Response to State Action and a New Birth of Freedom
14 Pages Posted: 1 Aug 2011
Date Written: August 1, 2011
I have just a few comments. The first comment is a contribution to the ''analytic" question posed by Professor Black's work and made explicit by Professors Peller and Tushnet's paper. To make the case for the constitutional status of welfare rights, I do not think it is sufficient-although it may well be necessary-to show that the "state action" problem is merely a pseudo-problem, whatever the reason for finding it not to be a problem. I do not agree with one of the claims put forward by Peller and Tushnet,' that Black's perceptive analysis of the state action problem in his article, Foreword: "State Action," Equal Protection, and California's Proposition 14, is in some way the "same thing" or the "same issue" as his appeal to the country and the Court twenty years later to construct an argument for the constitutional protection of social welfare rights. Even if Black, Peller and Tushnet are right to claim that the state action "problem" is a pseudo-problem, one still must make the case for social welfare rights. Whereas Black believed this, Peller and Tushnet clearly do not. I side with Black.
The second comment is intended to extend the affirmative argument for welfare rights beyond the barebones account provided in Peller and Tushnet's paper. Here, I draw on and add to Black's technical views regarding state action and his utopian views regarding the status of welfare entitlements.
The third comment is aimed at redirecting this conversation away from law and toward politics, while keeping our attention focused on the Constitution. I suggest that the case for welfare rights must be made politically, but that the Constitution should inform political argument. We are wrong to think of the Constitution as something that should guide only the deliberations of courts. With respect to welfare rights in particular, the constitutional case for welfare rights is strong, but it is one that must and should be directed to legislatures. However, this does not make the case for welfare rights any less constitutional. In this last comment, I will reflect on some of the advantages and disadvantages of engaging in a constitutionalized political discourse about welfare, rather than either a constitutionalized legal discourse on the one hand, or a purely political conversation – untouched by constitutional tropes, metaphors, or guidance – on the other.
Keywords: Gary Peller, Mark Tushnet, Charles Black, Constitution, State Action, Equal Protection, Welfare Rights, Constitutional Political Discourse
JEL Classification: K19, K39
Suggested Citation: Suggested Citation