our Constitution refer back
to them. Thus, we must understand the laws of England at the time of our
nation’s founding in order to properly understand our own law.
Now the right to life is
included in the right of personal security, as Blackstone explains:
“The right of personal
security consists in a person’s legal and uninterrupted enjoyment of his life,
his limbs, his body, his health, and his reputation.”
Modern prejudices may
incline one to think that society fulfills its duty in this regard by
refraining from positive actions adverse to these interests, and enacting laws to
protect these rights against infringement. But it is not so. Blackstone goes on
to say,
“The law not only regards
life and member, and protects every man in the enjoyment of them, but also
furnishes him with everything necessary for their support. For there is no man
so indigent or wretched, but he may demand a supply sufficient for all the
necessities of life, from the more opulent part of the community, by means of
several statutes enacted for the relief of the poor, of which in their proper places.”
The right to life, then, requires
positive action on the part of society to supply to the indigent what is
necessary to maintain life. Blackstone wrote in the 18th century,
and some will be surprised that he took such a modern view of the matter. But
the truth is, it is the view that the poor should be left to the vicissitudes
of voluntary charity that is of more recent vintage.
The Constitution requires
that no state deprive a person of life without due process of law. The
historical meaning of that requirement includes the obligation to provide the
means of life to the indigent. Therefore, every state has the obligation to
provide for the indigent within its borders. And since the federal government
has the power to create money, it should fulfill the subsidiary role of
funding.
