Katrina, the Constitution, and the Legal Question Doctrine

Abstract:     
In this paper I will not develop the case for constitutionally protected welfare rights - I have tried to do that elsewhere. Instead, I want to explore the tension between what I will take to be at least a plausible account of the state's Constitutional obligations to the poor, and what seems to me as at least equally self-evident, to wit, that no American court will discover and then impose such Constitutional obligations upon recalcitrant state or federal legislators. My conclusion will be pragmatic. I want to urge those who feel likewise regarding the Constitutional obligations of state actors, to redirect their hermeneutic skills away from the forum in which such arguments will likely never prevail - the courts - and to those fora in which they may well make a difference: legislatures that may indeed have unrecognized moral and Constitutional duties to legislate on behalf of the well-being of all. In order to reach this pragmatic conclusion, however, I hope to show that a good deal of jurisprudential work is in order. To make the case for non-adjudicated Constitutional welfare rights - indeed, to make the case for a non-adjudicated Constitution - we need to reexamine not only our understanding of Constitutionalism. More fundamentally, we need to reexamine our jurisprudential understanding of the nature of law.

Number of Pages in PDF File: 47

Keywords: poverty, public welfare, Fourteenth Amendment, Equal Proection Clause, welfare rights, economic inequalities, Constitutional obligations

JEL Classification: K00, K10, K39

Accepted Paper Series