Russell and Duenes

Welfare Guards Against Social Malaise

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justicebrennanSo said Justice Brennan in Goldberg v. Kelly, 397 U.S. 254, 265 (1970). In Goldberg, the Court was deciding whether a person on welfare was entitled to an administrative, evidentiary hearing prior to the termination of his or her welfare benefits. Id. at 255. Certain New York residents who were receiving AFDC benefits “alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law.” Id. at 256. The state of New York at the time had no provision for giving someone a hearing prior to a determination that the person’s welfare benefits were going to be cut off. Id. at 256-57. The Court ultimately held that welfare recipients are entitled to such an evidentiary hearing. Id. at 261. One of the Court’s main rationale’s for its holding was that welfare recipients are generally in desperate straits and cannot afford to have their welfare benefits cut off while the state takes the time to decide whether the recipient is, in fact, entitled to the benefits. Id. at 264. I do not generally disagree with the Court’s rationale that those receiving welfare are in a desperate situation, and often cannot afford to be cut off.

Yet I found myself having trouble with these words by Justice Brennan:

“The constitutional challenge cannot be answered by an argument that public assistance benefits are “a ‘privilege’ and not a ‘right.’ . . . From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders. 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.” Id. at 262, 264-65.

I would not say that Justice Brennan was the first one to argue this line, but his words certainly have helped plant the notion in many Americans’ minds that welfare is a “right” and not a “privilege.” Id. at 262. Yet how did it become so? And how are we changed as human beings when we come to see welfare as a “right?” As a kind of property interest to which we are entitled?

Further, I think Justice Brennan’s assertions about what welfare actually produces amongst its recipients – at least in a general sense – are not the case at all. Does welfare, as currently administered in our nation “foster the dignity and well-being of all persons within its borders?” Id. at 265.  Or does it dehumanize and paralyze them instead? Doubtless many people are poor due to “forces not within [their] control,” as Justice Brennan says. Id. Yet I wonder if one of those “forces” that has made so many people dependent on the government has been the paternalistic government welfare policies themselves. For example, can one account for the urban underclass we see in our major cities simply by attributing it all to “racism?” I think not. IT’s complex, to be sure, but why are there so many missing fathers and broken families in our urban centers, both of which are primary factors in causing poverty? It’s beyond their control, yes, but surely the causes underneath it matter. And when a culture and nation cannot speak about them honestly, then the problem will remain intractable.

Does welfare by and large “bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community?” Id. Again, it certainly may do this, and clearly does, in many specific cases. But is this the overall effect of our welfare policies? Is it even the intent of such policies, stated or not?

Can welfare be said to “guard[] against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity.” Id. Or does welfare seem to foster such malaise, frustration and insecurity in its recipients?

Whatever the answers, Justice Brennan’s sentiments, and others like them, have rooted in our minds the idea that government-sponsored welfare is indispensable if we are going to “help people,” that government welfare in particular is part of the “social contract,” and is therefore a “right” or “entitlement,” and not a gift or privilege or something that could be – to some extent at least – better accomplished by other means. I think the shift to this understanding of welfare has had devastating consequences, many of which are outlined by Anthony Esolen’s piece here.



Written by Michael Duenes

February 27, 2013 at 7:38 am

One Response

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  1. In regards to this opinion… since you are in Law School, you might want to research the history of the “Settlement Certificate”. It might provide some clarification of the thoughts behind the opinion along with government intent and it’s related of liabilies.


    February 27, 2013 at 11:29 am

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