Volume 61, Issue 2 Page 203 Stanford Law Review RETHINKING CONSTITUTIONAL WELFARE RIGHTS Goodwin Liu © 2008 by the Board of Trustees of the Leland Stanford Junior University, from the Stanford Law Review at 61 STAN. L. REV. 203 (2008). For information visit http://lawreview.stanford.edu. LIU 61 STAN. L. REV. 203 1/23/2009 8:57 PM ARTICLES RETHINKING CONSTITUTIONAL WELFARE RIGHTS Goodwin Liu* A generation ago, Harvard law professor Frank Michelman advanced an influential and provocative vein of scholarship theorizing the content and justiciability of constitutional welfare rights. Michelman’s writings, which endure as the most insightful and imaginative work in this area, sought to anchor the Supreme Court’s welfare rights jurisprudence in a comprehensive theory of distributive justice, in particular John Rawls’s theory of justice as fairness. In this Article, I reappraise Michelman’s seminal work and argue that his effort to ground the adjudication of welfare rights in a comprehensive moral theory ultimately confronts intractable problems of democratic legitimacy. My thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcendent moral principles for an ideal society, but to the culturally and historically contingent meanings of particular social goods in our own society. Informed by the central themes of Michael Walzer’s Spheres of Justice, I argue that judicial recognition of welfare rights is best conceived as an act of interpreting the shared understandings of particular welfare goods as they are manifested in our institutions, laws, and evolving social practices. On this account, the existence of a welfare right depends on democratic instantiation in the first instance, typically in the form of a legislated program, with the judiciary generally limited to an interstitial role. Further, because the shared understandings of a given society are ultimately subject to democratic revision, courts cannot fix the existence or contours of a welfare right for all time. So conceived, justiciable welfare rights reflect the contingent character of our society’s collective judgments rather than the tidy logic of a comprehensive moral theory. * Associate Dean and Professor of Law, University of California, Berkeley School of Law. For helpful comments and conversations on this project, I thank Kathy Abrams, Catherine Albiston, Jesse Choper, Dan Farber, Willy Fletcher, Phil Frickey, Robert Gordon, Chris Kutz, Frank Michelman, Ann O’Leary, Sarah Song, Steve Sugarman, and my colleagues in the Junior Working Ideas Group at Boalt. I also benefited greatly from workshops with faculty and students at Columbia, Georgetown, Stanford, and the University of Chicago, and I am grateful to Gillian Metzger, Trevor Morrison, Robin West, Larry Kramer, and David Strauss for those opportunities and for their insightful comments too. 203 LIU 61 STAN. L. REV. 203 1/23/2009 8:57 PM 204 STANFORD LAW REVIEW [Vol. 61:203 In developing my thesis, I consider two objections: first, that the judicial role I propose is inherently conservative, and second, that it carries an intolerable risk that judges, in the name of interpreting society’s values, will impose their own values on society. Using various Supreme Court opinions as examples, I show that both dangers can be avoided when courts employ constitutional doctrine in a dialogic process with the legislature to ensure that the scope of welfare provision democratically reflects our social understandings. INTRODUCTION.......................................................................................................204 I. ON PROTECTING THE POOR..................................................................................212 II. ONE VIEW OF RAWLS’S THEORY OF JUSTICE.....................................................218 A. Judicial Review in Ideal and Nonideal Theory ...........................................220 B. The Uneasy Role of Moral Theory in Adjudication.....................................224 III. TOWARD AN INTERPRETIVE APPROACH TO JUDICIAL RECOGNITION OF WELFARE RIGHTS.............................................................................................227 A. Michelman Revisited...................................................................................229 B. One View of Walzer’s Spheres of Justice ....................................................233 C. Some Examples............................................................................................236 D. Limiting the Judicial Role ...........................................................................243 IV. OBJECTIONS .....................................................................................................247 A. Conservatism and Criticism........................................................................248 B. Indeterminacy and Judicial Activism ..........................................................253 CONCLUSION..........................................................................................................266 INTRODUCTION Once a subject of intense interest in the courts and legal academy, the idea that our Constitution guarantees affirmative rights to social and economic welfare has for some time been out of fashion. In 2001, William Forbath observed that “like Banquo’s ghost, the idea of constitutional welfare rights will not die down, but it is not exactly alive, either. No fresh or even sustained arguments on its behalf have appeared for over a decade; only nods, and glancing acknowledgments.”1 As a doctrinal matter, the prevailing view is that 1. William E. Forbath, Constitutional Welfare Rights: A History, Critique and Reconstruction, 69 FORDHAM L. REV. 1821, 1825 (2001); see Linda Greenhouse, On the Wrong Side of 5 to 4, Liberals Talk Tactics, N.Y. TIMES, July 8, 2007, at WK3 (“[T]he energy and vision that [once] animated liberal legal scholarship [has] shriveled to the point that . enshrining equal education as a fundamental right or making the alleviation of poverty a constitutional imperative sound like left-over fantasies from a bygone age.”). Although the topic has drawn limited scholarly interest in the context of American constitutional law, there is an active literature on social welfare rights in comparative constitutional law. See, e.g., MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW (2008); Rosalind Dixon, Creating Dialogue About Socioeconomic Rights: Strong-Form Versus Weak-Form Judicial Review Revisited, 5 INT’L J. CONST. L. 391 (2007); Kim Lane Scheppele, A Realpolitik Defense of Social Rights, 82 TEX. L. REV. 1921 (2004); Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 YALE J. INT’L L. 113 (2008). LIU 61 STAN. L. REV. 203 1/23/2009 8:57 PM November 2008] CONSTITUTIONAL WELFARE RIGHTS 205 issues of poverty and distributive justice should be resolved through legislative policymaking rather than constitutional adjudication.2 Some commentators (myself included) have argued that such policymaking may yet have constitutional significance if the existence and binding force of constitutional welfare rights are distinguished from the question of judicial enforcement.3 But it remains a fact of our legal culture that what counts as a constitutional right is deeply shaped by the courts, and for a generation, our courts have steered clear of social or economic rights,4 even as severe deprivation and inequality continue to pose serious challenges to our commitment to human dignity and equal citizenship. Things were not always so. During the 1960s and 1970s, welfare rights held a prominent place on the public agenda not only in the legislative process but also in mainstream constitutional discourse.5 In the Supreme Court, the 2. See Harris v. McRae, 448 U.S. 297, 318 (1980); Maher v. Roe, 432 U.S. 464, 471 (1977); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 18-37 (1973); Lindsey v. Normet, 405 U.S. 56, 74 (1972); Dandridge v. Williams, 397 U.S. 471, 487 (1970). 3. See, e.g., CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 131-39 (1997); TUSHNET, supra note 1, at 247-58; Forbath, supra note 1, at 1888-89; Goodwin Liu, Education, Equality, and National Citizenship, 116 YALE L.J. 330, 337-40 (2006); Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1218 (1978); Robin West, Unenumerated Duties, 9 U. PA. J. CONST. L. 221 (2006). 4. When I refer to “courts” in this Article, I am primarily concerned with the federal courts, where the problem of legitimacy in recognizing welfare rights is most acute. Although state courts also face a problem of legitimacy in adjudicating welfare rights, the problem is somewhat mitigated by express textual references to welfare rights (e.g., education clauses) in many state constitutions and by the greater political accountability of state judges as compared to federal judges. State courts have played a significant role in protecting educational rights under state constitutions in recent decades. See Michael A. Rebell, Poverty, “Meaningful” Educational Opportunity, and the Necessary Role of the Courts, 85 N.C. L. REV. 1467 (2007). 5. See, e.g., John E. Coons et al., Educational Opportunity: A Workable Constitutional Test for State Financial Structures, 57 CAL. L. REV. 305 (1969); Archibald Cox, The Supreme Court, 1965 Term—Foreword: