From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.
That beautiful bit of legal rhetoric is from the 1970 U.S. Supreme Court case Goldberg v. Kelly, 397 U.S. 254, 264-65. That case declared welfare benefits to be entitlements protected by the due process clause of the Fourteenth Amendment, and the quote was written by Justice William Brennan, one of the old guard liberal members of the Warren and Burger Courts. I came upon this quote in my research of Fourteenth Amendment case law over the last several months.
Unfortunately, the quote is almost complete nonsense. It is impossible to seriously argue that the United States was truly committed to the dignity and well-being of “all persons within its borders” from its founding. Human slavery, after all, was legal and still growing in the late 1700s. Perhaps if you exclude African Americans from the definition of “persons,” that quote would begin to makes sense. You’d also need to exclude Native Americans, who were systematically exiled and exterminated as the once-colonial population moved west during the 1800s. And of course it would be over a century before women were allowed to vote.
But aside from the obvious oversights of slavery, Manifest Destiny, and female subjugation, Brennan’s quote is belied by the subsequent history of welfare reform following Goldberg. If welfare is truly an entitlement flowing from a federal commitment to fostering dignity and well-being, Congress’ systematic downsizing of that entitlement over the next thirty years suggests otherwise.
In the late 1960s, a group of New York residents brought suit in federal court over the termination of welfare benefits. They argued that, under the due process clause of the Fourteenth Amendment, the state could not terminate their benefits without first holding a formal hearing to determine their eligibility. Only after the hearing could their benefits be taken away. New York, on the other hand, argued that the existing process whereby a “higher official” in the department could decide to terminate the benefits prior to a formal hearing was sufficient.
The district court agreed with the plaintiffs, and ruled that a formal hearing was required before benefits could be terminated. The case found its way to the Supreme Court by 1969, and a majority led by Justice Brennan affirmed the district court ruling.
Immediately following the quote above, Brennan wrote:
We have come to recognize that forces not within the control of the poor contribute to their poverty. This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to “promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” The same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pre-termination evidentiary hearings are indispensable to that end.
397 U.S. at 265.
The Court held that welfare benefits were an entitlement – something that people were owed as a matter of course as long as they qualified – and the state could not take them away without formal due process under the Fourteenth Amendment.
Justice Hugo Black, known for his hard line position on the First Amendment (“'Congress shall make no law' means Congress shall make NO law”) and his rigorous defense of desegregation, dissented from the majority in Goldberg. His primary opposition to expanding the due process clause to include welfare benefits was based on the separation of powers – the legislature was within its discretion to make welfare rules, and it wasn’t the place of the Court to intervene. He also opposed it on logical grounds:
It somewhat strains credulity to say that the government's promise of charity to an individual is property belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment.
397 U.S. at 275.
Black then proceeds to a logical device (some may call it a fallacy) that has been more recently embraced by Justices like Antonin Scalia: the slippery slope.
Thus the end result of today's decision may well be that the government, once it decides to give welfare benefits, cannot reverse that decision until the recipient has had the benefits of full administrative and judicial review, including, of course, the opportunity to present his case to this Court. Since this process will usually entail a delay of several years, the inevitable result of such a constitutionally imposed burden will be that the government will not put a claimant on the rolls initially until it has made an exhaustive investigation to determine his eligibility. While this Court will perhaps have insured that no needy person will be taken off the rolls without a full "due process" proceeding, it will also have insured that many will never get on the rolls, or at least that they will remain destitute during the lengthy proceedings followed to determine initial eligibility.
397 U.S. at 279.
In other words, if due process is interpreted consistently in the future as it was in the Goldberg case, it will someday be so difficult to get undeserving people off of welfare benefits that the government will instead erect high barriers to letting them on in the first place.
It turns out that Justice Black was both wrong and right at the same time. By the middle of the Clinton era, “welfare reform” was a hot topic. Reactionary media outlets since the mid-70s had created a stereotype of welfare recipients as uniformly fraudulent layabouts, exploiting the generosity of the state for their own personal gain. The image of the “welfare queen,” a single black woman who purposely has illegitimate children to drive up her benefits and otherwise avoid her productive responsibilities while swimming in unearned wealth became so prolific that even “liberal” publications like the New Republic had embraced it. Actual welfare fraud remained rare, of course, but the stereotype of the welfare cheat, helped along by persistent racism, motivated Congress to act. The “Personal Responsibility and Work Opportunity Act” was signed into law by then-President Bill Clinton in 1996.
One of the Act’s many welfare reforms shifted control of benefit distribution from the federal government to the states. Instead of providing benefits directly, Congress would provide the states with block grants, which the states would then administer through the Temporary Assistance for Needy Families (TANF) program. This would “increase the flexibility of the States” to combat “the dependence of needy parents on government” and “prevent and reduce the incidence of out-of-wedlock pregnancies.” 42 U.S.C. 601(a).
One interesting subsection of the block grant provision was a direct response to the holding in Goldberg v. Kelly:
(b) No individual entitlement. This part [42 USCS §§ 601 et seq.] shall not be interpreted to entitle any individual or family to assistance under any State program funded under this part [42 USCS §§ 601 et seq.].
In effect, Justice Brennan’s opinion in Goldberg was summarily overruled by Congress. Now, states could make up their own rules on how benefits were terminated, and the due process clause of the Fourteenth Amendment would no longer tie their hands.
So in one regard, Justice Black was wrong. His slippery slope of welfare benefits impossible to terminate never materialized. Instead, the federal government effectively cut the legs out from under Goldberg v. Kelly, which relied on the finding that welfare benefits were entitlements, and gave the states wide discretion in how benefits would be given and taken away. The broad due process rights enjoyed by people on public assistance vanished into thin air.
In another regard, however, Justice Black was right. Welfare reform also increased the eligibility requirements for benefits to exclude many who would have otherwise qualified in earlier years. The new rules also imposed strict employment obligations. Welfare became “workfare.” And even though both the poverty rate and the unemployment rate have increased in recent years, the number of people receiving welfare benefits is down. In 2000, nearly 6 million people received TANF benefits with poverty at 8.7% and unemployment at 4%. By 2010, with both poverty and unemployment 3-4 points higher, only 4.3 million people were receiving benefits.
As a quote, Justice Brennan’s conception of this country’s mission of dignity and well-being for all is reassuring and inspirational. As a historical account, however, it’s woefully absurd. America at its founding was committed to the dignity and well-being of white men only. Others, like blacks, natives, and women, didn’t qualify as “persons” to whom that commitment applied. And as a mandate for future action, Brennan’s words were later ignored and legislated around to diminish help to the impoverished as a whole to punish the fraud of a tiny fraction of welfare recipients.
If the Nation has been committed to any particular mission since its founding, I suspect it is to something different than Justice Brennan’s particular conception of “dignity and well-being.”