CROSS The Error of Positive Rights 48UCLALRev857

Citation: 48 UCLA L. Rev.
857 2000-2001
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THE ERROR OF POSITIVE RIGHTS
Frank B. Cross
Calls for recognition of constitutional positive rights to public assistance
have persisted over the years, but this Article suggests that such recognition
would be unwise. After establishing that positive rights can indeed be logically
distinguished from the traditional negative rights generally found in the Constitu-
tion, Professor Frank Cross explains why the recognition of positive rights would
be ineffective, given the economic and political realities of rights enforcement.
The ineffectiveness of positive rights is generally confirmed by the empirical
evidence. Should positive rights be given effect, there is a serious chance that judi-
cial intervention and enforcement of them could actually have counterproductive
effects.
IN TRO DU CTIO N ............................................................................................................. 858
1. ARE SOME RIGHTS DISTINGUISHABLY POSITIVE? .................................................. 863
A. The Theoretical Distinction Between Positive
and N egative R ights ...................................................................................... 864
B. The Bill of Rights as Essentially Negative in Nature .................................... 868
C. Critiques of the Distinction Between Negative
and Positive R ights ....................................................................................... 874
II. PROBLEMS WITH POSITIVE RIGHTS ........................................................................ 878
A. The Economics of Rights Enforcement ......................................................... 880
B. The Politics of Rights Enforcement .............................................................. 887
III. THE EVIDENCE ON POSITIVE RIGHTS ..................................................................... 893
IV. THE POTENTIAL CONSEQUENCES OF POSITIVE RIGHTS ......................................... 900
A. The Substantial Indeterminacy of Positive Rights ........................................ 901
B. Judicial Enforcement of Such Indeterminate Rights ..................................... 902
1. Sincere Enforcem ent .............................................................................. 903
2. R ealist Enforcem ent ............................................................................... 905
C. Intriguing Consequences of Indeterminate Rights ........................................ 909
1. The Conservative Judiciary Scenario .................................................... 910
2. The Liberal Judiciary Scenario ............................................................... 913
D. Assessing the Probable Consequences
of Positive R ights ........................................................................................... 920
C O N C LU SIO N ................................................................................................................ 923
* Herbert D. Kelleher Centennial Professor of Business Law, University of Texas at
Austin; Professor of Law, University of Texas Law School.
HeinOnline -- 48 UCLA L. Rev. 857 2000-2001
858 48 UCLA LAW REVIEW 857 (2001)
INTRODUCTION
The notion of legal "positive rights" to government assistance has
recurred throughout recent history and currently seems to be gaining popu-
larity. Supporters urge that the U.S. Constitution explicitly recognizes
a right to a minimally adequate material standard of living, a clean envi-
ronment, or other conditions that require affirmative government action.
The concept is appealing in some contexts, but reliance on positive
constitutional rights is an ultimately misguided plan. The strongest claim
that positive rights are an error does not rest upon moral philosophy but
relies upon a pragmatic understanding of the operation of government, par-
ticularly the judicial system.
The case for positive rights became pronounced during the Great
Depression, as President Franklin D. Roosevelt coupled his "freedom ofs"
with "freedom froms" that implied government action. FDR proposed a
second Bill of Rights that included the "right to earn enough to provide
adequate food and clothing and recreation," the "right to adequate medical
care and the opportunity to achieve and enjoy good health," and other posi-
tive rights.' He argued that "true individual freedom cannot exist without
economic security and independence."
2
The new Bill of Rights never mate-
rialized, although government statutory programs increasingly provided
assistance for the nation's needy.
The case for positive legal rights became even more pronounced in the
1960s.
3
This development was sociologically unsurprising, as that decade
saw a growing appreciation of the limits of purely private ordering (whether
in the persistent existence of poverty, racism, or environmental degradation).
The decade also brought considerable growth in the welfare state, which
reflected a belief that government intervention in the market to correct
social problems was appropriate and desirable. Moreover, the interests pro-
tected by positive rights (such as a living income or health care) seemed at
least as important as some of the interests protected by generally accepted
1. Franklin D. Roosevelt, Eleventh Annual Message (Jan. 11, 1944), reprinted in 3 THE
STATE OF THE UNION MESSAGES OF THE PRESIDENTS 1790-1966, at 2875, 2881 (Fred L. Israel
ed. 1966).
2. Id.
3. See, e.g., Albert M. Bendich, Privacy, Poverty, and the Constitution, 54 CAL. L. REV.
407 (1966) (arguing that due process requires the duty to provide minimally for citizens);
Archibald Cox, The Supreme Court, 1965 Term-Foreword: Constitutional Adjudication and the
Promotion of Human Rights, 80 HARV. L. REV. 91 (1966) (finding positive rights in the Due
Process Clause); Arthur Selwyn Miller, Toward a Concept of Constitutional Duty, 1968 SUP. CT.
REV. 199 (contending that the overall structure of the federal Constitution implies positive
rights); Charles A. Reich, Individual Rights and Social Welfare: The Emerging Social Issues, 74 YALE
L.J. 1245 (1965); Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964).
The Error of Positive Rights 859
negative rights (such as the right to be free from the quartering of troops in
your home). In a Maslovian hierarchy, basic sustenance is primary to speech
or religion.
4
Indeed, minimum welfare may be a prerequisite to the realistic
meaningfulness of the rights guaranteed by the Constitution.
5
Justice Ruth
Bader Ginsburg has criticized our Constitution as "very skimpy," because it
failed to guarantee rights such as housing and health care.
6
The political appeal of positive rights, even in the 1960s, has failed to
find its way into judicial interpretations of the Bill of Rights. Some thought
that Goldberg v. Kelly,
7
decided at the end of that decade, foreshadowed the
courts' recognition of positive rights. However, that anticipation went
unfulfilled, though supporters continue to abound.' Frank Michelman
prominently took up the cause throughout the 1970s.
9
Stephen Holmes and
Cass Sunstein recently devoted much of a book to the position.'" A number
of prominent law reviews dedicated lengthy pieces to the topic." While
4. See ABRAHAM H. MASLOW, MOTIVATION AND PERSONALITY 35-46 (2d ed. 1970)
(regarding primacy of physiological needs).
5. See, e.g., Sotirios A. Barber, Welfare and the Instrumental Constitution, 42 AM. J. JURIS.
159, 160 (1997) (noting that some argue that a right to subsistence, employment, or education is a
prerequisite "to the meaningful exercise of rights like speech and voting"); Peter B. Edelman, The
Next Century of Our Constitution: Rethinking Our Duty to the Poor, 39 HASTINGS L.J. 1, 19-28
(1987) (arguing that subsistence is a prerequisite to the exercise of other rights); Lawrence Sager,
The Domain of Constitutional Justice, in CONSTITUTIONALISM 235, 256 (Larry Alexander ed.,
1998) (observing that to be "locked in grinding poverty is an awful form of human existence" that
renders the "promise of equal membership, fair and open government and independence. . . empty
and meaningless").
6. Peter Shinkle, Justice Ginsburg: Constitution "Skimpy," BATON ROUGE ADVOC., Oct.
25, 1996, at 1B (quoting Justice Ruth Bader Ginsburg's speech at the Louisiana State University
Paul M. Herbert Law Center).
7. 397 U.S. 254 (1970). The U.S. Supreme Court in Goldberg held, in passing, that
"[p]ublic assistance" is "not mere charity, but a means to 'promote the general [welfare, and secure
the [b]lessings of [Iliberty to ourselves and our [plosterity."' Id. at 265.
8. See, e.g., Kaaryn Gfstafson, Book Review, 42 AM. J. LEGAL HIST. 215, 215 (1998)
(reviewing ELIZABETH BUSSIERE, (DIS)ENTITLING THE POOR: THE WARREN COURT, WELFARE
RIGHTS, AND THE AMERICAN POLITICAL TRADITION (1997)) (noting that "by the mid-1960s,
there was reason to believe that the Supreme Court might find a right to subsistence, might
recognize the government's affirmative obligation to the poor," but that the Warren Court did not
take this step).
9. See Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls'
Theory of Justice, 121 U. PA. L. REV. 962 (1973); Frank I. Michelman, States' Rights and States'
Roles: Permutations of "Sovereignty" in National League of Cities v. Usery, 86 YALE L.J. 1165
(1977); Frank 1. Michelman, The Supreme Court, 1968 Term-Foreword: On Protecting the Poor
Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969); Frank I. Michelman, Welfare
Rights in a Constitutional Democracy, 1979 WASH. U. L.Q. 659 [hereinafter Michelman, Welfare
Rights].
10. See STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS (1999).
11. See, e.g., Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271
(1990); Susan H. Bitensky, Theoretical Foundations for a Right to Education Under the U.S.
Constitution: A Beginning to the End of the National Education Crisis, 86 NW. U. L. REV. 550 (1992);
there is no apparent societal move toward recognizing positive constitu-
tional rights, law reviews seem overwhelmingly in favor of such recogni-
tion.
2
As this Article shows, much of this discussion is na'fve and ignores
crucial questions about the implementation of such positive rights.
Before any analysis, a definitional issue must be addressed. By "right," I
mean a constitutionally recognized, judicially enforceable restraint on
popular government. This definition might seem cramped, because we often
speak casually of rights that might not be judicially enforceable, such as
natural rights of one sort or another. This definition does not rig the
debate, though, because most of the advocates of positive rights are con-
templating something similar.'
3
Eliminating judicial enforcement would
Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA.
L. REV. 1293 (1984); Stephen Loffredo, Poverty, Democracy and Constitutional Law, 141 U. PA. L.
REV. 1277 (1993).
A slightly different take is offered in Helen Hershkoff, Positive Rights and State Constitutions:
The Limits of Federal Rationality Review, 112 HARV. L. REV. 1131 (1999). Professor Helen Hershkoff
clearly favors judicial enforcement of positive rights. Her case for such recognition is based in part
on characteristics of state government institutions that would not necessarily transfer to positive
rights in the federal Constitution. See id. at 1155-57.
12. See, e.g., Hershkoff, supra note 11, at 1133 n.9. Her summary of the literature lists
seventeen articles making the case for recognition of positive rights and five articles to the contrary.
Her list of articles favoring positive rights, however, is only partial and omits many additional
articles to this effect.
13. Stephen Holmes and Cass Sunstein suggest that an "interest qualifies as a right when
an effective legal system treats it as such by using collective resources to defend it." HOLMES &
SUNSTEIN, supra note 10, at 17. This definition seems too broad. The government uses considerable
collective resources to provide assistance to the poor, but one does not speak of the poor having a
"right" to these resources, at least not a constitutional right. While correctly noting that rights
are not the absolute trumps that they are sometimes portrayed to be, the authors note the
difference between an "interest" and a "judicially enforceable right." Id. at 124. Rights, to truly
be legal rights, must be judicially enforceable. See Michael Mandel, Against Constitutional Law
(Populist or Otherwise), 34 U. RICH. L. REV. 443, 452 (2000) (referring to the "main problem" of
social rights in other constitutions as their relegation to a status as "second-class, completely
unenforceable rights"); Antonio Carlos Pereira-Menaut, Against Positive Rights, 22 VAL. U. L.
REV. 359, 370 (1988) (arguing that "[ilf a claim, reasonable though it may be, cannot be defined
in a court of law.., then it is not a real right").
Susan Bandes, in her defense of recognition of positive rights, urges that they should be
defended by the judiciary and not left entirely to legislative or executive action. See Bandes, supra
note 11, at 2329. Hershkoff's article is a lengthy criticism of the reluctance of state court judges to
enforce positive rights more vigorously. See Hershkoff, supra note 11. Peter Edelman argues that
the failures of the legislative branch compel judicial involvement in enforcing positive rights. See
Edelman, supra note 5, at 28-54. William Forbath takes Cass Sunstein to task for supporting
positive rights but rejecting judicial enforcement. See William E. Forbath, Why Is This Rights Talk
Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN.
L. REV. 1771 (1994). Once a right is recognized as a constitutional one, there is "a presumption
in favor of [its] judicial enforceability." LAURENCE H. TRIBE, CONSTITUTIONAL CHOICES I 11
(1985). The traditional doctrine of separation of powers "counsels generically that all constitutional
rights deserve judicial enforcement." Jonathan Feldman, Separation of Powers and Judicial Review of
Positive Rights Claims: The Role of State Courts in an Era of Positive Government, 24 RUTGERS L.J.
860 48 UCLA LAW REVIEW 85 7 (200 1)
considerably water down their proposals for recognition of positive rights.
Therefore, the discussion only concerns constitutional positive rights,
because the proponents of positive rights also speak in those terms.
The notion of positive statutory rights is utterly unexceptionable.
14
There is an indisputable statutory right to receive payments under the Earned
Income Tax Credit, for example, assuming one meets the statutory conditions
and at least until its statutory authority is revoked."
5
The proponents of
positive rights argue for something more, a right of constitutional magnitude
that compels the legislature to create and implement programs such as the
Earned Income Tax Credit.'
6
1057, 1061 (1993). At least this is true in the culture of the United States. See Mac Darrow &
Philip Alston, Bills of Rights in Comparative Perspective, in PROMOTING HUMAN RIGHTS
THROUGH BILLS OF RIGHTS 465, 467 (Philip Alston ed., 1999) (noting the suggestion that
"judicial review of a human rights framework is now the 'prime component of constitutionalism');
Mary Ann Glendon, Rights in Twentieth-Century Constitutions, 59 U. CHI. L. REV. 519, 532-34
(1992) (suggesting that in this country, constitutional rights are not merely aspirational but
contemplate judicial enforcement); Craig Scott & Patrick Macklem, Constitutional Ropes of Sand
or Judiciable Guarantees? Social Rights in a New South African Constitution, 141 U. PA. L. REV. 1,
39-40 (1992) (arguing that justiciability is essential for positive rights to be effective).
Some proponents of positive rights do not argue for judicial enforcement. See, e.g., Kenneth
L. Karst, The Coming Crisis of Work in Constitutional Perspective, 82 CORNELL L. REV. 523 (1997)
(arguing for a judicially unenforceable right of access to work); Sager, supra note 5, at 242
(distinguishing between the Constitution and its judicial enforcement). Cass Sunstein seems to
believe in some sort of positive right to minimal subsistence but rejects judicial enforcement. See
CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 138-39 (1993) (describing the. right but
maintaining that "courts are not to guarantee this form of liberty"). Frank Michelman seems to have
evolved his position to fit into this camp of nonenforceable positive rights. See Frank I.
Michelman, What (If Anything) Is Progressive-Liberal Democratic Constitutionalism, 4 WIDENER L.
SYMP. J. 181, 199 (1999) (suggesting the virtues of extrajudicial constitutional enforcement, though
not entirely disclaiming the possibility of judicial enforcement); Mark A. Graber, The Clintonification
of American Law: Abortion, Welfare and Liberal Constitutional Theory, 58 OHIO ST. L.J. 731, 757
(1997) (discussing Michelman's position);
The creation of judicially unenforceable positive rights may seem like meaningless symbolic
action or "toothless political aspirations." Matthew Diller, Poverty Lawyering in the Golden Age, 93
MICH. L. REV. 1401, 1428 (1995). Such aspirational rights would seem to be aimed more at the
consciences or feelings of liberal law professors than the welfare of the poor. The creation of such
rights creates ancillary risks, as Sunstein notes, that "[i]f positive rights are not enforceable, the
constitution itself may seem like a mere piece of paper; there could be adverse consequences for
other rights as well." Cass R. Sunstein, Against Positive Rights, in WESTERN RIGHTS? POST-
COMMUNIST APPLICATION 225, 229 (Andras Sajo ed., 1996). It has been suggested that the
more positive rights in the Constitution, "the less enforceable those rights and, sometimes, all
rights." Wiktor Osiatynski, Social and Economic Rights in a New Constitution for Poland, in WESTERN
RIGHTS? POST-COMMUNIST APPLICATION, supra, at 233, 233.
14. See DAVID KELLEY, A LIFE OF ONE'S OWN 17-19 (1998) (discussing important distinc-
tions between statutory and constitutional welfare rights).
15. See Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (holding that welfare benefits "are a
matter of statutory entitlement for persons qualified to receive them").
16. See, e.g., Michelman, Welfare Rights, supra note 9, at 660 (declaring that he is
"speaking not just of legal but, more specifically, of constitutional rights"); Pereira-Menaut, supra
862 48 UCLA LAw REVIEW 857 (2001)
With this definitional context in mind, here are the arguments. In
Part I, I consider whether a distinguishably positive right even exists. Some
prominent authors argue that positive and negative rights cannot be theoreti-
cally distinguished-a position that functionally delegitimizes any attempt
to rule out the recognition of positive rights. This part demonstrates that
negative rights can in fact be theoretically distinguished from positive ones
and that our Constitution currently provides only negative rights, with some
narrow exceptions.
Part II includes a discussion of the two significant problems with relying
on the courts to enforce positive rights and to promote the interests of the
poor. The first problem involves the economics of rights enforcement.
Advancing an agenda through litigation is not a simple or an inexpensive
endeavor. Rather, it requires considerable resources and expertise, and the pro-
cess disadvantages the very impoverished groups that positive rights are
meant to protect. Hence, reliance on the judicial process to promote positive
rights is an unpromising strategy. The second problem is the politics of rights
enforcement. While we espouse an independent judiciary in this nation, the
reality is that courts are loathe to displease the elected branches or to tread
upon their constitutional turf. An order requiring those branches to fund
and to offer economic assistance to the poor is the sort of action that the
judiciary is unlikely to make or to enforce.
Part III examines the practical effect of recognizing positive rights in a
constitution. Several state constitutions provide for such rights. The positive
rights recognized by states have not been enforced much by their judiciaries,
however. Moreover, the actual data on poverty rates and public assistance
programs show no effect of positive rights upon the welfare of the poor.
Thus, it appears that economic and political barriers, such as those I have
discussed, prevent positive rights from being actualized effectively. This
conclusion is reinforced by the international evidence regarding positive
rights and even by our historic experience under the national Constitution.
Part IV addresses the ramifications of positive rights that have been
vigorously enforced."
7
If the rights were implemented by a relatively conser-
vative judiciary, such as the current one, the results could be highly contrary
note 13, at 369 (noting that "supporters of positive rights are not usually content with having
these rights recognized at a statutory level because this would imply leaving them to the free
decisi6n of changing legislative majorities").
17. Implications should be considered before recognizing rights. See, e.g., Alex Kozinski &
Eugene Volokh, A Penumbra Too Far, 106 HARV. L. REV. 1639, 1639 (1993) (arguing that before
recognizing the principle, "there are some hard questions that we must ask: Why is the new doctrine
superior to the existing doctrine, or to others we can come up with? Will it be judicially manageable?
How will it transfigure the legal landscape, and what might be some of its unintended
consequences ?").
863
to the desires of the proponents of positive rights. Such a judiciary has
ample tools to take such rights and to use them to restore the aggressive
antigovernment posture of the Lochner era, striking down a variety of
government programs, including those aimed at benefiting the poor. A lib-
eral judiciary would offer more promise in the implementation of a positive
right, but then would face serious barriers to its ultimate success and present
the possibility of a counterproductive backlash against welfare programs in
general. Given an assessment of the probabilities and the consequences,
positive rights offer a poor bargain for the disadvantaged.
I. ARE SOME RIGHTS DISTINGUISHABLY POSITIVE?
The classical distinction between negative and positive rights is asso-
ciated with Isaiah Berlin, who famously distinguished between negative and
positive liberty.
8
Berlin's distinction, however, differs from the current
controversy about positive rights to government support. By negative lib-
erty, Berlin meant the right to be left alone, much as negative freedom
is currently conceived. By positive liberty, though, he meant the right to
self-determination.'
9
A positive liberty, for Berlin, was something like the
right to vote.
2
0 He worried that positive liberties could undermine negative
liberties. He might have contemplated that positive liberties would recog-
nize something like a positive right to a minimum income, but this possibil-
ity was not critical to his distinction.
We today have a democratic system of positive liberty that is subject to
certain negative liberty restraints, such as those found in the provisions of
the Bill of Rights. There is no general right of negative liberty, to be left
alone, beyond those constitutional constraints. Nothing in our system pre-
vents the people from exercising their positive liberty of self-determination
to provide for statutory positive rights, such as minimally adequate material
standards of living. The proponents of positive freedom would go much fur-
ther, though, and create positive rights as a condition on the democratic
exercise of positive liberty. In their view, the political branches would no
longer be free not to support certain relief programs. On its face, this
appears to be a revolutionary change in approach. But the advocates of
positive freedom challenge the very distinction between negative rights (to
18. See ISAIAH BERLIN, TWO CONCEPTS OF LIBERTY (1958).
19. See, e.g., Marshall Cohen, Berlin and the Liberal Tradition, 10 PHIL. Q. 216 (1960)
(criticizing Isaiah Berlin's claimed inconsistency between negative and positive liberty of self-
determination).
20. For a review of Berlin's distinction, see H.J. McCloskey, A Critique of the Ideals of
Liberty, 74 MIND 483, 483-84 (1965).
The Error of Positive Rights
864 48 UCLA LAW REVIEW 857 (2001)
be left alone) and positive rights (to government assistance). In this context,
the creation of constitutional positive rights is not so radical. As it turns
out, there still is an important theoretical distinction to be drawn between
positive and negative rights.
A. The Theoretical Distinction Between Positive and Negative Rights
The distinction between positive and negative rights is an intuitive
one. One category is a right to be free from government, while the other is
a right to command government action. A "positive right is a claim to
something.., while a negative right is a right that something not be done
to one."
2
' This generally sensed intuition surely indicates that the distinction
exists. If a given right can readily be categorized by consensus as positive or
negative by all or nearly all concerned, isn't that evidence that the clear
distinction must exist? Even those who challenge the distinguishability of
positive and negative rights do not seem to have much difficulty charac-
terizing specific rights as one or the other;" popular and legal commentaries
seem to have no difficulty at all finding the distinction.
23
But perhaps the
perceived distinction is an artificial one, a perception without logical
theoretical basis. Many "liberal constitutional theorists maintain that the
distinction between positive and negative constitutional rights is 'mistaken'
or 'unhelpful."'
24
For others, the distinction is just "too simplistic- to be
helpful."
25
Holmes and Sunstein argue that all rights must be positive, because
they all depend on an agent of government for their enforcement.
26
Sup-
pose the police invade a newsroom and prohibit publication of an article at
gunpoint. The newspaper's first amendment freedom requires the action of
a court or another government agency for its protection from the police
action and protection of the ability to publish. Positive government action
21. CHARLES FRIED, RIGHT AND WRONG 110 (1978); see also Osiatynski, supra note 13, at
233 (declaring that "[slocial and economic rights differ from civil liberties and political rights in
that they call for positive action by the state to provide some citizens but not others with goods
and services").
22. See, e.g., Sunstein, supra note 13, at 225. In that essay, Sunstein questions the traditional
distinction between positive and negative tights but proceeds to use it "for ease of exposition." Id.
at 225-26.
23. See HOLMES & SUNSTEIN, supra note 10, at 39 (observing that in "classrooms and on
editorial pages, in judicial opinions and before congressional committees, a distinction is routinely
drawn between negative rights and positive rights").
24. Graber, supra note 13, at 762.
25. Darrow & Alston, supra note 13, at 506.
26. See HOLMES & SUNSTEIN, supra note 10, at 43 (contending that "all legally enforced
rights are necessarily positive rights").
may be necessary to effectuate freedom of speech. Susan Bandes argues that
"all decisions impose affirmative duties of enforcement."
27
This argument,
though, is too facile.
28
The notion of a legal right necessarily implies law,
which implies government enforcement. The claim that legal rights require
legal enforcement is tautological and does not automatically render all
rights positive. One might accurately say, as Holmes and Sunstein do, that
all rights, including negative ones, require government enforcement, but
this does not mean that we cannot distinguish among types of rights.
Richard Posner makes an argument similar to that of Holmes and
Sunstein. He observes that rights, such as that of property, "imply a public
machinery of rights protection and enforcement."
29
He then concedes that
the associated "implied right to government protection" is "usually" not
legally enforceable." However, he urges, "without it the negative liberties
may have little practical significance."'" It is unclear what the antecedent is
for Posner's "it." But it is clear that negative rights can and do have consider-
able "practical significance" even without a legally enforceable right to their
enforcement. While government enforcement may be essential to negative
rights, no right to government enforcement is necessary. The effectiveness
of the negative right does not depend on a positive right, because enforce-
ment will follow due to extralegal considerations. No such formal legal right
of enforcement is required-society has considerable incentive to provide
for such enforcement of property rights. The negative right is diminished
without positive government action but does not therefore require a positive
legal right to be effective. The negative legal right does not imply a corre-
sponding positive legal right to enforcement and this does not render the
negative legal right nugatory. Posner himself seems to have no difficulty dis-
tinguishing between the negative and the positive aspects of such a right.
Gerald MacCallum wrote the classic philosophical discussion of positive
and negative rights.
32
While MacCallum argued that there was no useful
distinction between positive and negative rights as an abstract, theoretical
matter, his discussion demonstrates the pragmatic difference that I propound.
He contended that all rights issues fit a triadic relationship: "x is (is not)
free from y to do (not do, become, not become) z."" In this schema, X is the
27. Bandes, supra note 11, at 2312 n.213.
28. Holmes and Sunstein concede that this is an obvious truth. See HOLMES & SUNSTEIN,
supra note 10, at 145.
29. Richard A. Posner, The Cost of Rights: Implications for Central and Eastern Europe-and
for the United States, 32 TuLSA L.J. 1, 3 (1996).
30. Id.
31. Id.
32. See Gerald C. MacCallum, Jr., Negative and Positive Freedom, 76 PHIL. REV. 312 (1967).
33. Id. at 314.
subject actor and can be a person, corporation, or other entity. Y is whatever
prevents action and can be government, another person, or general societal
conditions." Z is the subject action. A classic negative right would be pre-
sented as a person (X) being free from government prior restraint (Y) to
speak freely (Z). A positive right might be framed as a person (X) being free
from adverse economic circumstances (Y) to obtain necessary medical care
(Z). All rights, argued MacCallum, fit into this same schema.
Accepting MacCallum's analysis as persuasive, there is still an important
distinction between negative and positive rights. A right could be called
negative whenever the Y at issue is the government taking action against the
X. WheAi the Y is extragovernmental, or rephrased as government inaction,
the right is considered a positive one.
5
There is, thus, a potential distinction.
The question then becomes whether there is a sound reason for
distinguishing the restraints imposed by government actions from other
sorts of restraints. As argued below, there are practical and historical
reasons for doing so, but the point here is the distinction between negative
and positive rights.
I propose the following simple test for distinguishing between positive
and negative rights-if there was no government in existence, would the
right be automatically fulfilled? If there is a government in place, one must
call upon that government to enforce one's rights, whether positive or
negative. However, the negative right is not dependent upon government
in the sense that the abolition of government would intrinsically satisfy the
right. In other words, if there is no government, it cannot establish a
religion, pass a law denying free speech, or deprive its citizens of life, liberty,
or property without due process. Holmes and Sunstein argue that
"[sItatelessness spells rightslessness,
36
which literally is correct in the sense
that one cannot have legal rights without law. Being stateless is not func-
tionally being rightless though, with respect to rights against state action.
34. For an argument that rights may be harmed by nongovernmental entities, see Frank I.
Michelman, W(h)ither the Constitution?, 21 CARDOZO L. REV. 1063 (2000), who notes that "one
member of society (it may be an individual or a firm) may have the practical power-unilaterally,
without any process of law whatever-to dispossess, maim, degrade, censor, expose, or humiliate
another, or to hinder another's exercise of some constitutionally valued dimension of personal
liberty." Id. at 1075.
35. At one point, Gerald MacCallum implies that this distinction between action and
inaction is unjustified, suggesting that the question should not be the cause of the unfreedom but
"whether the difficulties can be removed by human arrangements." MacCallum, supra note 32, at
326. However, he later suggests that freedom is "always and necessarily from restraint," id. at 330,
and it is odd to think of inaction as a restraint. Moreover, there may be a real pragmatic legal
difference between government action and inaction, even if there is no abstract theoretical
difference.
36. HOLMES & SUNSTEIN, supra note 10, at 19.
866 48 UCLA LAW REVIEW 85 7 (200 1)
Without a state, one is definitionally free from intrusive state actions.
Curiously, Holmes and Sunstein argue that a "disabled state cannot protect
personal liberties, even those that seem wholly 'negative,' such as the right
against being tortured by police officers and prison guards."
37
If the state
was truly disabled, the police and prison apparatus also would be. As a
result, this right would be fulfilled, not violated. If the resources for rights
protection were selectively disabled while the rest of the state remained
healthy, the statement would make sense, but that hypothetical would
merely evade the distinction between positive and negative rights.
This test for the nature of rights unveils a common semantic misunder-
standing about our constitutional rights. They do not bestow rights upon
individuals to take some action but only bestow rights to be free from
certain rules limiting that action. Constitutional rights are structured, "not
as shields around particular actions, but as shields against particular rules."
3
The Fifth Amendment's property right is "not a right to possess property," but
an opportunity to acquire it and a prohibition upon its being taken by the
government.
39
Our Bill of Rights focuses not on the Z (right to take some
action) but on the Y (prevention of government obstruction of that action).
The U.S. Supreme Court has held that "[a]lthough the liberty protected by
the Due Process Clause affords protection against unwarranted government
interference..., it does not confer an entitlement to such [government assis-
tance] as may be necessary to realize all the advantages of that freedom."
40
Consider this distinction in the context of freedom of speech. The
First Amendment does not truly guarantee any individual freedom of speech
or conscience in the abstract. By its terms, the First Amendment only pro-
hibits government abridgement of such rights.
4
' If a private employer should
choose to fire an employee for making a speech, that action is not unconsti-
tutional. No individual has a right to command a newspaper, say, to publish
her letter to the editor.
42
The right of free speech is fundamentally a right not
to have your speech censored by the government, not a guarantee that a
37. Id. at 44.
38. Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional
Law, 97 MICH. L. REV. 1, 13 (1998).
39. KELLEY, supra note 14, at 22-23 (describing how negative rights do not truly ensure the
right to take an action, much less an effective action).
40. Harris v. McRae, 448 U.S. 297, 317-18 (1980).
41. Richard Posner suggests that a "negative liberty is a right not to be interfered with by
the government, or... by anyone else." Posner, supra note 29, at 2-3. He can so define negative
liberty for his purposes but that clearly is not the constitutional definition of negative rights,
which are limited to protection from government interference. See infra Part I.B.
42. See Bradley A. Smith, Money Talks: Speech, Corruption, Equality, and Campaign Finance,
86 GEO. LJ. 45, 67 (1997) (noting that "the speaker seeking to force his way onto a network has no
right to do so" and that "no right has been abridged when he is denied access").
867
person is free to speak his mind without economic or social sanction. Thus,
if there were no government, the First Amendment would be automatically
fulfilled. The freedom an individual feels to speak freely might be no
greater without government-it might well be less. However, because the
First Amendment by its terms would be fulfilled absent a government, that
particular limited right would be satisfied.
The most commonly invoked positive right is the right to a minimally
adequate standard of living, such as an annual income or basic services.
This right would not automatically be fulfilled or satisfied with the abolition
of government, as it presumptively requires the government to take some
affirmative steps to ensure its fulfillment. To the contrary, the absence of
government would probably preclude its achievement. Hence, the right
cannot be considered a traditionally negative one.
The distinction might seem obsessed with the threats posed by govern-
ment, as opposed to those posed by other private entities.
43
Why should we
carve out freedom from the government as a special category of rights and
not freedom from, say, corporations? One simple reason is history. Since
feudal times, the government has presented the greatest risk to individual
freedom of action. In the eighteenth and nineteenth centuries, the "central
problem of political theory" was the determination of the "'limit of what a
government may do.'
'
. The story of the twentieth century cautions against
the uniquely oppressive risk of government, be it National Socialist or
Communist.
45
While the pragmatic nature of the upcoming argument does
not actually depend upon such a special fear of government, that fear
animated the generation that drafted the Constitution, as discussed in the
following part.
B. The Bill of Rights as Essentially Negative in Nature
Even if one accepts that negative and positive rights can be theoreti-
cally distinguished, advocates of positive rights might argue that there is
nothing constitutionally exceptionable about their recognition and that the
Constitution is already rife with positive rights. Such an assertion is
contrary to the conventional view, expressed by Posner, that the Constitu-
43. Cf. Bandes, supra note 11, at 2316 (arguing that critics of positive rights focus unduly on
risks of government action and presumptions of individualism).
44. Cohen, supra note 19, at 217; see also Wendy E. Parmet, Health Care and the
Constitution: Public Health and the Role of the State in the Framing Era, 20 HASTINGS CONST. L.Q.
267, 271 (1992) (suggesting that "[we rely on the Constitution to limit the power of the government
to restrain our rights").
45. Cf. Parmet, supra note 44, at 271 (observing that "[i]n the century that has witnessed
Auschwitz and Chernobyl, it is easy to see the dangers posed by state power").
48 UCLA LAW REVIEW 85 7 (200 1)
868
tion "is a charter of negative rather than positive liberties."
6
Holmes and
Sunstein dispute Posner's contention, though, claiming that the Bill of
Rights already contains numerous positive rights.
Some constitutional rights appear positive on their face. For example,
the Sixth Amendment's right to confront one's accuser looks like a positive
right to confront.
48
This appearance leads to a misreading. The true right is
not to be convicted without a right to confront the accuser. Thus, it is a
negative right, as a condition on conviction by the government. Suppose
the prosecution is dropped. If the confrontation clause were truly a positive
right, the defendant would retain the right to have his accuser identified
and confronted, but this is not the implication of the constitutional
provision. While these rights of criminal defendants are phrased as if they
were positive rights to government assistance, they in fact are negative
rights, not to be convicted or to be held by the government, unless such
assistance is provided.
49
There is a thin and confusing line between govern-
ment action and inaction," but a negative right is one that can always be
satisfied by inaction of some kind (even if it may also alternatively be
satisfied by a government action), while a positive right cannot be satisfied
by inaction and intrinsically requires government action.
The prison conditions cases appear to involve positive rights, but they
arise in the context of involuntary incarceration of plaintiffs. Under
Supreme Court precedent, positive rights to government affirmative action
46. Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983).
47. See HOLMES & SUNSTEIN, supra note 10, at 52-54.
48. See U.S. CONST. amend. VI; Bandes, supra note 11, at 2276 (noting that some
"constitutional provisions clearly mandate affirmative governmental conduct" such as the Sixth
Amendment requiring "government to provide an accused a speedy public trial, compulsory
process, assistance of counsel, and the opportunity to be informed of the nature of the accusation
and confronted with the witnesses against him"); Bitensky, supra note 11, at 576 (suggesting that
the Sixth Amendment is phrased as a positive right). Erwin Chemerinsky argues that the Fourth
Amendment's requirement that the government obtain a search warrant is a positive right. See
Erwin Chemerinsky, Making the Case for a Constitutional Right to Minimum Entitlements, 44 MERCER
L. REV. 525, 534 (1993). The affirmative duty to obtain a search warrant seems more realistically
viewed not as a positive right but as a limitation on a negative right to be secure in one's home.
No one claims that they have a positive right that the government search their home, with or
without a warrant.
49. Thus, while courts may mandate a variety of improvements in prison conditions, the
government could evade these affirmative requirements simply by shutting down the prison, granting
the negative right of freedom from government incarceration. The implications of the negative
right are apparent from the remedies that courts may order. See, e.g., Hilton v. Braunskill, 481
U.S. 770, 775 (1987) (observing that in the presence of a violation, the government has the choice
of correcting it or simply releasing the prisoner).
50. See Bandes, supra note 11, at 2279-82 (explaining the difficulty).
870 48 UCLA LAW REVIEW 857 (2001)
arise when a party is in custody or forced physical restraint.
5
' The individuals
only are entitled to positive rights as long as they remain imprisoned. The
government could fulfill the rights by releasing them from prison, so these
rights are properly characterized as negative ones.
Holmes and Sunstein suggest that the Due Process Clause contains
many positive rights.
2
They claim that the constitutional right to due proc-
ess "presupposes that, at the taxpayers' expense, the state maintains and
makes accessible complex and relatively transparent legal institutions
within which the cumbersome formalities of fair, public, and understand-
able adjudication occur."
3
They further argue that "[u]nder the protection
against 'takings' of private property without just compensation, the
government is probably under an obligation to create trespass law and to
make it available to property owners."
54
They analogously suggest that if
"a state declines to make its courts available to enforce certain contract
rights, it has probably impaired the obligations of contracts, in violation of
the contracts clause."
5
If the Constitution did in fact protect property and
contracts from private intrusions, these would indeed be positive rights, but
the Holmes and Sunstein argument is quite a stretch. Consider the con-
stitutional text, which precludes the state from depriving people of their life,
liberty, or property.
56
This suggests that the state cannot take these things
away, yet has no duty to create or to maintain them. Holmes and Sunstein
observe that if the definition of liberty includes police protection, then the
51. See Youngberg v. Romeo, 457 U.S. 307, 315-17 (1982) (discussing and extending
prison cases to involuntarily committed mental patients because the confinement is involuntary).
See Bandes, supra note 11, at 2294-97, for a further discussion.
52. They are not the first to make such claims. See sources cited supra note 11. The Court,
however, has largely rejected this position, holding that the Due Process Clause merely protects
individuals from "the arbitrary exercise of the powers of government." Daniels v. Williams, 474 U.S.
327, 331 (1986).
54. Id. at 52.
55. Id. at 52-53.
56. The Fourteenth Amendment reads: "[N]or shall any state deprive any person of life,
liberty, or property, without due process of law .... U.S. CONST. amend. XIV, 1; see David P.
Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864, 865 (1986) (emphasizing
that the Due Process Clause is phrased as a negative right).
A more philosophically appealing critique of the distinction between negative and positive
rights might note that the very concept of property as protected by government interferes with
certain negative rights, such as a right to steal someone else's possessions. See, e.g., McCloskey,
supra note 20, at 486; James P. Sterba, From Liberry to Welfare, 105 ETHICS 64, 74 (1994). If negative
liberty is simply noninterference, defending property is an interference. However, H.J. McCloskey
notes that negative liberty can alternatively be taken as presuming some moral baseline, in which
there is no right to steal, so preventing stealing is not truly an interference. See McCloskey, supra
note 20, at 489-91 (describing how negative liberty may simply imply noninterference with certain
rights as opposed to absolute noninterference with any action).
state has a positive constitutional duty to provide such protection.
7
That
observation is logical enough, but the authors never explain why one should
interpret constitutionally protected liberty to include police protection.
They in fact concede that the "government ordinarily cannot be sued in
court for failing to ensure the property rights of particular people against
burglars and incendiaries."
8
The Supreme Court plainly holds that the prop-
erty rights "are not created by the Constitution."
9
Similarly, the Contracts
Clause is violated only by the withdrawal of a previously existing legal right,
and there is no recognized state obligation to protect contractual expecta-
tions." So how can Holmes and Sunstein claim that there is such a positive
right to police protection or to property or to contract enforcement?
Holmes and Sunstein parse no text and cite no precedents in support
of their claims about the positive implications of the Due Process Clause.
The Supreme Court consistently makes the distinction between positive and
negative rights and refuses to find any basis for positive rights in the
Constitution.
61
The Seventh Circuit has declared that the Constitution is a
"charter of negative rather than positive liberties,"
6'2
and the Supreme Court
has held that ensuring a minimal livelihood for citizens is "not the business"
of the courts.
63
Neither the text of nor the precedents interpreting the Con-
stitution support a claim that it creates positive rights to well-being. That
fact does not mean that a strong interpretive case cannot be made for
implying some positive rights in the Constitution. It simply reveals that the
step has not been taken and that taking it would be a distinct departure
from our constitutional history and current understanding.
57. See HOLMES & SUNSTEIN, supra note 10, at 90. Chemerinsky argues that "[i]f a police
officer stands by and does nothing while a severe beating occurs, the government effectively has
deprived the victim of his or her liberty." Chemerinsky, supra note 48, at 535. Perhaps so, in a
philosophical sense, but not in a constitutional sense. He cites no textual or precedential support
for his implication that this might be an applicable violation of the Bill of Rights. In fact, this is
pretty close to the facts of Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir. 1983), which involved
a policeman who failed to rescue individuals trapped in a burning car.
58. HOLMES & SUNSTEIN, supra note 10, at 196; see also Barber, supra note 5, at 161 (noting
how the courts have consistently refused to find any "constitutional right to police and fire
protection").
59. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).
60. See Currie, sup'ra note 56, at 875 (citing Ogden v. Saunders, 25 U.S. (12 Wheat.) 213
(1827)).
61. See, e.g., Hershkoff, supra note 11, at 1133 (observing that "the Court has rejected
constitutional claims to housing, to public education, and to medical services, on the view that
the government does not owe its citizens any affirmative duty of care").
62. Jackson, 715 F.2d at 1203.
63. Dandridge v. Williams, 397 U.S. 471, 487 (1970).
48 UCLA LAW REVIEW 857 (2001)
The Framers of the Constitution and especially of the Bill of Rights
primarily concerned themselves with rights against government.
64
Burt
Neuborne, an advocate of some positive rights, notes that "everything we
know about the purpose and structure of the federal Constitution reinforces
the concept of a document aimed against government."
6
To the extent the
Framers thought about government responsibilities to citizens, they were not
contemplating welfare.
66
David Currie suggests that they "would have been
astounded to hear it contended that by adopting the Bill of Rights they had
managed to make mandatory the exercise of a congressional power to help
needy citizens when the very existence of such a power was reasonably
doubted as recently as the 1930s."6 This astonishment is not attributable to
the poorly developed public philosophy of the period. In fact, constitutions
and codes in Europe at around the same time incorporated government
obligations to the needy.
66
The absence of such clear provisions in our Con-
stitution thus seems historically significant.
6 9
The Constitution today is not utterly or universally negative in
approach. The Thirteenth Amendment's prohibition on private slavery
64. See, e.g., Cox, supra note 3, at 93. (noting that the "original Bill of Rights was
essentially negative" and "marked off a world of the spirit in which government should have no
jurisdiction," assuming that "the citizen had no claim upon government except to be left alone").
Peter Edelman, an advocate of positive rights, has observed that the "Framers surely did not
contemplate any constitutional right to any degree of redistribution, however modest." Edelman,
supra note 5, at 5.
65. Burt Neuborne, State Constitutions and the Evolution of Positive Rights, 20 RUTGERS L.J.
881, 890 (1989).
66. See, e.g., Louis HENKIN, THE AGE OF RIGHTS 153 (1990) (observing that the "Framers
saw the purposes of government as being to police and safeguard, not to feed and clothe and
house").
67. Currie, supra note 56, at 866; see also Loren A. Smith, The Eternal Price of Liberty or the
Magical World of Constitutional Law: How Not to Make Rights Appear and Disappear Out of a Hat, 32
SUFFOLK U. L. REV. 1, 6 (1998). Loren Smith argues that
A positive right is really a grant of power to government to do something. Something
supposedly like ensuring a good economy, good health care or good schools. But rights were
intended by the Framers of our Constitution, and most other constitutions, to deal with
precisely the opposite problem. That problem is how can we prevent government from
abusing the powers that we have given it.
Id.
68. See Glendon, supra note 13, at 524 (noting that "even eighteenth- and nineteenth-
century continental European constitutions and codes acknowledged state obligations to provide
food, work, and financial aid to persons in need"); Pereira-Menaut, supra note 13, at 374-75
(tracing the concept of positive rights back further into the seventeenth century).
69. Sotirios Barber responds that the articles of the Constitution are full of provisions
creating and empowering government institutions. See Barber, supra note 5, at 163-64. While
true, these provisions are not rights; no one can demand a particular congressional regulation of
interstate commerce, for example. As a general matter, the Constitution recognizes Berlinian
positive liberties of popular self-determination but not positive rights that individuals can enforce
through the judicial system.
plainly constitutes a positive right that could not be fulfilled by the
abolition of government. This prohibition may be the only unambiguously
positive right in the Constitution
70
although some other provisions have
been given a gloss that contains positive rights protections. The state
action condition on the Fourteenth Amendment occasionally has been
interpreted broadly enough that it appears to be a positive right to protection
from private action.
7
' The amendment also has been invoked to compel
government affirmative action programs, but "the Supreme Court has
strictly limited such affirmative action to groups able to show specific
evidence of past governmental discrimination and has required that
solutions be narrowly tailored to address only the specific past discrimina-
tion.,
72
Such programs look like positive rights but are grounded in a prior
violation of a negative right against government discrimination. The First
Amendment has been interpreted on occasion to require the government to
protect speakers from purely private attacks.
73
The rights to vote and to a
republican form of government could be called positive rights but are truly
a recognition of a positive liberty in Berlin's original sense.
While the rights recognized in the Constitution are not perfectly
negative, they are overwhelmingly oriented that way.
4
By contrast, the
positive rights that have been acknowledged are rare and quite limited
in their application.
7
' All of these positive rights seem to conform to
majoritarian sentiment and none impose substantial costs on the budgets of
70. There are a variety of provisions in the Constitution that require the government to
take some action, such as keeping a journal of legislative proceedings, accounting for expenditures,
and conducting a census. See Chemerinsky, supra note 48, at 534. These are not the sort of privately
enforceable rights at issue, however. Unlike the first ten amendments to the Constitution, they
are not called rights.
71. Several authors have claimed that the judicial interpretation of state action is
incoherent. See, e.g., Erwin Chemerinsky, Rethinking State Action, 80 Nw. U. L. REV. 503,504-
05 (1985); Robert J. Glennon, Jr. & John E. Nowak, A Functional Analysis of the Fourteenth
Amendment "State Action" Requirement, 1976 SUP. Cr. REV. 221. David Currie finds some "affirma-
tive duties" present in state action cases, so long as the state has taken some action already. See
Currie, supra note 56, at 885.
72. Smith, supra note 42, at 66.
73. See, e.g., Downie v. Powers, 193 F.2d 760 (10th Cir. 1951). While holdings such as
this "break down" the "positive-versus-negative-rights distinction," they are not common and "the
basic point still remains." Derek Shaffer, Answering Justice Thomas in Saenz: Granting the Privileges
or Immunities Clause Full Citizenship Within the Fourteenth Amendment, 52 STAN. L. REV. 709, 738
n.136 (2000).
74. See, e.g., Currie, supra note 56, at 886-87 (concluding after a review of the disputed
issues, that it is a "generally valid principle" that the Constitution is a charter of negative liberties,
but that there are some limited exceptions).
75. See, e.g., Bitensky, supra note 11, at 577 (arguing that the Constitution contains positive
rights but conceding that such rights are "few" and "isolated").
government at any level.
76
The existence of limited positive rights indicates
that the recognition of additional, substantial positive rights, such as a right
to minimally adequate subsistence, would be a quantitative change of degree
and not entirely a qualitative change of kind. However, changes of degree
can be enormously significant, and more significant than changes of kind.
7
The Supreme Court seems able to distinguish between positive and
negative rights and to limit the Constitution to the latter category. The
Court refuses to recognize the poor as a suspect class under the Fourteenth
Amendment
78
and rejects any constitutional right to welfare benefits
79
or
other aspects of minimal subsistence." The classic Court explication comes
in the case of Deshaney v. Winnebago County Department of Social Services."'
The Court there holds that "our cases have recognized that the Due Process
Clauses generally confer no affirmative right to government aid, even where
such aid may be necessary to secure life, liberty, or property interests of
which the government itself may not deprive the individual."
2
It notes
that the "Framers were content to leave the extent of governmental
obligation.., to the democratic political processes."" Even the dissent by
Justices William J. Brennan, Jr., Thurgood Marshall, and Harry A. Blackmun
concedes that it "may well be ... that the Due Process Clause as construed
by our prior cases creates no general right to basic governmental services"
and characterizes the case as one of government action rather than inaction."
C. Critiques of the Distinction Between Negative and Positive Rights
Even if one accepts the theoretical distinction between negative and
positive rights and the nature of our Constitution, practical matters might
76. Holmes and Sunstein set out the "cost of rights" as being a considerable expense of
government. See HOLMES & SUNSTEIN, supra note 10.
While the cost of maintaining a court system is fairly significant, that cost should not be
considered a cost of rights. The courts exist for pragmatic reasons and would surely exist even if
there were no constitutional right of due process. Moreover, the costs contemplated by a positive
right to a minimally adequate livelihood would considerably exceed even Holmes and Sunstein's
liberal estimates of the costs of current rights.
77. The difference in basketball playing ability between Shaquille O'Neal and the last
player on the Clippers' bench is only a difference in degree, but it is an enormous one. Recognizing
significant positive constitutional rights would similarly reflect a very large difference in degree.
78. See James v. Valtierra, 402 U.S. 137, 141--42 (1971).
79. See Dandridge v. Williams, 397 U.S. 471, 485-86 (1970).
80. See Lyng v. UAW, 485 U.S. 360, 369-73 (1988) (rejecting any right to food subsidies);
Lindsey v. Normet, 405 U.S. 56, 74 (1972) (rejecting any right to housing).
81. 489 U.S. 189 (1989).
82. Id. at 196.
83. Id.
84. Id. at 203.
present difficulties. One criticism of the distinction argues that it is philo-
sophically an unreasonable one, because the existence of a negative right
presumes the value of the activity that cannot be prohibited, so that there
must be merit to its enhancement. Another criticism argues that the theo-
retical basis of the distinction, the absence of government, is a meaningless
one in the contemporary world. In this part, I consider and answer those
critiques.
Nobel laureate Amartya Sen recognizes that there is a theoretical
difference between negative rights and positive rights but argues that the
distinction is philosophically unsupportable. He asks: "Why is it important
that I should not be stopped from doing something and-at the same time-
unimportant whether or not I can in fact do that thing?
'
Finding no good
answer to the question, Sen maintains that "consequential reasoning can
justify-indeed require-many positive actions in pursuit of negative free-
dom."
6
He elaborates that
valuing negative freedom must have some positive implications. If I
see that negative freedom is valuable, and I hear that you are about
to be molested by someone, and I can stop him or her from doing
that, then I should certainly be under some obligation to consider
doing that stopping. It is not adequate for me to resist molesting you;
it is necessary that I value the things I can do to stop others from
molesting you. I would fail to value negative freedom if I were to refuse
to consider what I could do in defence of negative freedom."
This position is, he believes, compelled by a concern for real-world
consequences of legal rules."
8
Sen's argument contains an unsupported premise: Because society
provides the negative freedom to do something, it necessarily is a good
thing to do. This proposition erroneously conflates the value of the individ-
ual freedom to act with the value of the action taken. For example, there is
a constitutional right not to be prohibited from having an abortion (at least
in some circumstances). However, this right does not imply that society
wants to encourage abortions. President Bill Clinton, a steadfast supporter
of abortion rights,
89
does not encourage abortions, but has declared that
abortion should be "'safe and legal, but rare."'
9
One can argue that abortion
85. AMARTYA SEN, RESOURCES, VALUES AND DEVELOPMENT 313 (1984).
86. Id.
87. Id. at 313-14.
88. See id. at 314 (stressing the importance of consequence sensitivity, if not full philo-
sophical consequentialism).
89. See Graber, supra note 13, at 732.
90. Sylvia A. Law, Sex Discrimination and Insurance for Contraception, 73 WASH. L. REV.
363, 367 (1998) (quoting William J. Clinton, President's Remarks on Signing Memorandums on
is wrong and that women still should have a right to choose to have an
abortion.
While the exercise of some constitutional rights might be considered a
societal good, such a relationship is not automatic. At best, the good would
be a presumptive good and not an absolute one calling for maximization
of the exercise of such rights. Society can grant a right against self-
incrimination without condemning those who voluntarily choose to
incriminate themselves and to face the punishment imposed upon them. It
is not even clear that we should encourage a positive right to truly
unlimited free speech. Free speech, unconstrained by private associations
and societal norms, could lead to an undesirable excess of rude, thoughtless
speech or just an excess of speech period. The right ensuring that the
government cannot seize private property does not imply that a vigorous
exercise of such property rights is moral or beneficial. The voluntary giving
of land for a public park can be beneficial, even if the seizure of that
property without compensation for parkland is considered harmful. Thus,
granting a private freedom to do Z does not necessarily imply that Z is a good
thing; it might merely imply that freedom of choice is a good thing or, alter-
natively, that the pragmatic consequences of such freedom from govern-
mental restraint might yield a better society than permitting restriction by the
government.
The second answer to Sen's argument is more pragmatic. Even if we
wish to encourage the positive practice of negative rights, it does not follow
that we should recognize a legally enforceable positive right to take the
action. The test for a right is whether a society that recognizes that right is
better than one that does not. A negative right would be warranted, conse-
quentially, if its restraint on government action improved the society. This
might be due to the fact that the action protected by the right is a generally
good one. It does not follow, though, that we should grant a positive
constitutional right to take all good actions. The consequential question
for a positive right is whether its recognition and enforcement will produce
a better society. The analysis of this differs from that of the reciprocal
negative right, however. Recognizing the positive right is bound in the
ability of the relevant government institution to take appropriate and
effective positive steps to advance the action. Thus, it is plausible to con-
clude that the courts might be useful at the task of proscribing government
action that interferes with rights, but might not be useful at the task of
compelling government action to advance rights.
Medical Research and Reproductive Health and an Exchange with Reporters, in 1 PUB. PAPERS:
WILLIAM J. CLINTON 1993, at 7 (Jan. 22, 1993)).
876
While Sen's discussion about the operation of private markets is
insightful, his assessment of government, or at least its processes of rights
enforcement, is flawed.
9
Even assuming that society would be better if all
its members had minimal incomes, recognizing a positive right to a minimal
income would not necessarily achieve that goal effectively and without
counterproductive effects. Sen does not consider thoroughly the pragmatic
effects of a positive right before embracing it. Realistic, consequentialist
vision often calls into question the theoretical benefits of positive rights.
A possible counterargument is that the theoretical basis for
distinguishing positive and negative rights, namely the implication of the
abolition of government, is too unrealistic. Government is surely here to stay.
Susan Bandes thus criticizes the baseline of "complete lack of government
involvement" on the grounds that the government is now a "pervasive
regulator and architect of a vast web of social, economic, and political
strategies and choices."
92
She makes a persuasive case that, as a practical
matter, there is today little difference between a government penalty and
the government's refusal to extend a subsidy.
93
It does not follow, though,
that this justifies the recognition of positive constitutional rights on the
same basis as negative ones.
The considerable contemporary role of government and its enormous
growth in the period since 1787 arguably cuts the other way in debates over
the recognition of constitutional positive rights. The Framers of the Con-
stitution did not see the need to compel government assistance in a world
with far less extraconstitutional government assistance and far more private
inequity (for instance, slavery)." The intervening growth of extracon-
stitutional, statutory assistance to the poor, protection of the environment,
and other progressive legislation would not itself seem to provide
a justification for requiring even more assistance to be compelled by the
Constitution. If anything, it shows that a constitutional right is not
91. This sentence might be unfair. When Amartya Sen speaks of positive freedoms he is
speaking of "moral thinking" and not necessarily government constitutional recognition. SEN,
supra note 85, at 315. He clearly believes, however, that we should recognize positive obligations
of government, see id. at 314, and argues for recognition of an "entitlement" to some basic goods
such as health services and education, see id. at 527, though he leaves the nature of that
entitlement somewhat unclear.
92. Bandes, supra note 11, at 2285; see also Kreimer, supra note 11, at 1295-96 (discussing
the centrality of government in contemporary American society); Scott & Macklem, supra note
13, at 46 (suggesting that the difference between positive and negative rights depends on the choice
of baseline).
93. See Bandes, supra note 11, at 2297-305.
94. See, e.g., KELLEY, supra note 14, at 32 (observing that "we would be shocked to find
anyone living today in the material circumstances that were common in Locke's day, or Jefferson's").
878 48 UCLA LAW REVIEW 857 (2001)
necessary for the advancement of government assistance programs for the
95
poor.
In any event, the pragmatic critique of my distinction does not
necessarily deny my theoretical difference between positive and negative
rights but maintains that the difference is one without a justifiable distinc-
tion in today's world. That claim is irrelevant to my current point and
is addressed below. My distinction, based on a "no-government" baseline is
nothing more than that-a basis for distinguishing between negative and posi-
tive rights. Some natural rights theorists might claim that this baseline itself
provides a normative jurisprudential basis for rejecting positive rights.
96
I
make no normative claims at all at this point in the Article. Instead, I merely
descriptively claim that the no-government baseline enables a distinction
between types of rights. My case against positive rights does not depend on
any normative position about the natural or proper role of government. I
present this case in the remainder of the Article.
I. PROBLEMS WITH POSITIVE RIGHTS
The most useful evaluation of positive rights is a pragmatic,
consequentialist one. Increasingly embraced by legal analysts, both advocates
and critics of positive rights may well resist pragmatism as an evaluative
tool. Hence, before commencing a pragmatic evaluation of positive rights,
this evaluative paradigm deserves some explanation.
Many critics of positive rights eschew pragmatism because its
utilitarian basis conflicts with their philosophical foundation. Because they
see rights as derivatives of natural law, their perspective counsels that rights
are freedoms to act, not rights to government assistance. Utilitarian
approaches are irrelevant to them, because rights do not embody any
utilitarian justification.
95. Advocates of positive rights might contend that the extraconstitutional efforts have
not gone far enough, though this is surely a debatable point. I need not debate that point, however.
At the current point in this Article, I seek only to establish that such rights are distinguishable
and generally not found in the Constitution. In succeeding parts, I attempt to establish that
introducing positive rights into the Constitution will not effectively advance the objectives of the
advocates, whatever the legitimacy of those objectives.
96. See, e.g., ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 88-119 (1974) (discussing
negative rights as being pre-political, natural rights of individuals). I find the criticism that such
baselines are not neutral and unjustly privilege the status quo to be a persuasive one. See
SUNSTEIN, supra note 13, at 68-92.
This rejection of pragmatism seems flawed. The critics' position relies
on the implicit fear that recognizing positive rights will inevitably lead to
the destruction, or at least dilution, of the natural, negative rights. However,
this factual claim, generally unproved, demands a pragmatic, consequentialist
analysis for its evaluation.
The advocates of positive rights might likewise disfavor pragmatism
and its utilitarian grounding. They could perceive a deontological or even
specifically religious command to take positive action to help the poor, to
conserve the environment, or to protect some other positive end. This
position is unsustainable and internally incoherent, given the proposed
nature of those rights.
Proponents of positive rights seek to effectuate a consequence, for
instance, the improvement of the living conditions for the disadvantaged.
The efficacy of that right, then, should be evaluated. Absent that analysis,
positive rights are grounded in nothing more than an altruistic desire
to take symbolic action without regard for the interests of the very bene-
ficiaries they purport to benefit.
97
The formalization of such rights, as history
demonstrates, "will at best be a meaningless, empty gesture."
9
Without
positive consequences, such rights merely reflect the consciences of the
more privileged.
Once the pragmatic criterion is accepted, the question shifts to the
effects of recognizing positive rights in the Constitution and the legitimiza-
tion of judicial action enforcing such rights. One need not recognize such
rights in order for the legislature to pass laws assisting the poor or protecting
the environment. The recognition of positive rights holds out the prospect
that the courts can be petitioned to intervene and compel such action,
when the legislature fails to act sufficiently to advance the rights. Hence,
the crucial issue is the effect of permitting judicial enforcement of these
rights.
97. In addition to the arguments that I raise below, there is a case that a litigation strategy
is inevitably such a "feel good" unpragmatic response to the needs of the poor. See MARTHA F.
DAVIS, BRUTAL NEED: LAWYERS AND THE WELFARE RIGHTS MOVEMENT, 1960-1973, at 143
(1993) (noting that litigation puts lawyers in charge, even though they may not appreciate the
needs of the poor, and it threatens to "undermine the often fragile organizing power of the grass
roots movement"); see also GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING
ABOUT SOCIAL CHANGE? 340 (1991); Diller, supra note 13, at 1412 (noting that test-case legal
strategy may be a lawyer's "means of advancing his or her own social vision while doing little of
real value for clients").
880 48 UCLA LAW REVIEW 857 (2001)
The ability of the judiciary to develop remedies that effectively enforce
positive rights constitutes a reason not to recognize them. Laurence H.
Tribe notes the "familiar difficulties with judicial enforcement of affirmative
duties."
99
Akhil Reed Amar suggests that "[t]here may well be a variety of
institutional limitations on courts that make them unsuitable for the task"
of enforcing positive welfare rights."

This argument emphasizes the
shortcomings of having judges gathering facts and making policy.'

How-
ever, there is a different and more compelling case against the recognition
of positive constitutional rights.
A. The Economics of Rights Enforcement
Rights do not enforce themselves. They require judicial decisions
interpreting and enforcing their terms. Those decisions in turn require that
a case or controversy come before the courts. Courts cannot control the
nature of the cases they hear."
0 2
Therefore, effective rights enforcement
requires plaintiffs with ability and resources. Charles Epp's analysis demon-
strates that "rights revolutions depend on widespread and sustained litiga-
tion in support of civil rights and liberties...
3
The key to effective rights
enforcement is a "support structure for legal mobilization," which requires
"rights-advocacy
organizations, a diverse and organizationally
sophisticated
legal profession, a broad array of financing sources, and federal rights-
advocacy efforts."'
0 4
Rights enforcement requires resources. The mere introduction of a
positive right into the Constitution may not have much effect unless and
until it is fleshed out through litigation. The ability to litigate "depends on
ample purses and effective mobilization of legal services, which vary greatly
among different classes, groups, and sections of the country."'
0 5
Poor indi-
viduals and, to a degree, groups representing the poor may lack the resources
99. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1336 (2d ed. 1988).
100. Akhil Reed Amar, Forty Acres and a Mule: A Republican Theory of Minimal Entitlements,
13 HARV. J.L. & PUB. POL'Y 37, 42 (1990).
101. This argument is summarized and criticized in Hershkoff, supra note 11, at 1175-82.
102. Only the Supreme Court has control over its agenda, and that control is relatively
weak. See CHARLES R. EPP, THE RIGHTS REVOLUTION 37 (1998) (noting that "the Court's
agenda is built gradually and in a bureaucratic process in which there is a large number of
contributing actors," so that the path of cases is connected "only weakly" to the preferences of the
Justices); see also J. WOODFORD HOWARD, COURTS OF APPEALS IN THE FEDERAL JUDICIAL
SYSTEM 17 (1981) (emphasizing that "[Ilitigants, not judges, set court agendas").
103. EPP, supra note 102, at 18.
104. Id. at 69.
105. HOWARD, supra note 102, at 17.
to advance effectively the right." Litigation costs present a particularly
onerous obstacle at the Supreme Court level, where positive rights are
interpreted.'
7
Government legal assistance programs are limited in avail-
ability and support." Holmes and Sunstein note: "Every American citizen
has the right to sue the police for civil damages, but only a party with
substantial private resources has a fighting chance to do so successfully.
Those most likely to suffer police abuse ordinarily have no such resources
and hence, in practice, enjoy no such right."'" The same consequence is
even more likely with positive welfare rights. Thus, the practice of enforcing
welfare rights appears correspondingly pessimistic.
Studies of interest group litigation identify six key resources "critical"
to success: (1) the amount of money available, (2) the support of the federal
government, (3) the ability to sustain the efforts over a long period of time,
(4) an expert legal staff, (5) extralegal publicity, and (6) the cooperation
of like-minded groups."' Research indicates that success requires the avail-
ability of "most if not all" of these resources."' Because groups supporting
the poor often lack the first resource, they likely will struggle in employing
the third and fourth resources. The support of the federal government may
also be absent because litigation likely will involve a group suing the
government for failing to provide sufficient resources to fulfill the demands
of the positive right. If the government supports the plaintiffs, the right
might be superfluous.
Because of the resources required by litigation, the "basic architecture"
of the litigation process means that wealthier, repeat participants (the
"haves") will prevail more frequently at the expense of the "have nots."
12
106. See CHRISTOPHER E. SMITH, COURTS AND THE POOR 8 (1991) (noting that "many
individuals cannot gain access to courts because of the costs, both financial and personal, of
pursuing litigation"). The poor may see nonfinancial barriers to rights enforcement, as "for a
variety of sociological and psychological reasons, [the poor] are least likely to perceive the law and
lawyers as accessible and appropriate for the resolution of their disputes." SUSAN E. LAWRENCE,
THE POOR IN COURT: THE LEGAL SERVICES PROGRAM AND SUPREME COURT DECISION
MAKING 35 (1990).
107. See SMITH, supra note 106, at 91-92 (discussing the additional costs associated with an
appeal to the Supreme Court).
108. See id. at 57 (observing that "[b]ecause legal services programs are not high priorities for
government and are not forcefully supported by powerful political interests, such programs lack
the resources necessary to fulfill the continuing need for legal counseling and representation for
low-income people").
110. See LEE EPSTEIN, CONSERVATIVES IN COURT 12-13 (1985).
111. Id. at 14.
112. See, e.g., EPP, supra note 102, at 203 (observing that rights litigation "benefits primarily
the 'haves,' those groups possessing the resources necessary to pursue litigation"); Marc Galanter,
Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC'Y REV.
95, 95 (1974).
Repeat players can structure the process in ways that disadvantage those
with fewer legal experiences."' This is especially true for broad "cause-
oriented" litigation.'
14
Richer interest groups achieve greater success in
court.
"
' Successful litigation, especially in complex matters, requires top
quality lawyers who might be especially costly to retain."
6
Those unable to
retain the best counsel are more likely to lose in court and consequently set
adverse precedents for similarly situated parties."
' 7
Parties with resources are
"much more successful in appellate courts than less resourceful litigants"
and thereby "gain legal rules that will give them substantial leverage in
subsequent encounters..'1
I
Representatives of the impoverished sometimes prevail in court. High
quality counsel occasionally represent the poor, either pro bono or through
the support of an interest group."
9
An isolated victory, however, does not
provide success for rights implementation.' Effective enforcement of a
constitutional guarantee requires consistent victories. Public interest groups
often tire from the judicial process and prove unable to "mobilize the
resources needed to capitalize on the fruits of [their] legal victories.''
Collective interest groups often confront free-rider problems because legal
rules are public goods.' In addition, opposing groups with greater resources
113. See Kenneth W. Mentor & Richard D. Schwartz, A Tale of Two Offices: Adaptation
Strategies of Selected LSC Agencies, 21 JUST. SYS. J. 143, 160-62 (2000).
114. See id. at 160, 162.
115. See Donald R. Songer & Reginald S. Sheehan, Who Wins on Appeal? Upperdogs and
Underdogs in the United States Courts of Appeals, 36 AM. J. POL. SCl. 235 (1992).
116. For a discussion of the resource advantages associated with the litigation process, see
Frank B. Cross, The Judiciary and Public Choice, 50 HASTINGS L.J. 355, 360-63 (1999).
117. See, e.g., Kevin T. McGuire, Repeat Players in the Supreme Court: The Role of Experienced
Lawyers in Litigation Success, 57 J. POL. 187 (1995).
118. Paul J. Wahlbeck, The Life of the Law: Judicial Politics and Legal Change, 59 J. POL. 778,
783 (1997).
119. Such assistance cannot be relied upon by the poor. Prior to government-funded legal
assistance, the poor had little success in court, in part because their claims did not fit into the
litigation strategy of private interest groups. See LAWRENCE, supra note 106, at 149. Moreover,
those "poor people who are fortunate enough to receive the services of a private attorney for no
fee or reduced rates will frequently not receive the same treatment as more affluent, paying
clients." SMITH, supra note 106, at 43. Pro bono assistance is also limited in quantity. See id.
at 55-56.
120. See, e.g., EPP, supra note 102, at 68 (explaining that the defendants' rights decisions of
the Warren Court came about only because "there existed a steady stream of criminal appeals
supported by a broad support structure").
121. Joel B. Grossman & Austin Sarat, Access to Justice and the Limits of Law, in GOVERNING
THROUGH COURTS 77, 88 (Richard A.L. Gambitta et al. eds., 1981).
122. See Frank B. Cross, Institutions and Enforcement of the Bill of Rights, 85 CORNELL L. REV.
1529, 1598 (2000).
can engage in strategic litigation and settlement in order to avoid
significant precedents.'
23
Many of the progressives who favor justiciable positive rights are,
ironically, those who argue that the litigation system is intrinsically biased
against the interests of the poor. They note that "[t]hose who are disadvan-
taged and disempowered in contemporary society cannot afford to launch
expensive and time-consuming litigation strategies."'
24
The recognition of
positive rights will not alter these facts. Judges will "tend to reproduce
rather than transform the status quo," and the progressives fear that the
"rights discourse and meanings generated by the judiciary will be captured
by powerful, non-disadvantaged actors.'
25
Conservative interest groups often intervene in litigation interpreting
positive rights and try to frustrate any significant income redistribution
program that could result.
1 26
Even if they are not parties to the cases, they
may participate as amici. By 1980, conservative public interest groups
surpassed liberal groups in their frequency of participation at the Supreme
Court level.
27
Conservative groups will predominate in litigation over
positive rights and defeat the efforts of liberal groups to implement
effectively such rights, especially with a favorable judiciary.'
28
Thus, the economics of rights enforcement undermines the effectiveness
of any positive right to economic assistance. In her book on the poor and
the court system, Susan Lawrence concludes that "[tlhroughout most of our
history, few of the poor have been able to turn to the courts for redress of
their grievances and participate in the judicial development of law and
policy.'
' 29
She observes that the government-funded Legal Services Program
(LSP) ameliorated this problem,
3
' but that its very success triggered a
123. See, e.g., Cross, supra note 116, at 366-68 (describing how strategic settlement and
pursuit of litigation enables parties to purchase precedents); Einer R. Elhauge, Does Interest Group
Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 78 (1991) (reporting how a party
may "settle strategically in cases where the type of judge or set of facts seems likely to lead to
unfavorable precedent").
124. Scott & Macklem, supra note 13, at 136.
125. Id. at 136-37.
126. See, e.g., id. at 33 (observing that "more advantaged members of society will attempt to
have constitutional guarantees interpreted consistently with their interests and world views, aided
by the financial resources that the disadvantaged lack").
127. See EPSTEIN, supra note 110, at 152-53.
128. See infra Part C.1. (discussing the role of a conservative judiciary in implementing a
positive right to income).
129. LAWRENCE, supra note 106, at ix.
130. See id. at 34-35. This success was attributable not only to the additional litigation
support provided by the Legal Services Program (LSP) but also by the political climate of the era,
the 1960s, which was a politically favorable time for advancing poverty and equality issues. See id.
at 98-99, 140. The LSP's success also demonstrated the general weakness of the litigation process
883
political reaction that eliminated the LSP."' The budget for government-
funded litigation assistance for the poor consistently shrinks.
32
More
importantly, the LSP did fight the legislative and executive branches. It
also did not "pursue policy goals rejected elsewhere" and was "successful in
convincing the Supreme Court to rule for its clients because a national
political coalition let it be."'
'
The Court declined to set precedents that
unduly bound government policies."' Thus, the LSP's successes occurred
through a dominant political coalition that included the elected branches.
Therefore, they do not constitute successes by the poor against those
branches. Indeed, Congress has "passed legislation restricting lawyers
receiving federal funds through the Legal Services Corporation from
undertaking litigation challenging the constitutionality of welfare laws."'
35
This passage illustrates that the economics of rights enforcement, combined
with the politics of rights enforcement, can prevent the poor from employing
an effective litigation strategy.
In his book on courts and poverty policy, Chris Smith similarly
concludes that "legal doctrine and court processes can significantly disad-
vantage poor people who seek to pursue claims."
'36
Procedural requirements
''can result in social reform groups being unable to present their best
arguments, or even have their day in court."'
37
Epp observes that the
"relative lack of support for strategic litigation by the truly poor" results in
on behalf of the poor; prior to the creation of this government-funded program, "the Court had
seldom addressed the civil claims of the poor." Id. at 149.
131. See id. at 37-38 (noting that the LSP success produced criticism from "some congressmen
and state governors" who caused the program to be replaced by the Legal Services Corporation
(LSC), which had constricted authority to seek legal change).
132. See, e.g., Steve Berenson, Politics and Plurality in a Lawyer's Choice of Clients: The Case
of Stropnicky v. Nathanson, 35 SAN DIEGO L. REV. 1, 49 (1998) (noting that the "Legal Services
Corporation has barely survived elimination, suffering deep funding reductions and draconian
restrictions on the scope of its activities"); Jessica Pearson, Court Services: Meeting the Needs of
Twenty-First Century Families, 33 FAM. L.Q. 617, 620 (1999) (observing that federal appropriations
for these programs have been cut and that both government and private legal assistance meets
only about 20.5 percent of the needs of the poor).
133. LAWRENCE, supra note 106, at 118-19. The national political coalition has helped
control the poverty litigators by placing constraints on the issues that they may take up. See
generally Alan W. Houseman, Restrictions by Funders and the Ethical Practice of Law, 67 FORDHAM
L. REV. 2187 (1999).
134. See LAWRENCE, supra note 106, at 139 (noting that the "Court certainly did not use
the due process clause to fundamentally change the substantive policy of government vis-N-vis the
poor").
135. Megan Elizabeth Lewis, Note, Subsidized Speech and the Legal Services Corporation: The
Constitutionality of Defunding Constitutional Challenges to the Welfare System, 74 N.Y.U. L. REV.
1178, 1178 (1999); see also Mentor & Schwartz, supra note 113, at 144 (discussing the history of
funding cutbacks and limits on authority for the LSC).
136. SMITH, supra note 106, at 5.
137. ROSENBERG, supra note 97, at 12.
884
"little litigation aimed at improving the conditions of the least well off."'
3
The poor generally lack the ability to take advantage of a legal system-of
positive rights.
Mark Graber contrarily argues that the judicial process does assist the
interests of the poor. He contends that "minor doctrinal victories in wel-
fare cases often have major impacts on the lives of poor people."'
39
He fur-
ther claims that judicial holdings have benefited many thousands or even
millions of needy people."
4
The economics of rights enforcement does not
reveal, however, that the poor will never be able to use the litigation process
to advance any of their interests. The economic theory simply emphasizes
the relative rarity and lack of substantive import of those victories.' To
date, the victories have been largely in statutory interpretation, in which
the judiciary is seeking to fulfill the mandate of Congress. Those victories
are easier than those required by a constitutional amendment seeking to
override congressional preferences.
4
Research supports doubts about the ability of the poor to advance their
interests in court. One study examines the relative success before the
Supreme Court of different groups between 1953 and 1988.1
4
Using the U.S.
Supreme Court Data Base, the authors break down the parties before the
Court into ten categories, one of which is "poor individual."'" They
examine the overall success rate of each group and its success rate as a
respondent to control for the Court's relative propensity to reverse rather
than affirm. Table 1 summarizes the findings.'
45
The first column reflects
that category of party's overall success rate. The second column shows that
category's "net advantage," which is the probability of its success minus the
probability of its opponents' success.
138. EPP, supra note 102, at 203.
139. Graber, supra note 13, at 787. Susan Lawrence likewise notes that poverty litigation
has produced some benefits but only in the context of "procedural fairness" and not in the promotion
of a policy of income redistribution. See LAWRENCE, supra note 106, at 150-51.
140. See Graber, supra note 13, at 787-88.
141. In fact, the substantive benefit of litigation on behalf of the poor is unclear. The
sources cited by Mark Graber are casual projections, not rigorous estimates. See id. I show later
that constitutional provisions do not appear to help the poor much. See Table 2, infra.
142. See, e.g., R. SHEP MELNICK, BETWEEN THE LINES: INTERPRETING WELFARE RIGHTS
37 (1994) (observing that statutory interpretation "seems more cautious, more pragmatic, and
more politically prudent than explicit constitutional innovation" and "avoids open and prolonged
confrontation with elected officials"). The overall historic shortcomings of the litigation process
have been demonstrated by Hershkoff. See generally Hershkoff, supra note 11.
143. See Reginald S. Sheehan et al., Ideology, Status, and the Differential Success of Direct
Parties Before the Supreme Court, 86 AM. POL. Sdc. REV. 464 (1992).
144. Id. at 465.
145. See id.
Table 1
Net Advantage of Parties
Type of Party Overall Success Rate Net Advantage
(Percent)
Poor Individual 31.2 -32.0
Minorities 55.6 9.4
Individual 42.9 -17.4
Unions 53.9 2.6
Small Business 42.7 -17.7
Business 44.3 -11.9
Corporations 38.6 -19.3
Local Government 45.8 -6.3
State Government 54.1 11.2
Federal Government 67.3 35.9
Poor individuals clearly are the least successful litigants before the
Court, which bodes ill for their ability to achieve positive rights. In fact,
the situation is somewhat worse than portrayed in Table 1, because positive
rights cases will pit poor individuals against the government. When poor
individuals are matched against the federal government in litigation, the
poor individuals have a "net advantage" of -52.4.146 Thus, their prospects of
success are minimal.
47
The authors of the study note that the ideology of the Justices is highly
significant in the percentage success of parties and that liberal justices are
far more likely to rule for individuals than conservative Justices (though
they report no separate data for poor individuals by Justice ideology).
4
This finding indicates that individuals might succeed in enforcing positive
rights before some liberal Court.
149
Unfortunately, even very liberal Courts
do little to promote the economic welfare of the poor.
Of liberal renown, the Warren Court had its opportunity to find
positive rights in the Constitution and to advance them. In the Goldberg
146. Id. at 466.
147. In addition, the Court has been empirically less likely even to grant certiorari in claims
brought by poor individuals. See SMITH, supra note 106, at 91.
148. See Sheehan et al., supra note 143, at 468. The significance of ideological decision
making is addressed infra notes 274-290 and accompanying text.
149. When a Supreme Court seems favorable, such as the Warren Court did, the poor might
succeed even independent of counsel expertise. See LAWRENCE, supra note 106, at 100-01
(noting that counsel expertise was not critical to the success of the poor before the Supreme Court
during the Warren Court era).
48 UCLA LAW REVIEW 85 7 (200 1) 886
decision and in Shapiro v. Thompson,
50
the Court came close to establishing
a positive right to some government benefits. The Justices could not create
a majority, though, that recognized such a right.'
5
' Perhaps the politics of
rights enforcement, discussed in the following part, caused the Court to
come up short. Perhaps the nature of "classical liberal ideology," which
recognizes a "disjunction between civil or political equality and economic
inequality," explains the "Warren Court's unwillingness either to consti-
tutionalize a right to welfare or to treat the poor as a suspect classification
based on economic class."'
52
Earl Warren himself was not very responsive to
claims of the poor for public assistance.' Even the liberal ideology of the
Warren Court failed to provide the poor with economic rights. That Court
might have been sui generis"' and possibly more liberal than any other
court
that will follow.
55
B. The Politics of Rights Enforcement
To some, positive rights are a "horror," because their enforcement
raises the spectre of "the courts running everything-raising taxes and decid-
ing how the money should be spent."'
56
This outcome might constitute
the agenda advanced by the proponents of such rights. Regardless, both the
critics and the proponents often misconceive the likely consequences of posi-
tive rights recognition, namely that positive rights would not be aggressively
enforced.
Although formally independent, the federal courts rely upon the
elected branches of government in a number of ways. Congress might
employ vigorous criticism of rulings and threaten impeachment for judges
150. 394 U.S. 618 (1969). Shapiro v. Thompson involved the right of states to deny welfare
benefits to those who recently moved into the state. The Court decided the case as a right to
travel rather than a right to benefits. Philip Kurland declared that the Court came "so close to
creating a constitutional right to welfare assistance." Philip B. Kurland, The Judicial Road to Social
Welfare, 48 SOC. SERV. REV. 481, 490 (1974).
151. See Elizabeth Bussiere, The Failure of Constitutional Welfare Rights in the Warren Court,
109 POL. SCI. Q. 105, 128 (1994).
152. Id. at 109.
153. See HAROLD J. SPAETH, AN INTRODUCTION TO SUPREME COURT DECISION MAKING
65 (rev. & enlarged ed. 1972) (noting Chief Justice Earl Warren's receptivity to criminal appeals
by the poor but lack of support for "an indigent's right to receive welfare benefits").
154. See Cross, supra note 122, at 1570 n.246 (suggesting that the Warren Court "may have
been sui generis," and that this "confluence of unique factors of the era [is] unlikely to be replicated").
155. Such a Court is certainly not on the current horizon. See Graber, supra note 13, at 734
(observing that "[n]o Justice on the present court ... even hints that the Constitution might
protect welfare rights" and that "no jurist who supports constitutional welfare rights is likely to be
appointed to the Court in the near future").
156. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 169 (1999).
888 48 UCLA LAW REVIEW 857 (2001)
that arouse their ire.
' 57
Congress might legislate jurisdiction limitations or
otherwise hamper the ability of courts to act. The legislature also controls
the resources of the judiciary, including salary increases, and can use this
power as a lever against judicial opinions.' The federal courts "are politically
vulnerable institutions that have powerful reasons to be cautious in
imposing restrictions on the other branches of the national government......
While "judges are not elected, they are rarely oblivious to electoral
politics nor are they immune to democratic influences."'
6
Because of this
dependence, the "Supreme Court has never been able to sustain significant
independence from the demands of ordinary politics in the past.
1 61
Its deci-
sions, "historically, have seldom strayed far from what was politically
acceptable.'
62
Judith Resnik suggests that the dependence on Congress for
resources has transformed the judiciary into something more like an agency
163
than a coequal branch of government.
It is futile to rely on the judiciary to provide basic welfare for the
disadvantaged, if the political branches are unwilling to do so. In Robert
157. For a review of such attacks, see Stephan 0. Kline, Judicial Independence: Rebuffing
Congressional Attacks on the Third Branch, 87 KY. L.J. 679 (1998-1999). While actual judicial
impeachments are rare, threats are more common, and the threats by themselves may suffice to
intimidate the judiciary, preventing courts from seriously threatening legislative preferences and
prerogatives. This was the import of a 1997 letter from the deans of more than one hundred law
schools. See id. at 719 (noting that such threats may have a "deterrent effect" on judicial rulings);
see also DAVID BARTON, IMPEACHMENT: RESTRAINING AN OVERACTIVE JUDICIARY 53 (1996)
(suggesting that "just the process of impeachment serves as a deterrent"). Representative Tom
DeLay has made impeachment threats because he believes that judges "need to be intimidated."
Joan Biskupic, Hill Republicans Target 'Judicial Activism,' WASH. POST, Sept. 14, 1997, at Al
(quoting Representative DeLay).
158. See Frank B. Cross, Realism About Federalism, 74 N.Y.U. L. REV. 1304, 1317 (1999)
(observing that "federal judges remain dependent on Congress for their salaries, benefits, and
support resources" and that such "power of the purse is notoriously influential"); William F.
Shughart 11 & Robert D. Tollison, Interest Groups and the Courts, 6 GEO. MASON L. REV. 953, 967
(1998) (suggesting that Congress's "power to determine judges' salaries and judicial budgetary
appropriations assists it in controlling judicial behavior").
There is empirical evidence demonstrating the association between judicial decisions and
congressional resource provision. Eugenia Toma has shown that as the Supreme Court's opinions
stray from congressional preferences, less money will be appropriated for the courts. The Court
then responded to that signal and modified its decisions accordingly. See Eugenia F. Toma, A
Contractual Model of the Voting Behavior of the Supreme Court: The Role of the Chief Justice, 16 INT'L
REV. L. & ECON. 433, 433-34 (1996).
159. William N. Eskridge, Jr. & John Ferejohn, The Elastic Commerce Clause: A Political
Theory of American Federalism, 47 VAND. L. REV. 1355, 1362 (1994).
161. GIRARDEAU A. SPANN, RACE AGAINST THE COURT: THE SUPREME COURT AND
MINORITIES IN CONTEMPORARY AMERICA 2 (1993).
163. Judith Resnik, Trial as Error, Jurisdiction as Inquiry: Transforming the Meaning of Article
III, 113 HARV. L. REV. 924, 1011 (2000).
889
Dahl's classic analysis, the Court's constitutional decisions "are never for
long out of line with the policy views dominant among the lawmaking
majorities of the United States."'" It is "hard to find a single historical
instance when the Court has stood firm for very long against a really clear
wave of public demand.""'
6
While our courts exhibit some independence in
their decisions (such as the First Amendment's flag burning ruling),
166
this
does not mean that they will confront the other branches on issues of great
practical importance.167 The interaction of the judiciary with the political
branches makes the courts reluctant to countermand aggressively the prefer-
ences of the legislature and the executive.'
6
1 They may fear that the
cooperation of those branches could "be jeopardized by excessively controver-
sial or far-reaching policy decisions.'
69
Commanding a major redistribution
of income surely qualifies as a controversial and far-reaching decision that
could jeopardize the Court's standing.
Courts thus avoid involving themselves in matters fundamental to the
enforcement of positive rights. The Supreme Court states that "the intracta-
ble economic, social, and even philosophical problems presented by public
welfare assistance programs are not the business of this Court."'
70
Holmes
and Sunstein acknowledge that "the level of protection welfare rights
receive is determined politically, not judicially, whether such rights are
officially constitutionalized or not.'' Courts "necessarily tread lightly in the
area of positive rights because of the obvious dangers posed to legislative pre-
rogatives and governmental flexibility."'
7
The LSP poverty litigation con-
firms this conclusion. As discussed above, the Supreme Court supports
poverty litigation when its goals are consistent with those of the dominant
164. See Robert A. Dahl, Decision-Making in a Democracy:: The Stpreme Court as a National
Policy-Maker, 6J. PUB. L. 279, 285 (1957).,
165. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 208 (2d ed. 1994).
166. See Texas v. Johnson, 491 U.S. 397 (1989) (striking down as unconstitutional rules
preventing flag burning).
167. See LOUIS FISHER, CONSTITUTIONAL DIALOGUES: INTERPRETATION AS POLITICAL
PROCESS 13 (1988) (suggesting that the Court may be activist in an area such as school prayer so
long as it restrains itself in more politically central areas, such as economic issues).
168. Alternatively, the courts may not strategically fear institutional retaliation but may
simply commonly concur with other institutions. See, e.g., Michael J. Klarman, Rethinking the
Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 16 n.72 (1996) (observing that the
"Court strays relatively little from majoritarian impulses because the justices are embedded in
majoritarian culture"). In either event, one cannot rely on the courts to advance ends rejected by
the elected branches of government.
170. Dandridge v. Williams, 397 U.S. 471, 487 (1970).
172. Shaffer, supra note 73, at 738.
democratically governing coalition.
173
Even when poverty lawyers win, the
Court is "reluctant to preempt the political process" and "refuse[s] to
restructure wealth distribution by judicial fiat."
' 174
As Archibald Cox suggests,
the "Supreme Court has backed away from applying the Equal Protection
Clause fully to issues of wealth discrimination because the Court is afraid of
confrontations with other branches of government.""
17
Courts understand that requiring legislatures to provide minimal levels
of subsistence for all Americans encroaches upon the jealously guarded
"power of the purse." They could compel legislators to make politically
difficult choices about raising taxes or cutting preferred programs, which
could anger the legislators and cause them to deploy their power over the
courts. Chris Smith notes that the "Court's reluctance to consider the
existence of a right to housing is understandable when considered in light
of the significant expense upon government that would accompany such
a judicial policy."'
76
Frank Michelman acknowledges that "courts of law,
for understandable reasons (including a decent respect for democracy),
shrink from the task of directly and broadly 'enforcing' such obligations
by second-guessing political decisions about a wide range of budgetary and
administrative matters."'
77
The judiciary's assumption of the "power of the
purse will, in the final analysis, extend no further than a democratic decision
permits."'
78
Judges are not likely to advocate positive rights unless it "would
resonate with a broad spectrum of the public or with politically powerful
elites."'
79
Judges also typically "bring to their work the perceptions of an upper
middle class, educated, largely male, and largely white elite."'
' s
Their "afflu-
ence and elite political connections can provide them with experiences and
viewpoints about society different from those possessed by less affluent
citizens whose lives are affected by judges' decisions.''. Historically,
"Supreme Court justices appear to believe that poor people are responsible
173. See supra notes 164-169 and accompanying text.
174. LAWRENCE, supra note 106, at 126.
176. Id. at 112.
177. Michelman, supra note 13, at 199.
178. Gerald E. Frug, The Judicial Power of the Purse, 126 U. PA. L. REV. 715, 794 (1978).
179. Diller, supra note 13, at 1412.
180. John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence,
72 S. CAL. L. REV. 353, 369; see also SPANN, supra note 161, at 156 (observing that the "Supreme
Court is mostly white and mostly male, and as an institution it is mostly nonresponsive to fresh or
innovative political thinking").
181. SMITH, supra note 106, at 9. Many judges are wealthy individuals and even those who
have risen out of poverty "may lose touch with social forces affecting poor people in society." Id.
at 9-10.
890
48 UCLA LAw REVIEW 85 7 (200 1)
for their own status in society and could readily alter their membership
among 'the poor."'
182
The above characteristics imply that courts will not
fight the elected branches to entrench positive rights.
Even if courts elect to fight the political branches and demand vigor-
ous enforcement of a positive right, the outcome remains uncertain. When
courts rule for "politically powerless people, such as the poor, the court's
decision may be merely symbolic or supportive because it lacks the ability to
implement the decision effectively."
' 183
Cass Sunstein observes: "Courts lack
the tools of a bureaucracy. They cannot create government programs.
They do not have systematic overview of government policy. It is,
therefore,
unrealistic
to expect courts to enforce many positive rights."''
4
A welfare system compelled by positive rights requires such a bureauc-
racy."' Rosenberg notes that courts lack the attributes of an effective
bureaucracy, as they "go from case to case in highly disparate fields," which
"means that area expertise and planning, often crucial in issues involving
significant social reform, are seldom present, making it uncertain that the
remedy will be appropriate to the problem."'" Of course, courts have expe-
rience in supervising government bureaucracies, under the Administrative
Procedure Act'
87
and other statutes. Their record of supervision is not such a
good one, however." Moreover, existing supervision is statutory in nature,
not constitutional, and it generally does not involve compelling the
creation of programs.
'
In his lamentation on the fate of public interest lawyering, Steve
Berenson notes that "[d]espite their apparent successes, many of the
achievements of these legal campaigns have proven illusory or have been
reversed in recent decades."'" The Court clearly realizes the need for other
182. Id. at 88.
183. Id. at 89. Some may hope that symbolic decisions could be used to activate the public,
but the "link between judicial decisions and political mobilization has produced few benefits for
the poor." Id. at 98. The poor lack the resources to capitalize upon such victories. See id.
184. Sunstein, supra note 13, at 229.
185. See KELLEY, supra note 14, at 27 (noting that a "complex set of regulations is required
to define the entitlements of people, depending on the diverse circumstances of their lives" and
that a "large bureaucracy is required to enforce those regulations").
187. ch. 324, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. 551-559 (1994)).
188. For a criticism of the consequences of judicial review of administrative action, see
Frank B. Cross, Pragmatic Pathologies of Judicial Review of Administrative Rulemaking, 78 N.C. L.
REV. 1013 (2000). While such review is aimed at improving the quality of administrative rules, it
has had the effect of producing ineffective rules of poorer quality. See id. at 1044-57.
189. Courts may occasionally compel the existing bureaucracy to adopt a program, through
agency-forcing litigation. See, e.g., John D. Graham, The Failure of Agency-Forcing: The Regulation
of Airborne Carcinogens Under Section 112 of the Clean Air Act, 1985 DUKE L.J. 100.
190. Berenson, supra note 132, at 48.
891
The Er-ror of Positive Rights
institutions to help implement its directives. This awareness influences the
"willingness of the Court to take on certain cases and may limit the reme-
dies the Court applies in cases it does decide."'' Judges "may restrain their
own decision-making power because they believe the judiciary should play a
limited role in policy making or because they perceive that they lack the
power to enforce broad policy decisions.'
' 92
When the Court takes a bold
stand, as in Brown v. Board of Education,' it often has limited success. For
instance, desegregation occurred only after the president and Congress
weighed in.'
94
Even today, the fundamental objective of Brown might have
had limited success-"many urban school systems remain highly segregated,
and courts are increasingly unwilling to require the extensive reforms that
would be necessary to achieve fully the promise of Brown."'
95
Books recount the failure of the courts to produce social change
through their decisions,
96
the best known of which, by Gerald Rosenberg,
examines some of the, most prominent Supreme Court decisions of the
twentieth century, including Brown and Roe v. Wade.'
9
'
He concludes that courts "can almost never be effective producers of
significant social reform."'
98
In the case of Brown, he statistically
demonstrates that it was ineffective so long as "political leadership at the
national, state, and local levels was arrayed against civil rights, making
implementation of judicial decisions virtually impossible."'
99
Today, "most
poverty lawyers are skeptical of the original core premise of the legal serv-
ices program-that legal representation can play a major role in ending
poverty in America."" Even advocates of positive rights observe that "it is
191. STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS
127 (1996).
192. SMITH, supra note 106, at 95-96; see also Cross, supra note 122, at 1579-85 (observing
that judicial acknowledgment of their limited powers of implementation create incentives for
judicial self-restraint).
193. 347 U.S. 483 (1954).
194. See Michael McCann, How the Supreme Court Matters in American Politics: New
Institutionalist Perspectives, in THE SUPREME COURT IN AMERICAN POLITICS: NEW
INSTITUTIONALIST INTERPRETATIONS 63, 64 (Howard Gillman & Comel Clayton eds., 1999);
see also LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 65, 234 (2000)
(discussing the limits of the implementation of Brown and how Southern senators gave up their
fight against the Court after the passage of the Civil Rights Act).
195. Berenson, supra note 132, at 48.
196. See LARRY D. BARNETT, LEGAL CONSTRUCT, SOCIAL CONCEPT: A
MACROSOCIOLOGICAL PERSPECTIVE ON LAW (1993); ROSENBERG, supra note 97.
197. 410 U.S. 113 (1973).
198. ROSENBERG, supra note 97, at 338; see also SUNSTEIN, supra note 13, at 146 (reporting
that "[j]udicial decisions are often surprisingly ineffective in bringing about social change").
892
48 UCLA LAw REVIEW 85 7 (200 1)
fruitless and even dangerous to look to the courts for the first and last word
on any matter concerning the vindication of fundamental societal values."
2
'
Courts lack not only the political power to compel compliance with
controversial decisions but also the institutional capacity to implement
their opinions. In areas such as welfare policy, the "capacity of the courts to
review governmental action is simply dwarfed by the capacity of govern-
ments to produce such action."
' 2
Judicial resources are limited, and the
courts have to deal with a broad range of other issues. Moreover, the "adju-
dicative process" itself is limited and "small relative to the political and
market processes and grows relatively smaller every year.""
III. THE EVIDENCE ON POSITIVE RIGHTS
An empirical examination demonstrates that courts have not been
very active in enforcing state constitutional positive rights and that the
poor appear to be no better off in the presence of such rights.
Helen Hershkoff provides us with an extensive review of state court
actions implementing positive rights.
2
"
4
She provides a taxonomy of cases,
ranging from Type I ("cases that challenge the state's discretion to deviate
from laws and regulations that define who is needy for purposes of relief"'
2 5
)
in which courts have more often acted,
2
" to Type III (cases that "involvel
the state's discretion to define the package of assistance provided to needy
individuals
20 7
) in which courts have been deferential and inactive.
2
" This
scheme is not terribly surprising, because the latter claims are more contro-
versial and costlier to the state. The failure of the courts in the crucial
201. Scott & Macklem, supra note 13, at 6-7.
202. NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW,
ECONOMICS, AND PUBLIC POLICY 252 (1994).
203. Id. at 268.
204. See Hershkoff, stpra note 11.
205. Id. at 1146.
206. An example of a Type I claim would be Tucker v. Toia, 371 N.E.2d 449 (N.Y. 1977), in
which the court held that the state could not impose evidentiary requirements on public
assistance programs that were unrelated to need. Even in Type I claims, New York courts have
not ensured assistance, as "many indigent people in New York continue to be denied assistance
because they cannot produce specific documents to prove their eligibility." Hershkoff, supra
note 11, at 1147 n.83.
207. Hershkoff, supra note 11, at 1149.
208. The contrasting types of claims are discussed in Hershkoff, supra note 11, at 1146-52.
An example of a Type III case would be the decision in Bernstein v. Toia, 373 N.E.2d 238, 244
(N.Y. 1977), in which the court held that the state constitution does not "mandate that public
assistance must be granted on an individual basis in every instance." The court in Bernstein
emphasized that the constitutional positive right extended only to the "impermissible exclusion of
the needy from eligibility for benefits, not to the absolute sufficiency of the benefits distributed to
each eligible recipient," essentially gutting the content of the positive right. Id.
894 48 UCLA LAW REVIEW 857 (2001)
Type III cases demonstrates the ineffectiveness of positive rights. State
courts generally have "been reluctant to issue decisions or order relief
that has the potential to cause confrontation with the other branches of
government.,
2
19
Hershkoff focuses on judicial interpretations in New York, but her
discussion applies equally well to the reluctance of other state judiciaries
to enforce positive rights, even when expressly found in state constitu-
tions.
210
Indeed, New York's judiciary has been more aggressive in enforcing
positive rights than the other states with comparable provisions.21 While
Montana's constitution requires the legislature to provide economic
assistance to the needy, its court holds it does not amount to a "fundamen-
tal right" of individuals. The fundamental thrust of Hershkoff's article
is that state judiciaries are insufficiently vigorous in their protection of
welfare rights and should play a greater role. This is plausibly explained by
the discussion of the economics and politics of rights enforcement in Part
II.A.-B .
While judiciaries generally have been deferential, advocates of positive
rights have gained some victories in state courts. Those courts have not
enforced positive rights to the degree that Hershkoff finds appropriate, but
they do constitute an accomplishment by the advocates of such rights. For
example, the New York courts have held that a city grant of school trans-
portation expenses was constitutionally insufficient,
2
"
4
and a few victories
have been won in other states as well."
5
Perhaps these limited victories
have done some good for the poor.
209. Diller, supra note 13, at 1420-21.
210. See, e.g., Moore v. Ganim, 660 A.2d 742, 755 (Conn. 1995) (declaring that the court's
"reluctance to recognize affirmative governmental obligations based on our state constitution is
consistent with the holdings of the courts of sister states").
211. See Graber, supra note 13, at 818 n.343 (finding that "the New York bench has been
particularly solicitous of welfare rights"); Sarah Ramsey & Daan Braveman, "Let Them Starve":
Government's Obligation to Children in Poverty, 68 TEMP. L. REV. 1607, 1624 (1995) (reporting
that "New York has been the most aggressive in developing an independent state constitutional
analysis of welfare issues").
212. See Butte Cmty. Union v. Lewis, 712 P.2d 1309, 1311 (Mont. 1986). The court
interpreted the provision as simply authorizing heightened scrutiny under an equal protection
analysis. See id.
213. See, e.g., Feldman, supra note 13, at 1060 (describing how state courts have been
"reluctant to enforce positive constitutional rights" because "such judicial action unduly intrudes
into the province of the legislature").
214. See Fulton v. Krauskopf, 484 N.Y.S.2d 982 (N.Y. Sup. Ct. 1984).
215. See, e.g., Mass. Coalition for the Homeless v. Sec'y of Human Servs., 511 N.E.2d 603
(Mass. 1987) (requiring the secretary to notify the legislature when Aid to Families with
Dependent Children (AFDC) funds were insufficient to support housing for parents); L.T. v. N.J.
Dep't of Human Servs., 633 A.2d 964 (N.J. 1993) (holding that state agencies had a duty to
provide shelter for the homeless).
Moreover, even if state courts did not consistently and vigorously
enforce positive rights, that would not, by itself, prove that the rights were
valueless. The presence of a constitutional command might provoke
the legislature to fulfill its duty and to satisfy those rights."
6
Alternatively,
the threat of judicial review might convince the legislators to fulfill positive
rights, even against their will, because they seek to avoid judicial repri-
mand. The courts' anticipated reactions could have a deterrent effect on
the legislature, even if the Court actually does not act.
217
A positive right
could possibly have a real effect on policy even absent judicial decisions
enforcing its terms."' This effect has not been demonstrated, however.
The practical effect of positive rights can be empirically evaluated.
Hershkoff lists nine states that have constitutional positive rights
comparable to those of New York."
9
These other states are Alabama,
Alaska, California, Kansas, Michigan, Missouri, Montana, North Carolina,
and Wyoming.
22
Some of these constitutional provisions do not approach
positive rights, though, as the California constitution simply empowers the
legislature to provide for public relief rather than commanding it,
22
' and the
Missouri constitution simply declares welfare to be a "primary public con-
cern."
222
The constitutions of Alabama, Alaska, Kansas, Montana, and
Wyoming, however, express the positive rights as a clear duty of govern-
ment, using words such as "shall provide."
' 223
The strongest of these provi-
sions is probably that of Alabama, which dictates that it "shall be the duty
of the legislature to require the several counties of this state to make ade-
quate provision for the maintenance of the poor.,
224
In at least New York
216. See Herman Schwartz, Do Economic and Social Rights Belong in a Constitution?, 10 AM.
U. J. INT'L L. & POL'Y 1233, 1239 (1995) (suggesting that "[slomething that is considered a
conditionally mandated legislative obligation is likely to have a lot more clout in the political
debate over budgeting priorities than something that is completely discretionary with the
legislature"). Mark Graber calls this the "aspirational dimension of American constitutionalism."
Graber, supra note 13, at 795.
217. Under this theory, actual judicial decisions are unnecessary, because the legislature can
anticipate the nature of those decisions and conform to them ex ante. This may even have
occurred in our context. "State officials in New York during the 1960s often avoided litigation by
providing or restoring benefits to persons who threatened lawsuits." Graber, supra note 13, at 788.
218. See Glendon, supra note 13, at 530 (suggesting that "the constitutional status of social
and economic rights seems likely to have synergistically reinforced welfare commitments by
influencing the terms, the categories, and the tone of public, judicial, and legislative deliberation
about rights and welfare").
219. See Hershkoff, supra note 11, at 1140 n.44.
220. See id.
221. See CAL. CONST. art. XVI, 11.
222. Mo. CONST. art. IV, 37.
223. See ALA. CONST. art. IV, 88; ALASKA CONST. art. VI, 5; KAN. CONST. art. VII,
4; MONT. CONST. art. XII, 3; WYO. CONST. art. VII, 20.
224. ALA. CONST. art. IV, 88.
895
and Alabama, the rights were meant to be judicially enforceable."
5
The
effect of these constitutional provisions can be tested by comparing these
states with others that lack any positive constitutional rights for minimal
subsistence.
The real-world effect of positive rights can be seen in Table 2. This
table compares the situation in the six states with the strongest positive
constitutional rights to public assistance with the national average. Col-
umn 1 lists the poverty rate for the state in 1990.226 Column 2 sets forth the
percentage of the state's population receiving public assistance in 1989.227
Column 3 presents the average monthly payment per family under the Aid
to Families with Dependent Children (AFDC) program for each state in
1989.228
Table 2
Poverty and State Positive Rights
State 1 (Percent) 2 (Percent) 3
National Average 13.5 6.1 $383
New York 14.3 7.6 $530
Alabama 19.2 6.3 $114
Alaska 11.4 4.6 $619
Kansas 10.3 3.9 $349
Montana 16.3 4.6 $356
Wyoming 11.0 3.4 $307
From column 1 it is clear that states with positive rights have not
cured their poverty problems or even noticeably reduced them. The aver-
age poverty problem is about the same in these states as the national aver-
age. Columns 2 and 3 reveal that the states with positive rights also are not
making a particularly great effort to resolve their poverty problems. They
neither extend public assistance more broadly nor offer it more generously
225. See Feldman, supra note 13, at 1076 (suggesting that constitutional histories
demonstrate this intent).
226. The data for this column are taken from the census, U.S. BUREAU OF THE CENSUS,
State Rankings: Persons Below Poverty Line, 1999 STATISTICAL ABSTRACT OF THE UNITED
STATES (1999), available at http://www.census.gov/statab/ranks/rankl9.txt (last modified Feb. 7,
2000).
227. The data for this column are from BUREAU OF THE CENSUS, U.S. DEP'T OF
COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 372 (111th ed. 1991).
228. Id. at 373.
896
than do states without such rights. Indeed, the states with positive rights
are, if anything, worse than the national norm in these efforts.
The evidence from the states thus does not provide support for the
case for recognition of positive rights. Those states with constitutions pro-
viding such rights do no better at alleviating poverty than states lacking
such rights. The presence of constitutional rights does not seem to moti-
vate the legislature to provide better for the poor, either as a constitutional
obligation or in order to avoid judicial dictates. Thus, the empirical evi-
dence does not support the promise of positive rights.
The state experience does not conclusively demonstrate the inevitable
failure of positive rights, as it is not a perfect proxy for predicting the federal
recognition of constitutional positive rights. Most states do not have judges
appointed for a lifetime, and advocates of positive rights suggest that such
independence is necessary for the enforcement of positive rights.
229
How-
ever, this very political insulation might render the federal courts a poor
choice for enforcing such rights.
23
In other ways, state courts perhaps can
better enforce the rights than the federal government.
2
' Graber suggests
that the state court context seems "particularly promising" if constitutions
contain explicit textual concern for the poor.
232
Moreover, state consti-
tutional rights claims now appear in the federal courts with some frequency.
233
Finally, the critique of the state study reflects a naive vision of the federal
judiciary, as discussed below.' Consequently, the state experience consti-
tutes a fairly reliable predictor of the effect of federal positive constitutional
rights.
229. Of course, the independence of the federal judiciary is also limited as discussed above in
connection with the politics of rights enforcement. See supra Part II.B.
230. See Neuborne, supra note 65, at 891 (noting 'that "[i]f wealth-shifting there is to be,
ideally it should be done by a classically democratic body," rendering the federal courts "poor
candidates for the job of positive rights enunciators"). Burt Neuborne notes that the courts' lack
bf a"democratic imprimatur" makes them reluctant to aggressively enforce positive rights. Id. at
899-900; see also KOMESAR, supra note 202, at 251 (reporting judges' views that "it would be
illegitimate for the great part of social decision-making to be made by unelected and largely
unremovable judges rather than by legislatures").
231. See, e.g., Adam S. Cohen, More Myths of Parity: State Court Forums and Constitutional
Actions for the Right to Shelter, 38 EMORY L.J. 615 (1989) (providing a variety of reasons why state
courts are better suited than federal courts for the enforcement of positive rights); Christine
Durham, Remarks on the Influence of International Human Rights Law on State Courts and State Consti-
tutions (Mar. 28, 1996), 90 AM. SOC'Y INT'L L. PROC. 259, 261 (Scott T. Johnson, reporter)
(1996) (suggesting reasons why state courts are better suited to enforce positive rights than are
federal courts).
232. Graber, supra note 13, at 791.
233. See Robert A. Schapiro, Polyphonic Federalism: State Constitutions in the Federal Courts,
87 CAL. L. REV. 1409, 1412 (1999).
234. See supra Part II.
The state experience of limited judicial enforcement of positive rights
resembles the international experience. Most foreign constitutions contain
explicit positive rights, such as a right to work, to medical care, or to mini-
mum subsistence.
"
' Yet, as applied, "[n]o constitution recognizing the rule
of law has yet actually succeeded in practice in turning away from the clas-
sical negative understanding of fundamental rights."
' 236
Nor is there any
clear association between the existence of such rights and the nature of
relevant government policy.
237
The Supreme Court of Canada has generally
been fairly aggressive in implementing the country's 1982 Charter of Rights
and Freedoms,
238
but it has been quite passive in enforcing welfare rights.
39
There is, in short, "no substantial evidence that positive rights, when
included in constitutions or similar documents, have materially improved
anyone's life."
2
"
Hershkoff implicitly recognizes the past failures of positive rights in
state constitutions and pleads that those rights be judicially activated. One
should not simply lament the lack of judicial enforcement of positive con-
stitutional rights without pausing to reflect why this might be so. Perhaps
there are institutional reasons, both economic and political, why judges
235. See Glendon, supra note 13, at 524 (noting that the U.S. Constitution is "anomalous"
in not including such provisions).
236. Currie, supra note 56, at 889 (citing Ernst Forsthoff, Begriff und Wesen des sozialen
Rechtsstaates, in 12 VEROFFENTLICHUNGEN DER VEREINIGUNG DER DEUTSCHEN STAATSRECHTS-
LEHRER 8, 23-27 (1954)) (alteration in original); see also Brigit Toebes, Towards an Improved
Understanding of the International Human Right to Health, 21 HUM. RTs. Q. 661, 661 (1999)
(observing that "[allthough it is often asserted that both sets of rights are interdependent,
interrelated, and of equal importance, in practice, Western states and NGOs, in particular, have
tended to treat economic, social, and cultural rights as if they were less important than civil and
political rights").
237. See Glendon, supra note 13, at 531 (noting a lack of correlation between the existence
of such rights and the relative resources that European governments devote to social assistance).
238. See generally F.L. MORTON & RAINER KNOPFF, THE CHARTER REVOLUTION AND THE
COURT PARTY (2000) (discussing this activism and critiquing it).
239. See, e.g., Darrow & Alston, supra note 13, at 505 (noting that the Canadian court "has
been unresponsive to claims for economic, social and cultural rights"); Martha Jackman, Poor
Rights: Using the Charter to Support Social Welfare Claims, 19 QUEEN'S L.J. 65, 66-67 (1993)
(complaining that, although the Charter provides a solid basis for social welfare claims, the courts
have not enforced this vigorously); Judith Keene, Claiming the Protection of the Court: Charter
Litigation Arising from Government "Restraint," 9 NAT'L J. CONsT. L. 97, 109 (1998) (describing
the passivity of the Canadian Supreme Court on welfare rights); Andrew Petter, The Politics of the
Charter, 8 SuP. CT. L. REV. 473, 479-502 (1986) (noting that the nature of the judicial system
means that the positive rights contained in the Canadian Charter had failed to be effective).
240. Sunstein, supra note 13, at 230; see also Osiatynski, supra note 13, at 249 (reporting
that the "most developed 'welfare state' social programs have been created in countries where the
constitution either neglects social and economic rights altogether (Sweden, the United States) or
declares as a general goal the implementation of social policy by the state (Federal Republic of
Germany, France)").
898
48 UCLA LAW REViEW 85 7 (200 1)
have done little to enforce those positive rights. Such reasons are not likely
to be overcome by a theoretical argument, however persuasive.
It is also significant that the federal courts have not themselves yet
recognized and enforced positive rights. While I have argued that the Con-
stitution does not contain positive rights, a creative and determined judici-
ary could surely have found a basis for them, as they have enforced other
less-than-explicit rights. The Court has found a right to marital privacy in
a "penumbra" and a consequent right to abortion.
24 "
' Surely, a penumbra
could have been found to support positive rights to minimum government
assistance."' Graber has shown that the positive right to minimum subsis-
tence could be found in the Constitution, using the same theories as the
abortion cases."' In its vigor to enforce states' rights under the Eleventh
Amendment, the Court has seemingly ignored the plain language of that
provision.
2
" An aggressive Court could easily have recognized and enforced
some positive rights even within the context of indeterminate con-
stitutional language.
245
Many advocates for positive rights have put forth
241. See Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965).
242. The generality of constitutional text means that, "[like it or not, our constitutional law
is the law of penumbras and emanations." Kozinski & Volokh, supra note 17, at 1656. In this
context, the Court surely could have found positive rights within the Constitution had it so
desired. See, e.g., Bitensky, supra note 11, at 553 (writing that "[dioctrines interpreting the
Constitution are rich with possible theoretical bases for asserting an unenumerated affirmative
right to education").
243. See Graber, sura note 13, at 753 (finding that "[w]elfare is at least as strong a
candidate as abortion for meeting the Supreme Court's test for fundamental freedoms"). Graber
explains that "liberal constitutional theorists who maintain that the federal judiciary should
protect abortion but not welfare cannot claim that the Constitution protects the general principle
underlying abortion, but not welfare." Id. at 763.
244. Even while recognizing the "truism" that the Eleventh Amendment only barred certain
suits against states in federal courts, the Supreme Court has barred cases in state court as well,
because of structural constitutional features not expressed textually. See Alden v. Maine, 527 U.S.
706 (1999). Activist conservatives on the Court have found a "penumbra" in the Eleventh
Amendment that protects federalism and state sovereign immunity. See Fla. Prepaid
Postsecondary Educ. Expense Bd. v. Coll. Say. Bank, 527 U.S. 627, 665 (1999) (Stevens, J.,
dissenting) (arguing that the dimensions of the "judge-made doctrine of sovereign immunity" are
"defined only by the present majority's perception of constitutional penumbras rather than
constitutional text"); Resnik, supra note 163, at 1004 (noting reliance. on "the penumbra of the
Eleventh Amendment, in the vague text of the Tenth, or in a more general but non-text-specific
constitutional structure");.
245. See, e.g., Charles L. Black, Jr., Further Reflections on the Constitutional Justice of
Livelihood, 86 COLUM. L. REV. 1103, 1111 (1986).
I believe there has been no Supreme Court Justice in this century who has not voted to
support some right that could on no commonsense basis be said to be named in the
Constitution; the great majority have cast such votes in some numbers over a wide range.
I should think well over half the cases in any good casebook concern the often successful
invocation of unnamed rights, or of other norms without evident textual basis.
900 48 UCLA LAW REVIEW 857 (2001)
detailed roadmaps for the courts to do just this. Edward Sparer, an advocate
of positive rights to welfare, and others have embarked on a litigation pro-
gram to get the Supreme Court to recognize such rights, and his that effort
has failed.
246
The interpretive flexibility of the Court surely enables it to find some
constitutional guarantee of positive rights, if it so desires. In the 1970s,
Laurence Tribe predicted that "a doctrine will ultimately emerge that
recognizes under the fifth and fourteenth amendments constitutional rights
to decent levels of affirmative governmental protection in meeting the
basic human needs of physical survival and security.
'2
1
7
The conservative
Ralph Winter similarly believed that the law was "well along the road
toward substantive equal protection as a vehicle of income
redistribution.
248
Yet, it has not happened. I think my preceding
discussion of the economics and politics of rights enforcement explains why
it has not happened and will not happen, regardless of the efforts of
advocates. Nevertheless, it seems fair to speculate about whether such a
judicial recognition of positive rights would be wise and what the
consequences of such a decision might be. I consider this question, from a
realist perspective, in the following part.
IV. THE POTENTIAL CONSEQUENCES OF POSITIVE RIGHTS
In the preceding two parts, I have sought to explain why the recogni-
tion of positive rights is likely to be practically trivial, if not meaningless. I
doubt that judges will do anything material to enforce such rights. In this
part, I consider the possibility that an activist judiciary will indeed aggres-
sively choose to enforce positive rights. Perhaps an explicit positive right
going beyond that in current state constitutions, enforceable by individuals,
would prompt greater judicial activism in the area.
249
The consequences of
246. See, e.g., LAWRENCE, supra note 106, at 48-51 (describing how the strategy
culminated in the effort's loss in Dandridge); see also Diller, supra note 13, at 1401-03 (discussing
Edward Sparer's litigation plan); Neuborne, supra note 65, at 886 (observing that "during the
1960's and 1970's, lawyers for the poor sought to derive a set of positive floors in areas of
education, health, nutrition and shelter directly from the United States Constitution" and that
"[tihe effort failed").
247. Laurence H. Tribe, Unraveling National League of Cities: The New Federalism and
Affirmative Rights to Essential Government Services, 90 HARV. L. REV. 1065, 1066 (1977).
248. Ralph K. Winter, Jr., Poverty, Economic Equality, and the Equal Protection Clause, 1972
Sue. CT. REV. 41, 58.
249. 1 doubt this. The judiciary would be able to avoid enforcing such an explicit right, per-
haps through the political question doctrine, which could render guarantees nonjusticiable, absent
judicially manageable standards for their enforcement. See Baker v. Carr, 369 U.S. 186, 217
(1962) (describing the criteria for a political question doctrine deference); Currie, supra note 56,
such aggressive enforcement are highly uncertain. Indeed, there is a high
probability that judicial involvement will only make things worse for the
beneficiaries of the positive rights.
A. The Substantial Indeterminacy of Positive Rights
Because of the economics of rights enforcement and the strategic con-
cerns of the judiciary, judges are likely to do very little to promote the ends
commanded by those rights. One reason is that such positive rights, by
their nature, are highly indeterminate. Hershkoff acknowledges that posi-
tive welfare rights are an "'example of indeterminacy,' requiring a court to
choose from among contested values without any selection criteria, in the
face of imperfect information and normative uncertainty.""
25
While all lan-
guage is somewhat ambiguous, positive rights would suffer from particular
indeterminacy. The reason for this indeterminacy is that such rights are
consequentialist, requiring the judiciary to create a program that achieves a
given result."' This characteristic provides another basis for distinguishing
positive and negative rights-the former call for a specific result, while the
latter simply regulate particular actions or conduct.
2
Advocates observe that positive rights tend to be vague and inde-
terminate. Their "lack of conceptual clarity" represents a "serious obstacle"
to their implementation."' They describe a positive right to "nutritious
food" as "hopelessly vague and indeterminate."
' 254
While quite vague, these
terms could be defined and given greater determinacy over time."'
Much of the discussion of the indeterminacy regarding positive rights
relates to defining the substance of the right itself, namely, what is a minimally
at 889 (suggesting that there were no judicially manageable standards available for implementing
a constitutional right to minimum subsistence).
250. Hershkoff, supra note 11, at 1180 (quoting Robert H. Mnookin, Defining the Questions,
in THE INTEREST OF CHILDREN: ADVOCACY, LAW REFORM AND PUBLIC POLICY 16, 17 (Robert
H. Mnookin ed., 1985)).
251. Hershkoff likewise recognizes the inherently consequential nature of positive welfare
rights. See id. at 1184-86.
252. See MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE
MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS 174 (1998) (observing that
rights today tend to be deontological and not instrumentalist in nature); Aart Hendriks, The Right
to Health: Promotion and Protection of Women's Right to Sexual and Reproductive Health Under
International Law: The Economic Covenant and the Women's Convention, 44 AM. U. L. REV. 1123,
1132-33 (1995) (distinguishing between the "obligation of conduct" associated with negative
rights and the "obligation of result" associated with positive rights).
253. Toebes, supra note 236, at 661.
255. See id. at 84 (suggesting that the precision of rights is a function of their development
by the judiciary).
sufficient income, and ignores the more serious indeterminacy about positive
rights relating to their consequential nature. Even if we could define
precisely what the poor were entitled to, there remains the question of what
program would effect that entitlement. Current policymakers might be
unable to define the actions that would ensure a minimally sufficient living
standard for all Americans. In the context of welfare policy, a "prime dif-
ficulty is that of assuring that the actual effects of a measure in fact conform
to its intended objectives."
' 256
The consequential demands of positive rights have not received much
consideration. Perhaps advocates of such rights contemplate the provision
of direct government assistance (be it cash, food, or health insurance). A
positive right to an outcome does not demand that it be achieved through
such direct assistance. Financial grants are not the only way to achieve the
ends of positive rights, they might not be the best way, and they may not
even be an effective way.
57
Given the indeterminacy inherent in such con-
sequentialism, it is vital to consider how judges might choose to enforce
positive rights.
B. Judicial Enforcement of Such Indeterminate Rights
The mere indeterminacy of positive rights does not intrinsically mean
that judges should not involve themselves in their enforcement. Judges
often apply highly indeterminate standards, such as the "arbitrary and
capricious" criterion of the Administrative Procedure Act."' The inde-
terminacy of positive rights, though, is somewhat different in its utterly
consequentialist nature. Courts trying to enforce such rights are not apply-
ing a principle or even evaluating a given event or decision-they are
called upon to command a policy that will reach a given end. It seems fair
to investigate how this role might be implemented by the judiciary. In this
part, I consider two alternatives. Under the first, which I term sincere
enforcement, I assume a politically neutral judiciary, acting in accor-
dance with the traditional formalist, legal model of decision making.
Under the second, far more likely realist model of enforcement, I assume
that the judges will use positive rights to advance their ideological policy
preferences.
256. NICHOLAS RESCHER, WELFARE: THE SOCIAL ISSUES IN PHILOSOPHICAL PERSPECTIVE
134(1972).
257. Increases in the cash value of public assistance in the United States have not correlated
to a reduction in poverty rates.
258. 5 U.S.C. 706(2)(A) (1994).
902
1. Sincere Enforcement
Under sincere enforcement, the courts would attempt to give meaning
to a positive right according to the demands of the text and other legally
relevant resources. By sincere enforcement, I mean classically legal decision-
making, associated with the formalist application of neutral principles.
"9
This presumes a judge "who objectively and impersonally decides cases
by logically deducing the correct resolution from a definite and consistent
body of legal rules.
'
"
2
" A sincere judge applying the legal model could have
a difficult time applying a positive right to minimum welfare.
Assume that a judge sincerely sought to enforce a constitutional right
providing that each American is entitled to a minimal level of subsistence.
Suppose an impoverished plaintiff appears before the Court and demands
his or her right to government support. How would the Court decide if the
individual were impoverished enough to qualify to invoke the right?
Should it be an absolute or a relative standard?
26
' At what quantitative
level should the standard be set?
262
If the plaintiff qualifies under that stan-
dard, should the Court enter an order simply directing that this individual
(and presumably all others similarly situated) be paid a certain amount of
cash monthly or should in-kind services (such as food stamps or housing
vouchers) be ordered? Should assistance be nationally uniform or geo-
graphically variable?263 Might the Court consider defenses to the
259. 1 have reviewed the nature of this legal model, in Frank B. Cross, Political Science and
the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. REV. 251,
255-64 (1997).
260. John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or
How Not to Miss the Point of the Indeterminacy Argument, 45 DUKE L.J. 84, 87 (1995).
261. See, e.g., SEN, supra note 85, at 325-43 (discussing the controversy between relative
and absolutist interpretations of poverty). Sen concludes that "there is a good case for an
absolutist approach." Id. at 343.
262. See MELNICK, supra note 142, at 277-78. R. Shep Melnick notes,
[I]t is hard to argue that any profession or government agency can provide an objective
answer to the question, How much does an adequate subsistence cost? As useful and
ubiquitous as it is, the government's official poverty line lacks the technical veneer of the
thrifty food plan [used in the food stamp program]. Few would argue that it is impossible
to subsist on an income below the poverty line. How well the poor should live appears to
most people to be a political question rather than a technical one.
Id.
263. See Neuborne, supra note 65, at 891.
While the existence of uniform national standards is an obvious advantage in
articulating and enforcing negative rights, the complexity and sensitivity of positive
rights with immediate distributional consequences argues strongly for local tailoring and
broad flexibility in application-options that would almost certainly be unavailable to a
federal judge in a constitutional case.
903
government's constitutional obligations? What if the federal budget were
strapped, and a court order would necessitate higher taxes or that money be
taken from other programs, such as defense or environmental protection?
Would alternative uses of the money be relevant? Could the Court consider
the possibility that the plaintiff bore some responsibility for his impov-
erished status?
264
What if he had gambled away a considerable sum of money?
What if he had lost his job due to misfeasance?... All of these questions are
potentially answerable,
66
but they illustrate the complexity of enforcing a
positive right.
The implementation of a positive right to minimum welfare could be
quite a complicated matter. Lawrence Sager noted,
Consider just one component of the right to minimum welfare, mini-
mally adequate medical care. Recent national experience stands as a
reminder of the questions that implementation of such a right would
entail: What level of medical care is minimally adequate? How should
such care be provided-by general financial support, single-payer or
managed-competition insurance, medical vouchers, or clinics for the
poor? What level or levels of government should be responsible for
the design, oversight, and support of the program? How should the
financial burden of such a program be distributed, and how should
the distribution of this burden be implemented? All of these deci-
sions of strategy and responsibility remain on the table even after we
have accepted the basic norm of a right to minimum welfare and
267
identified medical care as one of its critical components.
264. On the dispute over whether the "needy" should be confined to the "deserving poor,"
considering their own past actions, see generally AMY L. WAX, RETHINKING WELFARE RIGHTS:
RECIPROCITY NORMS, REACTIVE ATTITUDES, AND THE POLITICAL ECONOMY OF WELFARE
REFORM (Univ. of Va. Sch. of Law, Working Paper No. 00-7, 2000).
265. In a strong philosophical defense of positive rights, James Sterba only defends a right to
welfare "for the deserving poor, that is, the poor who have exhausted all of their legitimate
opportunities for meeting their basic needs." Sterba, supra note 56, at 92. Similarly, another
defender of positive rights contends that they should be viewed as enabling every individual to
reach a certain level of subsistence, not guaranteeing it. See David Copp, The Right to an Adequate
Standard of Living: Justice, Autonomy, and the Basic Needs, in ECONOMIC RIGHTS 231, 242 (Ellen
Frankel Paul et al. eds., 1992) (arguing that if the "foolish and improvident" squander their
opportunities, "they cannot complain that their Right has been violated").
266. While these questions may be answered, the answers can only be found in moral
philosophy, which yields no clear, determinate answers. The inevitable result is the transfer of
considerable policy-making discretion to the judiciary.
267. Sager, supra note 5, at 240. Enforcing a broader right could be even more complicated.
Sotirios Barber notes that to enforce a positive right to minimal subsistence would require factual
findings regarding
who and how many are poor, the kinds and causes of poverty, its economic geography,
what it will take to cure the curable kinds, whether sufficient resources are available for
redistribution without making matters worse for more people, what kind of programs lead
904
Given these complexities, it is unclear that the judiciary is the best branch
for making wise decisions about positive rights, even when acting sincerely.
Judges are ill suited for the evaluation and making of the trade-offs
implied by many positive rights. In the context of a positive right to envi-
ronmental protection, Holmes and Sunstein note that judges "lack the fact-
finding capacity.., that would justify their making particular allocative
decisions.""
s
Sunstein elsewhere warns that judicial enforcement of posi-
tive rights "would have harmful effects on other programs, many of them
quite important," effects that "can be taken into account by legislators and
administrators, but rarely by judges."
'69
He also notes that the judges' neces-
sary "focus on the litigated case makes it hard for judges to understand the
complex, often unpredictable effects of legal intervention."
270
Courts also
"lack the overview of the tangle of economic and environmental issues that
would be necessary, at a minimum for deciding rationally that one policy
should be chosen over an alternative,
27
even absent resource allocation
concerns. Sager finds these to be "powerful reasons" why judicial enforce-
ment of positive rights is unwise.
272
Other reasons can also be imagined.
273
The sincere enforcement scenario does not demonstrate that positive
rights would not be implemented, but it illustrates the complexity of such
implementation. The associated flexibility allows considerable room for
economic and political constraints to have an influence on implementa-
tion. The judiciary's fact-finding and other limitations surely call the wis-
dom of even sincere positive rights enforcement into question.
2. Realist Enforcement
Far more likely than sincere, formalist enforcement of positive consti-
tutional rights is political, realist enforcement. There is a wealth of evi-
dence indicating that judges' decisions can be predicted by their liberal
or conservative ideological inclinations. As Mark Tushnet notes, a "judge
is rather more likely to pick the theory that points where he or she wants to
to chronic dependency, the extent and structure of public support for poverty relief, and
many others.
Barber, supra note 5, at 180.
268. HOLMES & SUNSTEIN, supra note 10, at 126-27.
269. SUNSTEIN, supra note 13, at 148.
270. Id.
272. Sager, supra note 5, at 240.
273. Chief Judge Loren A. Smith of the U.S. Court of Federal Claims would add that the
enforcement of positive rights would unnecessarily politicize the courts and that the number of
such claims "would rapidly overwhelm any court system's capacity to function." Smith, supra note
67, at 8.
go anyway, than to pick a theory and reluctantly find that it leads to con-
clusions he or she would have preferred to avoid."
' 274
Using even a relatively
crude proxy for ideology-the party of the appointing president-political
scientists have found statistically significant determinants of judicial deci-
sion making.
275
Judges typically reject the claims of ideological decision making. It is
said that "[miost judges would sooner admit to grand larceny than confess a
political interest or motivation.""
27
Judge Harry T. Edwards has argued that
"it is the law-and not the personal politics of individual judges-that con-
trols judicial decision-making."
' 77
In addition to Patricia M. Wald, he has
taken me and Emerson H. Tiller to task for overemphasizing the ideological
component of judging.
278
Yet, the judges' claims cannot be taken on faith,
and the evidence to the contrary is overpowering.
Federal judges are borne in "highly political appointments by the
nation's chief political figure to a highly political body."
'79
Most federal
judges were politically active prior to their appointment
2
This activism
has carried over into their opinions. Studying the votes of the Justices
reveals "highly consistent ideological voting and clear ideological divisions
on freedom, equality and economic issues."s An examination of the Jus-
tices' federalism decisions found that they correlated with the ideology of
outcome more than with any consistent dedication to states' rights.
282
The
evidence on ideological decision making is especially strong at the Supreme
Court level,
283
the level at which national precedents are set.
274. TUSHNET, supra note 156, at 155.
275. See generally Cross, supra note 259, at 275-79 (reviewing the research on predicting
judicial votes and decisions).
276. ROBERT A. CARP & RONALD STIDHAM, JUDICIAL PROCESS IN AMERICA 264 (1990)
(quoting DONALD DALE JACKSON, JUDGES 18 (1974)).
277. Harry T. Edwards, Public Misperceptions Concerning the "Politics" of Judging: Dispelling
Some Myths About the D.C. Circuit, 56 U. COLO. L. REV. 619, 620 (1985).
278. See Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 VA. L.
REV. 1335, 1354-70 (1998) (criticizing Frank B. Cross & Emerson H. Tiller, Judicial Partisanship
and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155
(1998)); Patricia M. Wald, A Response to Tiller and Cross, 99 COLUM. L. REV. 235, 235-36 (1999)
(criticizing Cross & Tiller, supra, and Emerson H. Tiller & Frank B. Cross, A Modest Proposal for
Improving American Justice, 99 COLUM. L. REV. 215 (1999)).
279. Michael A. Kahn, Note, The Politics of the Appointment Process: An Analysis of Why
Learned Hand Was Never Appointed to the Supreme Court, 25 STAN. L. REV. 251, 283 (1973).
280. See, e.g., HOWARD, supra note 102, at 90-92 (discussing the political background of
circuit court judges).
281. David Adamany, The Supreme Court, in THE AMERICAN COURTS: A CRITICAL
ASSESSMENT 5, 11 (John B. Gates & Charles A. Johnson eds., 1991).
282. See Frank B. Cross & Emerson H. Tiller, The Three Faces of Federalism: An Empirical
Assessment of Supreme Court Federalism Jurisprudence, 73 S. CAL. L. REV. 741, 770-71 (2000).
283. See Cross, supra note 259, at 285-90.
906 48 UCLA LAW REVIEW 85 7 (200 1)
907
Dan Pinello has performed a meta-analysis of the empirical research on
the role of politics in judicial decision making."' He identified 140 research
papers that conducted empirical research on the link between judges' party
affiliation and decision making."' Of these, eighty-four reported findings in
a way that could be appropriately incorporated into his meta-anaysis."'
Meta-analysis is an increasingly used statistical procedure that enables the
cumulation of results from reasonably comparable but independently con-
ducted studies."
7
Some of these studies considered various other judicial
background variables aside from ideology, and the incorporation of these
additional variables in multivariate regressions consistently revealed a
greater effect of ideology."'
Virtually every one of the studies showed a positive association
between ideology and judicial decisions. The total sample size for the meta-
analysis was 222,789 judicial votes."' Pinello's ultimate conclusion was that
the political party associated with the judge explained 38 percent of
the variance in outcomes.
9
This is a systematic study with a very large
sample size that clearly demonstrates the ideological component of judging.
While one could surely quibble with the study and each of the eighty-four
underlying studies, the salient fact is that there is little empirical
evidence to the contrary. Empirical evidence supporting legal realism is
considerable.
There are no rigorous empirical studies of judicial voting on positive
rights, because such rights have not been recognized, and relatively few
cases address the issue. Examination of the limited number of relevant
Supreme Court cases offers some insights. Goldberg and Shapiro showed
some sympathy for positive rights by a liberal Court, and voting in those
cases showed ideological influence. In Shapiro, Brennan wrote for a major-
ity consisting of Justices Marshall, Abe Fortas, William 0. Douglas, John
M. Harlan, and Byron R. White, and Justices Warren, Harlan, and Hugo L.
Black dissented.
9
In Goldberg, Brennan wrote for a majority including
284. See Daniel R. Pinello, Linking Party to Judicial Ideology in American Courts: A Meta-
Analysis, 20 JUST. SYS. J. 219 (1999).
285. See id. at 221-29 (discussing criteria for inclusion and listing studies).
286. See id. at 225-29.
287. For a general discussion of meta-analysis, see MORTON HUNT, How SCIENCE TAKES
STOCK: THE STORY OF META-ANALYSIS (1997), and JOHN E. HUNTER & FRANK L. SCHMIDT,
METHODS OF META-ANALYSIS: CORRECTING ERROR AND BIAS IN RESEARCH FINDINGS (1990).
288. See Pinello, supra note 284 at 225-29.
289. See id. at 234.
290. See id. at 219.
291. See Shapiro v. Thompson, 394 U.S. 618, 621 (1969) (Brennan, Marshall, Fortas,
Douglas, Harlan & White, JJ.); see id. at 642 (Stewart, J., concurring); see id. at 644 (Warren &
Black, JJ., dissenting); see id. at 655 (Harlan, J., dissenting).
Marshall, Douglas, White, and Harlan, with Justices Warren E. Burger,
Potter Stewart, and Black in dissent.
292
These breakdowns show some mild
ideological effect. Goldberg and Shapiro, though, did not recognize signifi-
cant positive rights but rather focused more on procedural protections. The
roughly contemporary Dandridge v. Williams
293
decision first confronted the
issue of substantive positive rights and rejected it in a majority comprised of
Stewart, Burger, White, Black, and Harlan, with dissent from Douglas,
Marshall, and Brennan.
294
Here, the ideological breakdown is obviously
as expected. In San Antonio Independent School District v. Rodriguez,
295
Justices Lewis F. Powell, Jr., Stewart, Burger, and Blackmun found that the
poor were not a suspect class under the Fourteenth Amendment, with
Justices Brennan, White, Douglas, and Marshall in dissent.
296
Again,
ideology seems to explain the votes pretty well. The recent record, with a
conservative Court, is similar. "For the past fifteen years, Supreme Court
decisions on public benefits issues have mostly taken the form of reversals
of lower court decisions in favor of poor people."
' 297
With realist enforce-
ment, there is little promise for recognition or implementation of positive
rights in the foreseeable future.
There is at least some slim chance we could some day see judicial
activity enforcing constitutional positive rights, either out of a sincere legal
model commitment to rights enforcement or an ideological commitment to
action. A formal introduction of express positive rights into the
Constitution might inspire the judiciary into activist enforcement.
29
This
chance, even if slight, might be invoked as a basis for recognizing positive
rights.
2
" The nature of the prospective judicial activity requires exploration,
292. See Goldberg v. Kelly, 397 U.S. 254, 255 (1970) (Brennan, Marshall, Douglas, White
& Harlan, JJ.); see id. at 271 (Black, J., dissenting); see id. at 282 (Burger, C.J., dissenting); see id.
at 285 (Stewart, J., dissenting).
293. 397 U.S. 471 (1970).
294. See id. at 472 (Stewart & White, JJ.); see id. at 489 (Black, J. & Burger, C.J.,
concurring); see id. (Harlan, J., concurring); see id. at 490 (Douglas, J., dissenting); see id. at 508
(Marshall & Brennan, JJ., dissenting).
295. 411 U.S. 1 (1972).
296. See id. at 4, 18 (Powell, Stewart, Blackmun, JJ. & Burger C.J.); see id. at 59 (Stewart, J.,
dissenting); see id. at 62 (Brennan, J., dissenting); see id. at 63 (White, Douglas & Brennan, JJ.
dissenting); see id. at 70 (Marshall & Douglas, JJ. dissenting).
297. Diller, supra note 13, at 1421 n.96.
298. It appears that Canada's adoption of the Charter triggered a new judicial aggressiveness
in rights enforcement. See MORTON & KNOPFF, supra note 238, at 13-14 (describing an increase
in litigation and court activism as a consequence of the Charter's adoption). The authors note,
however, that the existence of written rights do not necessarily provoke such judicial
involvement. See id. at 23 (citing the example of Sweden).
299. See Glendon, supra note 13, at 532 (noting that a "reform-minded American" might
argue that recognizing positive rights "does not seem to cause any harm" and might "exert a
benign influence" on policy).
908
though, before it can be affirmed, and such exploration is the topic of the
following part.
C. Intriguing Consequences of Indeterminate Rights
Should positive constitutional rights be recognized, the most likely
scenario is that nothing much will happen because of the economics and
politics of enforcement. The paper rights will not be enforced' either in
court or by the legislative branch. Advocates might argue that such a situa-
tion would be no worse than the status quo and argue that the recognition
of positive rights would at least offer some possible benefit, if given judges
with the "right" ideological orientation." Perhaps the express recognition
of positive rights in the Constitution will provide the nudge neededfor the
judiciary to take an active role in alleviating the material condition of the
poor."' The possibility is at least worth considering.
Some fear positive freedoms will result in the trammeling of negative
freedoms. A right to basic welfare, thus, could compromise the right to pri-
vate property. This concern that positive rights might lead to communism"'
animated Isaiah Berlin."
3
This is not my concern, however, as I consider
the prospect so unlikely as to be implausible. Rather, I think the opposite
consequence might be more likely.
Because positive rights are indeterminate, as any consequentialist
command must be, they might arguably be fulfilled in innumerable ways.
There seems to be a presumption by devotees of such rights that they will
be fulfilled by requiring substantial cash payments to the poor or some such
300. This claim of "doing no harm" is debatable. The introduction of symbolic, unenforced
rights in the Constitution could actually do harm. It might dilute the power of other rights, when
they are placed into the company of such purely symbolic rights. Or it might have a sedating
effect on the efforts of the other branches, which would be inclined to leave such questions to the
(ineffective) judiciary and take the position that the Constitution will protect the interests at
which the positive rights aim. See, e.g., Mandel, supra note 13, at 451-52 (arguing that social
rights are symbolic action meant to reduce political pressure for welfare policy). Moreover, it is
possible that symbolic constitutional welfare rights could undermine government welfare
programs, because a loss in court runs the risk that society will adjust its understanding to conform
to the judicial holding. See TUSHNET, supra note 156, at 138.
301. This seems unlikely given the lack of enforcement of such express terms in state
constitutions and given the Court's willingness to enforce unexpressed rights, but the possibility is
worth considering. See, e.g., Scott & Macklem, supra note 13, at 8 (suggesting that constitutional
adjudication can play a role in a broader progressive effort).
302. See, e.g., Graber, supra note 13, at 763 (noting that some fear the "implications of a
coerced redistribution for the economic well-being of the society and the freedom of its citizens"
(quoting Winter, supra note 248, at 62)).
303. See BERLIN, supra note 18, at 56-57. For a discussion of this fear, see Bandes, supra
note 11, at 2314-15, 2330-35.
909
direct assistance program, but this remedy is not a necessary implication of a
right to minimally adequate subsistence. Some even argue that such pro-
grams that exist actually harm the poor.
3
"
4
Hence, given potential ideological
presuppositions of the Justices, the effects of positive rights could be dra-
matically different. Below are the implications of such rights in both con-
servative and liberal courts.
1. The Conservative Judiciary Scenario
If positive rights were constitutionally recognized, the outcome could
possibly be a nightmare for the advocates of those rights. Putting such
rights into the hands of a conservative, antigovernment judiciary could be
tantamount to the return of Lochner v. New York."
5
The conservative
political inclinations of Justices would only be reinforced by the economics
of rights enforcement." Such a conservative court could embrace the rec-
ognition of positive rights and use it as a sword to advance its own preferred
policies.
Conservative Justices are unlikely to take positive rights to minimal
subsistence and interpret them to compel greater government redistribution
of income to the poor.
3
"
7
They can point to evidence that there seems to be
little correlation between increases in welfare spending and reduction in
the poverty rate.
0
' This does not mean that conservative Justices will
ignore the right, however. An activist conservative Court might use that
positive right of minimal substance to dismantle the very programs that
advocates of positive rights seek to expand. Economic conservatives will
argue that "the poor would benefit more from the increased charity of a lib-
ertarian society than they would from the guaranteed minimum of a welfare
state."
3
" Charles Murray visibly argues that the War on Poverty actually
harmed the poor.
3
"
'
Or they will contend that "the greater productivity of
the more talented people in a libertarian society would provide increased
employment opportunities and increased voluntary welfare assistance which
would benefit the poor more than a guaranteed minimum would in a wel-
304. See generally CHARLES MURRAY, LOSING GROUND: AMERICAN SOCIAL POLICY,
1950-1980 (1984).
305. 198 U.S. 45 (1905).
306. See supra Part II.A.
307. See Chemerinsky, supra note 48, at 525 ("There is more chance that I will become the
starting center for the Los Angeles Lakers (I am five foot seven and very uncoordinated) than that
the [current conservative] Court will create a constitutional right to minimum entitlements.").
308. See data presented in KELLEY, supra note 14, at 8.
309. Sterba, supra note 56, at 78.
310. See generally MURRAY, supra note 304.
910
fare state."... Conservatives might argue that the "poor have been benefici-
aries of capitalism" but "have been victims of coercion at the hands of
government, which keeps them from advancing even further through their
own efforts."
' 2
For those with these beliefs, a positive right could be a pre-
scription for unleashing a truly laissez faire free market and eliminating the
welfare programs that currently exist.
Advocates of positive rights should know better than to discount the
prospect of a conservative judiciary using positive rights to strike down
welfare programs. One need only look at the experience in civil rights law.
The Fourteenth Amendment historically was used to benefit disadvantaged
minorities, even requiring affirmative action programs to combat discrimi-
nation."' With the ascendance of conservatives on the Court, however,
the tables have turned radically. Courts now use the Civil Rights
Amendments to strike down affirmative action programs that seek to assist
minorities."
4
Even the body of liberal precedents that accumulated has not
stopped this conservative interpretation.
3
1
5
Robert Bork, nearly a Supreme
Court Justice himself, suggested that positive rights might be used to invali-
date "the minimum wage and collective bargaining laws," because they
"create unemployment... primarily among the poor and disproportionately
among the young black population.""
3 6
311. Sterba, supra note 56, at 79. Tibor Machan thus argues that poverty is a result of the
pervasiveness of government. See TIBOR R. MACHAN, INDIVIDUALS AND THEIR RIGHTS 109
(1989); see also John Hospers, Some Unquestioned Assumptions, 22 J. SOC. PHIL. 42 (1991)
(contending that the poor would be better off in a completely libertarian society than in a welfare
state).
312. KELLEY, supra note 14, at 83. David Kelley blames policies such as minimum wage
laws, maximum hour laws, compulsory overtime pay, and mandatory fringe benefits such as family
leave and health insurance for increasing unemployment. See id. at 82.
313. The Court required affirmative action, desegregation programs in the context of public
schools. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 32 (1971). The
Court had generally permitted government affirmative action programs to stand, in contexts such
as redistricting. See United Jewish Orgs., Inc. V. Carey, 430 U.S. 144, 167-68 (1977). Even as
late as 1990, the Court upheld an affirmative action program in connection with government
licensing. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 566 (1990).
314. The Court in more recent years has struck down government affirmative action efforts.
See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995); City of Richmond v. J.A.
Croson Co., 488 U.S. 469, 508 (1989). For a good review of the change in the Court's position, see
John E. Nowak, The Rise and Fall of Supreme Court Concern for Racial Minorities, 36 WM. & MARY L.
REV. 345 (1995).
315. A classic example of this is the Fifth Circuit's decision in Hopwood v. Texas, 78 F.3d
932 (5th Cir. 1996).
316. Robert H. Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979
WASH. U. L.Q. 695, 700; see also GWEN E. BRODSKY, SOCIAL CHARTER ISSUES AFTER
BEAUDOIN-DOBBIE 20 (1992) (noting that positive rights in the Canadian Charter might be used
to challenge rent control laws, labor laws, and taxation).
The conservative position on positive rights is not an entirely implau-
sible one. Peter Edelman, a strong liberal and proponent of welfare pro-
grams, has written that "giving more money to the poor, as an antipoverty
strategy in and of itself, unaccompanied by other remedies, is not good
social policy," because it would "increase the degree of chronic dependency"
of the poor.
31
He argues that any effective strategy must involve job crea-
tion.
3
"' It is not implausible to imagine a conservative Court embracing this
aspect of Edelman's position, concluding that job creation is promoted by,
say, eliminating government regulation, and then holding those regulations
unconstitutional.
A conservative judiciary could use a positive right to strike down rent
control programs as unconstitutional. Conservatives argue that the market
consequences of rent control are a reduction in both the quality and quan-
tity of housing, especially for those with lower incomes. 319 Indeed, this
position is the virtually unanimous opinion of economists."' Homelessness
has been ascribed to the presence of rent control and its market
distortions.
321
Another likely target for an activist conservative judiciary interpreting
positive rights would be the minimum wage. A variety of economic studies
show that the minimum wage causes a reduction in employment, at least
among teenagers.
2
The result could be an absolute increase in poverty
rates. While the minimum wage clearly raises the incomes of some families,
the job losses have a counteractive effect, and one study found that the
effect of minimum wage requirements was to increase the proportion of
families who were poor or near-poor.
323
A conservative judiciary might use
these findings to conclude that minimum wage laws had the effect of
increasing poverty, rendering them illegal under consequentialist positive
rights.
317. Edelman, supra note 5, at 54.
318. See id.
319. See, e.g., William Tucker, How Rent Control Drives Out Affordable Housing, Cato Policy
Analysis No. 294, at http://www.cato.org/pubs/pas/pa-274es.html (May 21, 1997).
320. See J.R. Kearl et al., A Confusion of Economists?, AM. ECON. REV., May 1979, at 28, 33
(reporting virtually no disagreement on this proposition among surveyed economists).
321. See, e.g., William Tucker, Where Do the Homeless Come From, NAT'L REV., Sept. 25,
1987, at 32.
322. See Charles Brown et al., The Effect of the Minimum Wage on Employment and
Unemployment, 20 J. ECON. LITERATURE 487, 503-04, 513 (1982) (summarizing the results of the
studies).
323. See DAVID NEUMARK ET AL., THE EFFECTS OF MINIMUM WAGES ON THE
DISTRIBUTION OF 'FAMILY INCOMES: A NON-PARAMETRIC ANALYSIS (Nat'l Bureau of Econ.
Research, Working Paper No. W6536, 1998).
912
Conservative justices might even use a positive welfare right to disable
national environmental programs. The costs of these programs are typically
passed on and represent the equivalent of a very regressive tax.
324
When
compliance costs are not passed forward, they may result in production cut-
backs and lost employment opportunities for relatively poor blue-collar
workers.
25
The net economic effect of environmental regulation is regres-
sive.
26
Hence, positive rights could be invoked by polluting industries in
order to escape environmental legislation, claiming that the regulation
unconstitutionally harmed the poor, and a conservative court might accept
the argument.
The policy case for these conservative decisions is not a conclusive
one.
327
They would not necessarily provide actual assistance to the condi-
tion of the poor. But there is a colorable case that such programs would
help the poor. That is all that a conservative judiciary would need. As a
practical matter, courts are much better at stopping, government action
than they are at compelling such action.
2s
Studies of the effect of decisions
have found that "courts can effectively block significant social reform" even
as they are unable to force such reform.
29
Hence, the conservative judiciary
will not only be more likely to halt government programs but will be more
able to do so, as well.
2.. The Liberal Judiciary Scenario
If the judiciary were liberal and pro-government, the consequences of
aggressive enforcement of constitutional positive rights would be different
but not necessarily beneficial. The liberal judiciary presumably would not
324. The economic effects of regulation may be more regressive than a typical sales tax. See,
e.g., Nancy S. Dorfman & Arthur Snow, Who Will Pay for Pollution Control?--the Distribution by Income
of the Burden of the National Environmental Protection Program, 1972-1980, 28 NAT'L TAX J. 101,
103 (1975); H. David Robison, Who Pays for Industrial Pollution Abatement?, 67 REV. ECON. STAT.
702, 704-05 (1985).
325. See, e.g., Hamid Beladi & John Rapp, Urban Unemployment and the Backward Incidence
of Pollution Control, 27 ANN. REG. SC. 153 (1993) (noting that pollution control has caused job
losses, particularly in urban areas).
326. Research on the generally regressive economic consequences of environmental
regulation is summarized in Frank B. Cross, When Environmental Regulations Kill: The Role of
Health/Health Analysis, 22 ECOLOGY L.Q. 729, 755-64 (1995).
327. See Richard Arnott, Time for Revisionism on Rent Control?, J. ECON. PERSP., Winter
1995, at 99, 118 (noting that there is little empirical evidence tying rent control programs to the
adverse consequences often presumed by economists).
328. See Frank B. Cross, Shattering the Fragile Case for Judicial Review of Rulemaking, 85 VA.
L. REV. 1243, 1320-21 (1999) (describing how judges are effective at stopping government action
but poor at forcing such action).
use positive rights to eliminate governmental assistance legislation, rent
control, or other redistributive programs of the contemporary state. Rather,
such a judiciary might use the rights to strike down constraints on such
programs and to compel additional government spending to benefit the
poor. These efforts would be complicated considerably by the economics of
the litigation process and the limited implementation powers of the
judiciary, but one can imagine that those difficulties could conceivably be
overcome.
The liberal judiciary scenario presents a more complex question. The
makeup of the judiciary means that even a Court with a liberal orientation
might not aggressively pursue positive rights, because those might not be
the liberal issues of greatest concern to liberals on the Court.
3
" Liberal Jus-
tices will still be members of an elite, drawn from the "higher social
332
classes,
'
.. with class interests that might concern the welfare of the poor.
Traditionally judges are "almost exclusively male, white and wealthy, and
their decision making perspective is bound to be heavily structured by their
background," which would lead them to interpret "those [positive] rights
regressively." This factor can explain why judges have supported the right
to an abortion, a right that may directly affect their families, but not a right
to minimum subsistence. The judiciary is less representative of the popu-
lace than are the elected branches and may therefore be less responsive to
disadvantaged groups. Not only do members of the legislature attend to the
broad population in order to be reelected, they are more likely to represent
the diversity of the population.
34
It is not clear that a liberal court would
use its institutional capital to fight political and economic obstacles and
establish a vigorous implementation of positive rights. The liberal Warren
Court took only halting steps in this direction.
335
To play out the scenario,
though, suppose that such a Court was ready and able to command govern-
ment compliance with positive rights. Its decisions might well not even be
in the best interests of the intended beneficiaries.
330. See, e.g., Graber, supra note 13.
331. HOWARD, supra note 102, at 103-04; see also JOHN HART ELY, DEMOCRACY AND
DISTRUST: A THEORY OF JUDICIAL REVIEW 58-59 (1980) (noting that the legislature has greater
diversity of class than the federal judiciary).
332. See ELY, supra note 331, at 59 (suggesting that judicial opinions reflect the "values of
the upper-middle, professional class"); Graber, supra note 13, at 812 (noting that the judiciary is
"attuned to elite values").
334. See, e.g., Cross, supra note 122, at 1529.
335. See supra notes 150-155 and accompanying text (discussing how the Warren Court
failed to find and enforce positive rights in the Constitution).
914
If the courts were to enforce a positive right to minimum subsistence
in the fashion contemplated by its advocates, perhaps the most likely
decision would be one striking down the recent welfare reform legislation
336
as unconstitutional. Such an action would be an easy one for the courts, as
it would not require them to design and enforce a new welfare program but
would merely restore the status quo ante."
7
The outcome would seem to be
consistent with the essence of the positive right, which is an individual
entitlement to government assistance. Moreover, invalidating such legisla-
tion seems to be the sort of judicial action that positive rights advocates
seek.
38
Suppose that the United States recognizes positive rights, and the
Court used this authority to strike down recent welfare reforms. That out-
come might actually disadvantage the poor. Research on the effects of
welfare reforms is inconclusive but appears to suggest that those reforms
have actually benefited most former welfare recipients, though the reforms
might have harmed the poorest of the poor. A government assessment of
the effects of welfare reform after three years identified the empirical
effects of the effort.
9
It found that the "widely predicted disasters have not
materialized" and that there was "solid evidence of a host of positive effects"
of the reform, including on "the employment of mothers, especially
nevermarried mothers; on income in female-headed families; and on
poverty."
3
" Strikingly, the report found that in states with the largest
decreases in welfare caseloads, child poverty declined, even more than in
states with more modest caseload effects.
34
' It appeared that "the combina-
tion of welfare reform and the work support system is more effective than
336. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L.
No. 104-193, 110 Stat. 2105.
337. See Osiatynski, supra note 13, at 262 (suggesting that the most likely consequence of
positive rights would be to "freeze in place" the existing programs and prevent their reform).
338. See, e.g., Peter Edelman, The United Nations Convention on the Rights of theChild: Impli-
cations for Welfare Reforn in the United States, 5 GEO. J. ON FIGHTING POVERTY 285 (1998) (criticizing
welfare reform efforts); Helen Hershkoff, Welfare Devolution and State Constitutions, 67 FORDHAM
L. REV. 1403, 1432 (1999) (suggesting that welfare reform is theoretically inconsistent with
positive rights and that state constitutions should at least constrain the implementation of the
welfare reform program).
339. See RON HASKINS, EFFECTS OF WELFARE REFORM AT THREE YEARS, (1999) (Report
to House Committee on Ways and Means).
340. Id. at 9.
341. See id. at 15. Twenty-three states had welfare caseload declines of 25 percent or more,
and child poverty levels fell 1.8 percent in these states. Child poverty levels fell 0.3 percent in
other states. See id. While the fall in child poverty may not be due to the reform, the data
provided no evidence "for the claim that declines in welfare benefits lead to increases in poverty."
Id.
previous policy in removing children from poverty."
' 342
There is evidence
that welfare reform assisted the poor, so that constitutionally invalidating
such reform would be counterproductive.
A separate evaluation found even more benefit from the welfare
reform program.
43
The study examined the effects of policy changes at the
state and federal level on nearly one million women who were on welfare.
344
For state welfare reform programs (adopted before the federal program), the
effects were an increase in work, an increase in income, and a decline in the
poverty rate.
45
For the federal welfare reform program, there were similar
increases in earnings and in income, with the corresponding decline in
poverty.
4
' Unlike some research, this investigation found no adverse effect
of reform on the poorest of the poor.
47
A closer assessment of the effects of welfare reform in Minnesota came
to similar conclusions.' The Minnesota program, which was liberal and
provided government assistance to supplement its implementation of the
national welfare reform program,
349
led to an increase in employment rates
among beneficiaries of 35 percent and a 23 percent increase in earnings."
The program also "led to a series of important changes in family life
improvements in family and child well-being (again, relative to the AFDC
group)-a dramatic decline in domestic abuse, a modest increase in mar-
riage rates, and, for children, better performance in school and fewer
behavioral problems.
351
Indeed, there is general evidence that parental
work "is an independent cause of better outcomes for families and children
wholly separate from raising incomes.
352
The evidence on the consequences of welfare reform is not all positive.
For a minority subset, perhaps the poorest of the poor, the effects of welfare
342. Id. at 16.
343. See ROBERT F. SCHOENI & REBECCA M. BLANK, WHAT HAS WELFARE REFORM
ACCOMPLISHED? IMPACTS ON WELFARE PARTICIPATION, EMPLOYMENT, INCOME, POVERTY,
AND FAMILY STRUCTURE (Nat'l Bureau of Econ. Research, Working Paper No. 7627, 2000).
344. See id. at 9.
345. See id. at 17.
346. See id. at 21.
347. See id. at 23-24.
348. See VIRGINIA KNOX ET AL., MANPOWER DEMONSTRATION RESEARCH CORP.
REFORMING WELFARE AND REWARDING WORK: A SUMMARY OF THE FINAL REPORT ON THE
MINNESOTA FAMILY INVESTMENT PROGRAM (2000).
349. Government expenditures under the Minnesota welfare reform program actually
increased. See id. at 3.
350. See id. at 4.
351. Id. at 3.
352. Jonathan Zasloff, Children, Families, and Bureaucrats: A Prehistory of Welfare Reform, 14
J.L. & POL. 225, 304 (1998) (suggesting that work encourages parental diligence, honesty, good
health, and reliability, which in themselves "improve children's life chances").
916
reform may have been adverse.
3
One could argue that the adversity of
these results outweighs the positive effects for a larger population. How-
ever, defenders of positive rights cannot rest on such an argument-they
must establish that courts are best-suited to make a tradeoff of interests
among groups of the poor. That assertion is hard to sustain. The judiciary
is less able to discern the true effects of welfare reform,
354
and, if it could so
discern, is institutionally less able to evaluate the trade-offs associated with
reform and identify the best compromise policy.
55
It seems questionable to
leave such trade-offs among groups of the poor to the judiciary, rather than
the elected branches of government.
Moreover, constitutionalizing a right to a minimum income and pre-
venting reform efforts, perhaps precluding the giving of policy regard
to individual desert for welfare, is likely to provoke a great public backlash.
The result of "winning the legal victory can be losing the political battle.
35 6
A historical study found that court decisions are more likely to mobilize
opponents than to mobilize supporters of the decisions.
357
Any unqualified
right to government assistance will find considerable opposition. Amy Wax
has examined the public attitudes about welfare and has found that "fun-
damental and innate attitudes" of the populace reflect a "hostility to those
who would free ride on others' productive efforts" and a "tenacious distinc-
tion between deserving and undeserving recipients of government aid."
'
Welfare arouses "negative feelings because the public sees it as enabling
people to avoid becoming self-sufficient and thereby take advantage of tax-
payers' perceived generosity," which causes them to "become hostile to low-
income people."
' 359
The American people favor helping the needy, but only
353. See Haskins, supra note 339, at 21-22.
354. See Cross, supra note 188, at 1039-44 (discussing the judiciary's inability to assess
political and practical constraints to policy implementation in the context of administrative rule
making). A classic explication of the shortcomings of courts is found in DONALD L. HOROWITZ,
THE COURTS AND SOCIAL POLICY 31 (1977) (observing that the "adjudication process conspires
in a dozen small and large ways to keep the judge ignorant of social context").
355. See Cross, supra note 122, at 1605-06 (describing how the legislature is better suited
than the courts for compromising such competing interests). Congress is "more sensitively tuned
to the competing social interests that demand accommodation" and can command greater
"institutional legitimacy" for decisions than can the courts. Robert A. Burt, Miranda and Title II:
A Morganatic Marriage, 1969 SUP. CT. REV. 81,114; see also MORTON & KNOPFF, supra note 238,
at 163 (observing that "Mary Ann Glendon's comparative study of abortion law in 20 Western
democracies demonstrates that the legislative process usually plays to the moderating coalition of
minorities necessary to create a legislative majority, while judicial politics plays to the minorities
at the extremes of the policy continuum").
356. TUSHNET, supra note 156, at 138.
357. See ROSENBERG, supra note 97, at 341.
358. WAX, supra note 264, at 9.
359. Zasloff, supra note 352, at 260 (footnote omitted).
48 UCLA LAW REVIEW 857 (200 1)
those who are disadvantaged through no great fault of their own and who
are willing to work to better their condition.
36
Such attitudes may even be
an innate aspect of human psychology.
36
These attitudes surely explain the
popularity of welfare reform legislation.
362
Even members of Congress who
favor expanded public assistance programs have learned "of the dangers of
asking for too much,"
' 363
when doing so can elevate the profile of the issue
and possibly cause a backlash. Perhaps the "demise of left-liberal notions of
entitlement has laid the political groundwork for an expansion of the
American welfare state" as one "can advocate for insuring that welfare
recipients receive genuine opportunities for employment under the public
assistance system."
' 364
Constitutionalizing a right to assistance based on need
could destroy this progress.
Constitutional rules cannot readily overcome private attitudes about
limiting public assistance to the deserving poor. Such "guarantees are ulti-
mately powerless against entrenched social values to which they are
opposed.""
36
This is in part due to the limited power of the Court and in
part due to the Court's strategic responsiveness to the demands of other
institutions and the public.
366
Perhaps courts too have learned the dangers
of asking for too much and provoking a backlash. If so, the positive rights
might not mean much. If not, their recognition could become
counterproductive.
If the courts persist in enforcing positive rights in the face of strong
public opposition, the result could be a lose/lose scenario. The public and
elected branches of government could resist judicial rulings compelling
expanded welfare assistance. The weaknesses of courts in implementing
their commands is well established. "Court victories in reform litigation
often have little practical effect because of the obstacles to successfully
implementing judicial orders."
' 367
Experience has demonstrated the
360. See, e.g., STEVE FARKAS, THE VALUES WE LIVE BY: WHAT AMERICANS WANT FROM
WELFARE REFORM 17 (1996) (discussing how the American people expect welfare recipients to
try to work to establish their independence from the dole); MARTIN GILENS, WHY AMERICANS
HATE WELFARE: RACE, MEDIA, AND THE POLITICS OF ANTIPOVERTY POLICY 2-5 (1999)
(suggesting that people oppose welfare when they see recipients as unwilling to work); MELNICK,
supra note 142, at 60 (reporting that "[miost studies of public opinion and elite opinion in the
United States have found strong opposition to government programs that provide benefits to
those who are capable of working but do not"); Zasloff, supra note 352, at 261 (noting that
Americans support welfare for those unable to work).
361. See WAX, supra note 264, at 31-32 (discussing this theory).
362. See id. at 2 n.3 (citing research on the popularity of welfare reform).
363. MELNICK, supra note 142, at 267.
364. Zasloff, supra note 352, at 314.
365. WAX, supra note 264, at 32.
366. See supra Part II.B.
918
"impotence of the courts to supervise the implementation of their decrees,
their impatience with protracted litigation, and their limited ability to
,,118 i s
monitor the consequences of their action. There is some documented
evidence of this in the context of judicial welfare rulings. Even after the
Supreme Court invalidated notorious "man-in-the-house" standards for cut-
ting off public assistance,
369
local administrators continued to apply such
standards.
7
Welfare administrators have similarly ignored child care provi-
sion requirements."'
Successful enforcement of positive rights could thus provoke a backlash
that would make poverty problems worse. When liberals killed a workfare
requirement in the early 1970s, they "destroyed the very constituency [they]
were trying to help" and drove "state politics even in the north to turn
sharply to the right.
3 72
The failure of the welfare rights litigation struggle of
that decade was attributed to "a backlash in public opinion.
373
When legal
services attorneys representing the poor sought to "file broader legal actions
contesting governmental policies that adversely affected poor people," they
increasingly came under political attack.
4
In the 1970s, that attack suc-
ceeded at the federal level in decentralizing legal services, which had the
effect of limiting "litigation aimed at reforming societal institutions.
375
In
the 1
9
80s, the Reagan administration progressively cut the budget of the
program and staffed it with individuals who were opposed to the program's
very existence.
3 76
Backlash may take other, more direct forms.
If the courts successfully kept statutes from distinguishing between the
deserving and the undeserving poor, guaranteeing everyone assistance, that
fact could cause the public to disdain all welfare programs, because of the
inability to exclude the undeserving from benefits, thus hurting the inter-
ests of all the poor. Should this come to pass, attempts at enforcing private
rights would undermine the political support for public assistance programs.
Against a strong public and political will on a salient issue, the courts will
368. HOROWITZ, supra note 354, at 264; see also Cross, supra note 259, at 300 (discussing
the failure of implementation in desegregation cases, school financing litigation, and other areas).
369. See, e.g., Lewis v. Martin, 397 U.S. 552, 558-59 (1970); King v. Smith, 392 U.S. 309,
333 (1968).
370. See J.L. Mashaw, Welfare Reform and Local Administration of Aid to Families with
Dependent Children in Virginia, 57 VA. L. REV. 818, 828-30 (1971) (describing local resistance to
legal directives within the AFDC program, including application of the man-in-the-house rules).
371. See Zasloff, supra note 352, at 245-46.
372. Id. at 279.
375. Id.
376. See id. at 58.
The Error of Positive Rig hts 919
not stand.
377
Liberal judicial decisions could thereby hinder the ends they
sought to advance. Even with a liberal judiciary, positive rights do not offer
promising policy outcomes.
D. Assessing the Probable Consequences of Positive Rights
It is, I suppose, possible that the courts, acting ideologically or other-
wise, would get the interpretation and implementation of positive welfare
rights "just right" and reach the perfect compromise, a scenario that I have
omitted. The crucial question is the probability of the courts getting
the policy just right, as opposed to some other scenario in which judicial
involvement would be counterproductive, if not disastrous. Absent some
assurance of the courts' ability to get it just right, the case for positive rights
diminishes. The advocates of positive rights provide no such assurances but
rely on something akin to blind faith in the judiciary and its processes,
3 78
a
faith that is unwarranted for a variety of reasons including those I have set
forth above in Part II.
Ultimately, a defense of positive rights can only come down to a com-
parative institutional analysis of courts and other branches of government.
Because courts could actually make the problem worse, they are not merely
a backstop to legislative protection.
379
For positive constitutional rights to
make sense, the advocates have to explain why courts would do a better job
of providing minimally adequate welfare support than would the legislative
and executive branches. The historical record does not offer much support
for this position. The Court has been "indifferen[t] to economic inequality"
in
society.3
s
Some conservatives have argued that the democratic process has been,
if anything, overly generous to the poor.
38
' This conclusion relies upon ref-
erence to a baseline of reasonably appropriate assistance, which is a hotly
377. See Cross, supra note 122, at 1555.
378. See, e.g., TUSHNET, supra note 156, at 172 (criticizing those who have an "idealized"
view of the courts and declaring that "the good decisions-the ones we like--occur when the
Court gets the Constitution right, and the bad ones occur when we happen to have the wrong
justices").
379. See, e.g., Cross, supra note 122, at 1577 (discussing the theory under which courts can
serve as a backstop for the protection of negative rights, providing sometimes for more protection
than that offered by the legislature but never providing for less protection).
380. Michael W. McCann, Equal Protection for Social Inequality: Race and Class in
Constitutional Ideology, in JUDGING THE CONSTITUTION: CRITICAL ESSAYS ON JUDICIAL
LAWMAKING 231, 251 (Michael W. McCann & Gerald L. Houseman eds., 1989).
381. See Bork, supra note 316, at 701 (complaining of "massive income redistributions"
produced by the democratic process); Winter, supra note 248, at 98 (discussing the "enormous
amount" of public assistance provided for the poor).
48 UCLA LAW REVIEW 85 7 (200 1) 920
disputed normative issue.
3
"
2
My criticism of positive rights need not take a
stand on the normative issue, though. The relevant question is which insti-
tution, Congress or the courts, is likely to better provide adequately for the
poor, whatever baseline of adequacy is chosen. While one can certainly
argue with the sufficiency of prevailing levels of statutory assistance to the
poor, the various government entitlement programs in 1996 did provide
$700 billion in assistance to various groups deemed deserving.
383
Between
1965 and 1990, social security funding rose from $17 billion to $250 billion,
medicare and medicaid spending grew from zero to $150 billion, and
programs such as food stamps and AFDC grew from $3 billion to $40
billion." Statutory public assistance programs have lifted millions of
Americans out of poverty."
8
These results do not sound like the product of
a "chronically weak and permanently outvoted underclass.'
3 s6
There is some
empirical evidence that democracies with greater levels of inequality
inevitably respond politically by increasing redistribution of income such
that it cancels out much of the inequality.
3 7
In America, the people "will
support and have supported massive federal interventions in aid of poor
children and families as long as those families behave according to
generally-accepted norms, in particular the norm of working and making
efforts toward self-sufficiency."
3
" Public opinion has forced conservative
politicians to back down on their efforts to preclude minimum wage protec-
tion to those employed under welfare reform.
9
In short, the democratic
public is not insensitive or wholly unresponsive to the needs of the poor.
Proponents of positive rights might still complain that the record
of statutory assistance to the poor is insufficient. Perhaps so, but the real
issue regarding positive rights is one of institutional comparison. The
legislative and executive branches have done a lot more for the poor than
382. See, e.g., Loffredo, supra note 11, at 1315 (challenging Ralph Winter's and Richard
Bork's use of a free market baseline).
383. See HOLMES & SUNSTEIN, supra note 10, at 209.
384. See MELNICK, supra note 142, at 41.
385. See Charles Silver & Frank B. Cross, What's Not to Like About Being a Lawyer?, 109
YALE L.J. 1443, 1481 (2000) (reviewing data on the effectiveness of cash transfer programs).
386. Neuborne, supra note 65, at 883.
387. See BRANKO MILANOVIC, Do MORE UNEQUAL COUNTRIES REDISTRIBUTE MORE?
DOES THE MEDIAN VOTER HYPOTHESIS HOLD? (World Bank Group, Policy Research Working
Paper No. 2264, 1999) (studying 24 countries demonstrating that countries with more inequality
have more redistribution, even controlling for other variables, but finding the theoretical
explanation elusive).
388. Zasloff, supra note 352, at 261; see also id. at 262 (discussing the public willingness to
support large multibillion dollar welfare programs, so long as recipients tried to become self-
sufficient).
389. See id. at 315.
922 48 UCLA LAW REVIEW 857 (2001)
have the courts.
9
The advocates of judicially enforceable positive rights
turn to the historical record for proof of the relative inadequacy of statutory
assistance and then immediately ignore the historical record of judicial
assistance.
39
' Under the relevant institutional comparison, judicial involve-
ment is difficult to justify.
92
On balance, Congress and the Executive
branch have been more favorable to the interests of disadvantaged groups
393
than have the courts.
Advocates of positive rights to help the poor have to put forth some
reason why courts are institutionally better designed to serve the poor than
are the elected branches of government. Jeremy Waldron has asked the
crucial, but oft ignored, question: "Does judicial review make things better
or even worse in this regard?"'
'
He suggests the answer by observing that
with regard to "social and economic conditions," the "courts in the past
have proved themselves least responsive to claims made by the
oppressed."
' 3 9
Unlike the advocates of positive rights, Waldron strives to
make an even-handed review of the historical record for both legislatures
and courts and finds the latter wanting.
Hershkoff addresses the institutional comparison of legislatures and
courts, albeit briefly. She suggests that "welfare legislation illustrates a clas-
sic public choice problem.
396
She argues that the poor tend "to be diffuse
and powerless" and "unlikely to attract the attention of their legislators.
'
"
397
As a consequence, "poor people-even in political alliance-have never
390. This is not to suggest that the courts have been entirely unresponsive to claims by poor
individuals. Various decisions have advanced the rights of the disadvantaged. See generally
MELNICK, supra note 142. But those decisions have been in the area of statutory interpretation,
in which the courts have piggybacked on the progressive actions of the elected branches. The
statistics in Table 1, supra, further demonstrate that the poor are far more likely to lose in court
than they are to win.
391. See, e.g., Chemerinsky, supra note 48, at 531-32 (lamenting the historic insufficiency
of legislative assistance to the poor without mention of the even greater historic insufficiency of
judicial support). This shortcoming is not limited to our current context. See Paul Brest, Congress
as Constitutional Decisionnaker and Its Power to Counter Judicial Doctrine, 21 GA. L. REV. 57, 67
(1986) (observing that arguments based on comparative institutional ability "often ignore the
realities of an institution's performance").
392. Cf. Diller, supra note 13, at 1426 (concluding that "the attainment of political strength
provides the best, and perhaps the only, prospect for the lasting and fundamental transformation
of poor communities").
393. See, e.g., SPANN, supra note 161, at 85-93; Cross, supra note 122, at 1570-73.
394. Jeremy Waldron, Book Review, 29 COLUM. HUM. RTS. L. REV. 765, 784 (1998)
(reviewing CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND
UNNAMED (1997)).
395. Id. at 786.
396. Hershkoff, supra note 11, at 1172.
397. Id. (footnotes omitted); see also Loffredo, supra note 11, at 1278-79 (arguing that the
poor are "marginalized" and lack "fair access to the political process").
consistently been able to persuade local majorities to enact reasonable pub-
lic assistance laws."
' 39
This position ignores the hundreds of billions of dol-
lars that have been appropriated for public assistance.
99
The contention
also contains an implicit and unsupported normative baseline about the his-
toric and current insufficiency of public assistance. But even granting
Hershkoff that normative baseline as the appropriate one, legislatures have
done more than has the judiciary, even, as Hershkoff notes, in those states
that have positive rights in their constitutions for courts to enforce. She
apparently believes that courts would be more responsive to the poor than
are the elected branches, but this position is utterly lacking in support, is
plainly contrary to experience, and takes an unrealistically idealized vision
of judges and the judicial process.'
Because my case is only a pragmatic one, it does not prove that it is
inconceivable that positive rights could be valuable or constitutionally
appropriate. It is possible that some particular right, or some circumstances,
might escape this critique. Given the above analysis, however, it is clearly
insufficient to try to justify positive rights on the grounds that their fulfill-
ment is theoretically important to human well-being. Advocates of such
rights should be called upon to demonstrate how the recognition of these
rights would, in practice, actually achieve their desired ends. Governmen-
tal decisions about the nature and extent of public assistance for the disad-
vantaged are significant political decisions, and it is futile to rely on the
courts to evade society's political judgments in this regard.
CONCLUSION
Commonly, the case for positive rights implicitly presumes that judges
are benevolent magicians, willing and able to wave a wand and thereby dis-
pel the sad conditions of poverty."
1
If not wizards, judges are at least
regarded as philosopher-kings who can both perceive and create a just
society.
2
Realistically, judges for pragmatic reasons will do little to enforce
398. Hershkoff, supra note 11, at 1172. For a similar argument suggesting that with growth
of economy and "tolerably fair distribution" of wealth, democracy will not protect interests of the
poor, see Neuborne, supra note 65, at 883.
399. See supra notes 383-385 and accompanying text.
400. Hershkoff relies on the "principled judgment that commentators conventionally
associate with courts." Hershkoff, supra note 11, at 1179.
401. See, e.g., ROSENBERG, supra note 97, at 2-3 (noting the "mystification" of the judiciary
and its inflated importance); SMITH, supra note 106, at 97 (discussing how some have "an
optimistic, naive faith in the willingness and power of courts to redress societal inequalities").
402. See McCann, supra note 194, at 63 (addressing those who see the Court as "a heroic
band of White Knights who courageously wielded their swords of principled legal reason to slay
monstrous injustices long afflicting our nation"); Martin Redish, Taking a Stroll Through Jurassic
The Error of Positive Riahts
923
positive rights, even were they formally recognized constitutionally. If
judges did involve themselves actively in the effort to secure such rights,
they would probably make matters worse. The case for positive rights
ignores the ideological influences on judicial decision making, which ren-
ders the legislature presumptively a more suitable forum.
3
The case ignores
the strictures of the process of litigation, which is less promising for the
poor than is the legislative process."
4
The case erroneously presumes that
the courts can discern the policy best suited to achieving the desired conse-
quential ends, when in fact the legislature is better suited for this goal."'
Finally, the case presumes that judges can effectively implement their
decisions, when in fact such implementation is highly uncertain and might
in fact be counterproductive.
6
These four failings doom any hopes that the
recognition, of positive rights will improve, the lives of the intended
beneficiaries.
Park: Neutral Principles and the Originalist-Minimalist Fallacy in Constitutional Interpretation, 88 NW.
U. L. REV. 165, 165 (1993) (discussing the position that considers judges to be "philosopher-
kings" who would "serve as a roving societal conscience").
403. For a discussion of realist judicial action, see supra Part IV.B.2.
404. For a discussion of the economics of rights enforcement, see supra Part II.A.; see also
Cross, supra note 116, at 368-74 (describing how the legislature will better represent the general
public interest than will the judiciary).
405. Implementing positive rights requires the resolution of "some difficult empirical issues."
Copp, supra note 265, at 232-33. On the shortcomings of judicial fact-finding and policymaking
in the context of constitutional rights, see, for example, Cross, supra note 122, at 1547-48. For a
more general discussion of the courts' limitations in this regard, see HOROWITZ, supra note 354, at
294-95.
406. See supra Part IV.B. 1. (discussing the shortcomings of the judiciary in mapping out and
implementing social reform programs); see also Scott Barclay & Thomas Birkland, Law, Poli-
cymaking, and the Policy Process: Closing the Gaps, 26 POL'Y STUD. J. 227, 234 (1998) (observing
that the courts can "consider only the information and claims that are placed directly before
them," so that their review "is not broad enough to develop the comprehensive and dynamic
policies necessary to resolve many social issues").
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