(DIS)ENTITLING THE POOR: THE WARREN COURT, WELFARE RIGHTS AND THE AMERICAN POLITICAL TRADITION, by Elizabeth Bussiere. University Park, PA: The Pennsylvania State University Press, 1997. 169 pp.
Reviewed by Kathleen M. Hale, J.D., Department of Political Science, Kent State University.
In (DIS)ENTITLING THE POOR: THE WARREN COURT, WELFARE RIGHTS AND THE AMERICAN POLITICAL TRADITION, Elizabeth Bussiere combines legal analysis with historical and political dynamics to interpret the current position of the Supreme Court on welfare rights. Bussiere examines the failed notion of a constitutional right to welfare, with a focus on the importance of legal doctrine and the neglected role of the judiciary in shaping the welfare policy debate. She presents a detailed account of key Warren Court decisions, against the historical and political context of the Jacksonian and New Deal eras. Particular strengths of the work include exposition of the roles of natural law and maternalism doctrines in welfare policy development, and demonstration of the centrality of legal institutions within the policy process. (DIS)ENTITLING THE POOR: THE WARREN COURT, WELFARE RIGHTS AND THE AMERICAN POLITICAL TRADITION, provides a cogent explanation of the development of contemporary welfare policy that incorporates alternative theoretical perspectives across history. The work enhances our understanding of legal institutionalism in the development of public policy, and is a valuable addition to welfare policy literature.
The central theme of (DIS)ENTITLING THE POOR: THE WARREN COURT, WELFARE RIGHTS AND THE AMERICAN POLITICAL TRADITION is that the Supreme Courtís refusal to "constitutionalize" a right to welfare was not inevitable, but rather resulted from a confluence of specific judicial precedents, politics and constitutional philosophy in the Warren Court. Although the Warren Court is noted for its expansive approach to constitutional rights and personal liberties, Bussiere successfully illustrates that any extension of these rights and liberties to the poor has been primarily procedural.
The historic foundations for an alternative Supreme Court construction recognizing constitutional right to welfare are established in Chapters 2 and 3. Bussiere employs the natural rights and civic republicanism theories embodied in the Jacksonian era artisansí movement to illustrate the tension between property rights and human needs. She compares the Workingmenís and master artisansí movements of the early 1800s to effectively demonstrate the practical manifestations of the traditions of subsistence rights against the developing economic theories of Adam Smith. The social and historic aspects of this tension are expanded in the context of the maternalist movement for motherís pensions. The work of progressive reformers such as Jane Addams and others highlight the creation of a newly public role in which motherhood is cast, and the emergence of a dichotomy between motherhood and work (pp. 50-57). Bussiere also traces the evolution of professional forms of maternalism including the philosophical underpinnings manifest in critical agencies such as the Childrenís Bureau. She establishes this context as a basis for understanding gender conflicts inherent in the welfare rights debates which emerged in the 1960s and 1970s.
Bussiere also traces the development of the bureaucracy of welfare, and illustrates the manner in which majoritarian ideologies fostered conceptions of the deserving and undeserving poor, and increasingly cast young and minority mothers in the category of the undeserving. Considerable attention is given to the New Deal as the cornerstone of welfare in the United States (p. 71), and to the evolution of the Social Security Act of 1935. The central roles of key government agencies and advisory groups are detailed, including the Federal Emergency and Relief Agency and the Committee on Economic Security. The primary actors and political contexts for each group are explored against the policies adopted by the newly created Social Security Administration and the crafting of Aid for Dependent Children. Bussiere thus illustrates the political influence of agencies in formulating welfare policy design and implementation strategies, which reflected fundamental political calculations about federalism and fundamental assumptions of gender inequality.
Against this backdrop, Bussiere devotes Chapters 4 through 7 to an analysis of the legal foundations which today work to deny the existence of a constitutional right to welfare. These chapters trace the development of substantive and procedural due process and the application of equal protection under the Fourteenth Amendment from the New Deal era through the Warren Court. The eventual rejection of a natural law doctrine in the Warren years is tied squarely to the Supreme Courtís earlier analysis of natural law during the Lochner era; in Lochner and its progeny the Court routinely upheld economic rights and corporate interests under the Fourteenth Amendment in support of a "liberty of contract." The death of the natural law doctrine is also given a significant political dimension through examination of Rooseveltís court-packing tactics and expansion of executive powers under New Deal legislation. This demise of a viable interpretation of natural law or positive rights was welcomed at the time as a means of securing essential economic freedom for state and corporate interests. Bussiere demonstrates, however, that this line of court interpretation effectively constrained other interpretations of the Constitution which could have served to advance substantive welfare rights; thus, notions of equal protection which developed against this framework focused on individual and procedural rights, rather than on a "right to exist".
In explicating the dynamics of landmark Warren Court decisions. Bussiere devotes considerable attention to the strategic decisions of organizations devoted to the preservation of welfare rights. She focuses on the legal reasoning employed by the Legal Services Program, the Center on Social Welfare Policy and Law, and the National Welfare Rights Organization, in the challenge to establish a constitutional right to welfare under the Fourteenth Amendment. The effort to craft a strategy to advance a "right to live" under the notion of equal protection of the law is frustrated in part by the tension within some welfare rights groups, which argued that maternalist values required essentially different treatment under the law for mothers and children. Her description of the legal and political tradeoffs which National Welfare Rights Organization counsel Edward Sparer and others encountered in their efforts at case selection and presentation is both informative and accessible.
Bussiere ably illustrates the salience of the Warren Court analysis in the contemporary judicial interpretation of welfare policy through the Supreme Court decision in case of DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). In DeShaney, the Rhenquist Court again rejected the notion of a positive right to liberty in a case involving state liability for the severe beating of a four-year old child by his father which left the child profoundly mentally retarded and requiring institutional care (pp. 1, 167-168). Although the father had been the subject of state agency investigations for child abuse, the child was not deemed to have a positive right to remain alive, and the agency was not obligated to act a "guarantor of individual safety" for the child (p. 3.). Consistent with the carefully crafted procedural safeguards championed by the Warren Court, the construction of the Fourteenth Amendment was again reinforced as limiting state action, but rejected as imposing any affirmative obligation upon states. As the facts of DeShaney illustrates, the implications of this strain of judicial policy in a pluralist setting are clear for dependent constituencies.
Throughout this work, Bussiere illustrates the complexity of welfare rights issues as inseparable from historical context, from political calculation, and from the impact of legal doctrine. Her analysis is particularly informative to a contemporary understanding of welfare policy in the United States, as questions of entitlement and procedure continue with the passage of national welfare reform legislation in 1996. States struggle to address these fundamental issues within the context of that legislation, which places greater discretion for welfare policy design and implementation at the local level. Further, welfare policy delivery is increasingly accomplished through complex intergovernmental networks involving private for-profit and non-profit representatives along with government agencies. As welfare reform unfolds more fully across the states, judicial interpretation will continue to define the rights and responsibilities of states and local governments with respect to welfare recipients. Judicial interpretation will also begin to establish the comparative obligations among public, private and non-profit service providers, to address questions of responsibility for service design, program effectiveness, and accountability.
In (DIS)ENTITLING THE POOR: THE WARREN COURT, WELFARE RIGHTS AND THE AMERICAN POLITICAL TRADITION, Bussiere
clearly advances the centrality of legal doctrine and the important role of the judiciary in shaping the welfare
policy debate. In examining the current posture of the Supreme Court, she also makes a compelling case for a broad
reconsideration of competing philosophies previously rejected by the Court. Her book is accessible across a wide
range of legal, social welfare, and policy scholarship, and provides a rich contextual framework against which
to understand, explain, and perhaps predict further developments in these arenas.