Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of ‘New Property’
Law and History Review, Vol. 26, no. 2 (2008)
36 Pages Posted: 14 Mar 2015
Date Written: March 1, 2008
This essay uses the 1960 Supreme Court case Flemming v. Nestor to explore the relationship between Cold War anticommunism, America’s burgeoning welfare state, and Charles Reich’s influential interpretation of constitutional due process. That interpretation, set forth in Reich’s seminal article “The New Property” (1964), is often remembered for its connection to the War on Poverty, the modern welfare rights movement, and the spectacular rise and fall of constitutional protections for the poor between the late 1960s and mid-1970s. This essay reminds readers of the article’s grounding in an earlier era and a broader set of concerns. Reich’s personal glimpses of anticommunist persecution showed him how the growth of the state — even its most benign-seeming arms — could create opportunities for the enforcement of political and ideological conformity. Flemming v. Nestor encapsulated Reich’s fears: After years of paying into Social Security, longtime U.S. resident Fedya Nestor was deported to Bulgaria and his benefits revoked, on account of his dabblings with the Communist Party (or more likely, the more serious involvement of his U.S. citizen wife and stepdaughter). In what Reich later described as “the most important of all judicial decisions concerning government largess,” the Supreme Court held that Nestor had no vested property interest in the benefits he had supposedly “earned,” and hence no valid claim under the Due Process Clause. A decade later, Flemming v. Nestor remained good law, but Reich and his followers had succeeded in convincing federal judges to adopt a different view: one that recognized the coercive potential within acts of government beneficence and that expanded the ambit of constitutional due process.
Keywords: Legal history, New Property, Poverty Law, Due Process, anticommunism, welfare state, Social Security, welfare rights, civil liberties
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