Welfare as a Property Right

Thomas Ross, professor of law at the University of Pittsburg, writes this in the June 1991 edition of the Georgetown Law Journal (.79 Geo. L.J. 1499). Hat Tip: Shawn Borich.

From the late 1950s through the early 1970s the Court decided cases that, both in result and in rhetoric, expressed a new respect for the poor. Justice William Brennan, writing for the majority in Goldberg v. Kelly, expressed this new vision of the constitutional status of poverty.

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. . . . 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. . . . Public assistance, then, is not mere charity, but a means to “promote the general Welfare, and secure the Blessings of Liberty to ourselves and to our Posterity.”

Thus, the Court held in Goldberg that welfare benefits were a form of constitutionally protected “property” and could not be terminated without notice and the opportunity for a hearing. The Court’s decisions during this period that broke down some of the disparities in effective access to the courts on both criminal and civil matters are further evidence of the Warren Court’s new respect for the poor.

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4 thoughts on “Welfare as a Property Right

  1. Espy says:

    There seems to be an internal contradiction in this statement: “From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”

    Conclusive statements such as these do not correlate with the reality surrounding the creation of the Constitution nor with a commitment to foster dignity. The Constitution was penned by men with similiar monied interests and did not even include a Bill Of Rights until a few years later. The Bill Of Rights appears to be a concessionary arrangement in order to garner support for the rest of a document, that on its face, has held up the succession of the same monied interests for two-hundred plus years. Nor did the poor (of any color) have access to the voting booth or representation unless they owned a sufficient amount of property ensuring that the richest land-owners in the colonies would control the legislative process. The first so-called Chief Justice of the Supreme Court John Jay declared: “The people who own the country ought to govern it.” And it seems to be no coincidence that Adam Smith’s Wealth Of Nations appeared in 1776 right around the time the American plutocracy were clamoring for ways to protect their wealth from the British monarchy (who had recently declared slavery unlawful and seemed geared to impose the effects of the decision on all of its colonies) as he wrote:

    “Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.”

    Looking at the handful of banks and multinational corporations that control the flow of money and infrastructure in today’s “America” it seems apparent whose interests are preserved at the plight of millions of others. It seems it is that way not because of the so-called government’s lack of preserving the rights of its subjects, but rather because government was set up to protect the founding American plutocracy and continues to do so today. It seems a bit disingenous to say that “forces” outside of the control of the poor contribute to their poverty when that force more than likely is licensed by the very government so-called that cultivate the kinds of social and economic conditions that support increasing disparity and homelessness. I believe it was Benjamin Franklin on traveling to England in the late 1700s who was shocked at the homeless on the streets of London, a place whose Rothschild devised economic policy the colonies would later adopt as they outlawed local currencies, Colonial script and the like, centralizing authority and putting a monolopy on money creation making it difficult for competing economic systems based on voluntary associations. Some saw increased homelessness as a result of the newly centralized government but whether that is true others may decide for themselves.

    As far as “welfare” being defined as constitutionally protected property, I have a difficult time understanding whose property is in question. Welfare does not arise from the ingenuity or production of the poor. It does not even arise from the production of any other class of citizen. Any insistence that taxes pay for welfare are a bit hard to ascertain as the Grace Commission concluded that federal taxes collected were consumed by the interest on the national debt alone. How can intangible assets that are simply electronic creations of debt be considered property? Who is ultimately responsible for the debt to provide for the “welfare” of the poor if the poor cannot create its own affluency? Is it the working class or the middle class who have a good portion of their wealth eroded through excessive taxation to guarantee the constant expansion of the debt? And if so, doesn’t that violate property rights rather than uphold them if one class is forced through the chicanery of a few men backed by monolopy of threat and force to relinquish the fruits of their labor to another class that they have no intention of financing? Wouldn’t it make more sense for all of the individuals who believe that the poor should be assisted to pool their own resources and aid the poor, instead of using what appears to be democratic tyranny to impose on others a obligation to aid the poor they may or may not have no intention on helping?

    Lastly, it seems that far too much import is put on judicial opinions. One man interprets a line to mean one thing or a small group of men interpret a line to mean one thing or to expand its power and that decision becomes binding upon millions of people who may or may not support personal wealth confiscation or have any desire to be altruistic, which they need not be. To set up a court whose decisions are above reproof seems nothing less than a judicial dictatorship able to decide matters for millions of people who may or may not consent. It seems absurd to hold the courts in high regard when throughout the history of this nation state many “laws” have been on the books that are objectionable. And with millions of new pages of legalese as the years reel, there are more objectionable “laws” than ever on the books but it would impossible and a waste of time to research them all. And the “general welfare” like all other similar expressions, “public good”, “national security,” etc. are such vacuous expressions as to be open for use in depriving millions of individuals of “rights” the so-called Constitution was instituted allegedly to recognize and protect. The idea of “welfare” appears to be a violation of those “rights” as it can only be provided at the expense of others whose labor produces the monetary property or moreso the guarantee through their labor for the increasing of the debt to continue to operate a welfare system that only has a handful of successes as opposed to the legion of people it has crippled, most likely because of the intrinsic impersonality of its character.

    That is not to say that goverment so-called should not be in the business of providing assistance but that assistance should be on a voluntary basis by those who wish to be altruistic. When public assistance is upheld through the threat of fine and/or imprisonment, and legitimized by judicial decrees that cannot be amended by the people they are imposed upon, it seems that the American form of democracy is no better than any other.


  2. Ian McKnight says:

    Eapen, what was the point of posting this? You clearly have nothing to contribute to the scholarly dialogue about this widely known case. Even the excerpt you’ve posted is merely explanatory—one could find the same summary on Wikipedia.

    Are you trying to advertise that you know about the case? If so, that’s not particularly impressive in and of itself. After all, every law student that’s taken a class on administrative law or the 14th amendment learns it.

    If you had the analytical ability to dissect this case and teach us something new, that would be one thing. But you clearly don’t…

  3. Eapen Thampy says:

    Ian, it’s clear I’m posting a law review excerpt because I thought the argument was interesting even if I didn’t have time to contribute to the scholarly debate. If you are looking for a summary, try wikipedia like you suggested. It is common practice in the legal blogosphere to post excerpts of cases or articles without analysis since the point of a blog post can be vastly different from the point of wikipedia or a law review.

    I don’t think your conclusion that I don’t have the analytical ability to analyze this case follows from anything you’ve said. Who are you? Go read another blog.

  4. Ian McKnight says:

    Great, then I’ve got a blog you might be interested in. On it, I’ve just copied and pasted some Wikipedia summaries of Marbury v. Madison, Plessy v. Ferguson, Brown v. Board of Education and Roe v. Wade.

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