Poverty in America

POVERTY IN AMERICA

The United States has one of the highest poverty rates of any industrialized

country in the world. Historical and political factors have created this state of affairs, 1

and these same or similar factors present great obstacles to efforts to ameliorate poverty.

The working poor and the unemployed poor alike are politically disenfranchised, which

makes it all the more difficult for meaningful legislative reform to improve conditions. 2

The misconceptions held by the middle and upper classes about the causes of poverty and

political powerlessness lead the very members of society best equipped to effect change

to blame the poor themselves and push for reforms to social programs that do nothing to

address the roots of poverty. These reform programs fail, and the cycle repeats itself.

This paper will look at statistics and journal analyses relating to poverty and the

working poor in the United States and attempt to elucidate some of the most promising

avenues for progress by advocates for the poor. In order to partly simplify a hefty

subject, I will not go far into the admittedly significant role of race and ethnicity in

American poverty. This is a conscious omission for the sake of expediency. Also, though

there will necessarily be some cross-bleeding of topics, this paper will attempt to adhere

to the following five part structure.

In part one, I will sketch a statistical outline of America’s poor, relying on

statistical information culled from a range of law review articles as well as the Census

Bureau. This should make clear, if there were any doubt, the sheer magnitude of poverty

Karen Seccombe, Families in Poverty in the 1990s: Trends, Causes, Consequences and Lessons Learned, 1

62 Journal of Marriage and the Family 1094, 1095 (November 2000).

Ann M. Burkhart, The Constitutional Underpinnings of Homelessness, 40 Hous. L. Rev. 211 (2003).2

in the United States and the number of American citizens struggling and suffering

through it.

In part two, I will examine some of the rhetoric surrounding the public welfare

and employment programs debate that has raged in America for decades, in particular the

rhetoric of those pundits and politicians who harshly criticize government aid to poor

families. Additionally, I will discuss some of the shortcomings of welfare, which seems

to address only the symptoms of poverty, and only in the short term, but does nothing to

address the pathology of the far deeper problem: Why are the poor so desperately poor,

and how do they increase their dignity and autonomy?

In part three, I will discuss some of the legal theories that have been posited in

relevant literature to support the existence of basic socioeconomic rights – rights to food,

clothing, shelter, and jobs – under principles of Constitutional, common, or natural law.

In part four, I will look at some of the efforts that have been made to secure

socioeconomic rights to the poor in the United States, their successes and, more often,

their failures.

In part five I will discuss the views some scholars take of future prospects and

strategies for advocates for the poor, before concluding with some personal reflections on

the relative merits of these prospects and strategies.

PART ONE: THE PROBLEM OF POVERTY

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996

(“the Welfare Reform Act”) was intended by its supporters, including President Bill

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Clinton, who signed the Act into law, to “end welfare as we know it.” Unfortunately, 3

although the welfare system was in need of overhauling, the changes enacted in 1996

were based on the false assumption that welfare recipients need assistance because they

do not work or they do not work enough, rather than because the jobs available to poor

Americans are underpaid and provide severely inadequate benefits. 4

The majority of poor Americans do in fact have jobs, oftentimes multiple jobs for

one person. The problem again is that employers are not held accountable for their 5

failure to pay living wages or provide health insurance. The federal minimum wage is a

joke, and federal poverty guidelines represent an official detachment from anything like

reality. The government today still calculates the poverty line using a formula that was 6

already outdated when it was first developed in 1964. This formula takes a bare bones

food budget calculated by the USDA, then multiplies it by three. The poverty line thus

shifts depending on the number of people in a given family. Critics of this method of

determining official poverty levels point out that there is no evidence the average family

spends one third of its money on food; the government formula fails to take into account

wide regional variations in cost of living; it does not measure families’ distance up or

down from the poverty line, so a family ten dollars above the line is considered not poor;

and finally this approach does not take account of social changes since the 1960s, such as

A. Mechele Dickerson, America’s Uneasy Relationship with the Working Poor, 51 Hastings L.J. 17, 61 n.3

182 (1999).

Peter Edelman, Poverty and Welfare Policy in the Post-Clinton Era, 70 Miss. L.J. 877, 879 (2001).4

Id. at 878 (“We may have a mental picture that poor people are people who do not work. That is not the 5

case. Poverty is heavily associated with work.”).

Id. at 877-78.6

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the increased costs of commuting to jobs and the costs of childcare for families with both

parents working or single-parent families where that parent works. 7

The exodus of manufacturing and assembly jobs from the United States in the last

few decades has contributed in no small measure to pandemic poverty in the twenty-first

century. Between the weakening of labor unions by the Taft-Hartley and Landrum-8

Griffin amendments to the National Labor Relations Act and the massive loss of jobs in

traditionally well unionized industries, wages and benefits for American workers have

eroded significantly, leaving low-income families and individuals to fend for themselves

on service industry incomes, unemployment and welfare checks, food stamps and

Medicaid. 9

Now, under the 1996 Welfare Reform Act, every state is different in terms of the

way and the degree in which it aids its poor. There are some federal minimum aid

guidelines respecting the elderly and some disabled people, but for able-bodied young

and middle-aged people there is wide variation across the states. Peter Edelman,

Professor of Law at Georgetown University Law Center, writes that “[t]o know what the

rights of the poor are around the country, we would need to read fifty-one statute books

and, given the variations among counties, thousands of pages of implementing

regulations and local laws.” “The assistance we afford the poor in America,” he says, 10

Seccombe, Families in Poverty in the 1990s, 62 Journal of Marriage and the Family at 1096-97.7

Beth Shulman, Making Work Pay, in ENDING POVERTY IN AMERICA: HOW TO RESTORE THE AMERICAN 8

DREAM 114, 114-15 (John Edwards et al. eds., The New Press, 2007).

Edelman, Poverty and Welfare Policy in the Post-Clinton Era, 70 Miss. L.J. at 879.9

Peter Edelman, Responding to the Wake-Up Call: A New Agenda for Poverty Lawyers, 24 N.Y.U. Rev. L. 10

& Soc. Change 547, 548 (1998).

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“is at best a patchwork, with gaping holes—a far cry from the social welfare protections

afforded by every other industrialized country.” Edelman cites several journal articles 11

“noting that European Union member states provide more types and greater amounts of

assistance and assistance for longer periods of time than does the United States” and “that

the social safety nets in many European Union states provide significantly greater

benefits than does the U.S. welfare system.” He laments the passage of the Welfare 12

Reform Act:

Because the Act of 1996 establishes block grants to states, the potential for terrible public policy looms large. The potential for good is also there, and has been realized in some states. However, too many states, including ones with large populations of poor residents, have chosen time limits shorter than five years for a family’s eligibility for help, regardless of need. Similarly, the list of states imposing punitive sanctions, including lifetime denial of eligibility, is too long. Longer still is the list of states that provide little or no help for people trying to obtain or keep jobs, especially with respect to child care, which is rarely available or too expensive, or both. 13

With such unforgiving, decentralized systems operating throughout the country, it is

apparent that America’s poor are in trouble.

Unfortunately for low-income and unemployed Americans, some politicians have

been at work destabilizing other support systems for the poor as well. As of 1998,

Congress had reduced appropriations to seventy percent of 1995 levels for the Legal

Services Corporation, the quasi-governmental agency that provides federal funding to

locally run legal services programs. In 2007 the LSC supported 138 legal aid programs

with 900 offices around the country, and it could have funded more if it had the budget.

Id. at 548.11

Edelman, Responding to the Wake-Up Call, 24 N.Y.U. Rev. L. & Soc. Change at 548 n.6.12

Id. at 551.13

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Congress has also restricted the LSC’s ability to engage in class action lawsuits and

legislative advocacy. 14

America’s poor need all the help they can get these days, from any source, and

their ranks are growing. Edelman cites an article by William J. Wilson, “The Growth of

the American Ghetto,” printed in the British newspaper, The Independent, August 16,

1999, “noting that since 1970, the growth of concentrated poverty—neighborhoods in

which at least 40% of the residents live in poverty—has been alarming; that between

1970 and 1990 the population of high poverty metropolitan neighborhoods increased by

92%; and that now around eight million people inhabit neighborhoods plagued with

problems such as eroding job markets, surging crime rates, and rapid disinvestment.” 15

The United States Census Bureau reports that in 2006 roughly 38.5 million

Americans were living below the official federal poverty line. Of those 38 million, 13

million were children under the age of eighteen, 22 million were between eighteen and

sixty-five, and 3.5 million were older than sixty-five. Almost 17 million of the 38.5

million people in poverty in 2006 were living below half the poverty line. Of the 38.5

million people living below the poverty line, 26.8 million were over sixteen years old, but

out of these only 2.3 million had worked full-time for a full year before the Census

survey was conducted. 16

Id. at 559 n.41; “LSC: Message from the President,” http://www.lsc.gov/about (last visited May 8, 2008).14

Edelman, Responding to the Wake-Up Call, 24 N.Y.U. Rev. L. & Soc. Change at 556 n.38.15

“Poverty Status in the Past 12 Months,” S1701, 2006 American Community Survey, U.S. Census Bureau, 16

http://factfinder.census.gov/servlet/STTable?_bm=y&-qr_name=ACS_2006_EST_G00_S1701&-geo_id=01000US&-ds_name=ACS_2006_EST_G00_&-_lang=en&-format=&-CONTEXT=st (last visited May 8, 2008).

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Statistics can be revealing, however official poverty statistics in the United States

hardly give the full view of the economic struggles that beset low-income people in this

country. Edelman writes:

Even if poverty were appropriately defined, and I believe the correct figure would be much higher than the current $13,000-plus poverty line for families of three, it would still be apparent that millions of people who are not poor are nonetheless struggling just to get by even though they are working as hard as they can. 17

Even under the questionable way poverty is calculated by government mathematics, one

sixth of the children in this country are classifiable as poor. Many people in the work

force earned less in 2001 than they did thirty years before. 18

Since the enactment of the 1996 Welfare Reform Act, studies around the country

have suggested that, generally:

[O]n any given day perhaps sixty percent of [former welfare recipients] have a job and forty percent do not. Because people get jobs and lose jobs all the time, the number who have a job in the course of a year is larger than sixty percent, but because many of the sixty percent will lose the jobs they now have, the number whose employment will be steady is much less than sixty percent.

The average wage of those [no longer eligible for welfare since the passage of the 1996 Act] who have a job at a given moment is about $7.00 an hour, and the average amount of work they have is around thirty-two hours a week. This means that many people working part-time are counted as employed, and are unlikely to have gotten out of poverty, and many working full-time are still poor, especially if they have three or more children. 19

Edelman elaborates on this data:

Of the relatively small number who are steadily employed and earn an income that exceeds the poverty line, many are experiencing a new problem: the loss of benefits at a rate that exceeds the growth in their income . . . In addition,

Edelman, Poverty and Welfare Policy in the Post-Clinton Era, 70 Miss. L.J. at 877-78. 17

Id. at 878.18


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many of the former recipients who are success stories in income terms get there only by holding down two jobs, and end up with little time to be good parents to their children . . .

. . . Government figures show that the ten percent of single-parent households with the lowest income actually lost about fourteen percent of their income from 1996 through 1998 because their losses of cash assistance and food stamps exceeded their gains in earnings . . .

. . . The losses of food stamps and Medicaid are often illegal. The 1996 law did not change the eligibility of families with children for food stamps and Medicaid. Nonetheless, the food stamp rolls have declined from about twenty-eight million people nationally to about eighteen million at present, and experts estimate that only about half of this drop is due to the improvement in the economy . . . Front-line workers, pressed to push recipients into the labor market, are often confused about what is allowed under the new system, and recipients, believing that all eligibility rules have changed, think they no longer qualify. In some places the story is more nefarious, with front-line workers instructed not to tell people of their rights unless a specific question is asked.

If more than three million people have disappeared in the sense of having neither a job nor welfare, and if we know they are poorer than they were before, what happened to them? Obviously they are not all homeless. Most of them probably moved in with extended family, but one wonders how stable those arrangements can possibly be . . . Some no doubt married. Some moved in with men they should not have moved in with. Some resorted to illegal activity. And the homeless shelters for women and children are overflowing in nearly every major city. This has also occurred because of the recent extensive inflation in the cost of rental housing, but the loss of assistance is a major factor. 20

This of course is only a snapshot of the situation as averaged across the nation. Some

states are doing better, and some are doing worse. Edelman adds, however, that the 21

states where the poor are doing relatively well are the states that were already working on

poverty and welfare issues before 1996, innovating new approaches. “What the new law

did,” Edelman says, “was give permission to the more punitive states to undertake

policies that the federal government was unwilling to permit under the old system.” 22

Edelman, Poverty and Welfare Policy in the Post-Clinton Era, 70 Miss. L.J. at 880-82.20

Id. at 882.21

Id. at 883.22

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As for the disparity between high-income and low-income workers, Americans making

the top five percent highest after-tax incomes enjoyed income growth of forty-seven

percent in the 1990s, while the rest of the country experienced only eight percent income

growth. And in the first decade of the twenty-first century, George W. Bush’s tax cuts

quite disproportionately are benefiting those same wealthy few. In 2006, the lowest 23

quintile of American households by income received only 3.4 percent of the all the

income earned that year. The highest quintile by income took 49.9 percent of all income

earned in the country. 24

In the 1930s, administrators and workers in Roosevelt’s public relief programs

found out first hand that the unemployed did not want handouts. They wanted jobs. But

instead of jobs, many of them got cash assistance and remained unemployed. The same 25

is true today, though, as noted in this paper, welfare programs in many states do precious

little to help very many people anymore.

Unemployment in America was over two percent for ninety-three of the hundred

years between 1898 and 1998. Sweden’s average unemployment between 1959 and 1986

was about two percent. During the same period, West Germany’s average unemployment

was 1.5 percent, and Japan’s was 1.6 percent. 26

Id. at 884. 23

Bruce H. Webster Jr. and Alemayehu Bishaw, U.S. Census Bureau, Income, Earnings, and Poverty Data 24

From the 2006 American Community Survey, p. 11 (2007). Http://www.census.gov/prod/2007pubs/acs-08.pdf (last visited April 16, 2008).

William P. Quigley, The Right to Work and Earn a Living Wage: A Proposed Constitutional Amendment, 25

2 N.Y. City L. Rev. 139, 145 (1998).

Quigley, The Right to Work and Earn a Living Wage, 2 N.Y. City L. Rev. at 165.26

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What is the cost of unemployment to society? In purely financial terms, a study

thirty years ago estimated that the national debt rises by sixteen billion dollars for each

one percent increase in the unemployment rate. However that ratio may have changed 27

over the last thirty years, unemployment remains a major burden on the United States

economy, costing us money in social programs, lost production capacity, and imposing a

heavy social cost on unemployed citizens and their families. 28

The average worker’s hourly wage has declined in value over the last twenty

years. A decline of this magnitude has not been seen in the United States since the 1930s.

In 1989, the real value of the minimum wage was less than seventy percent of what it was

in 1979. In 1998, adjusted for inflation, the minimum wage was lower in real value 29

than it was in the 1950s, 60s, or 70s. 30

Though some members of the public believe that teens hold most of the minimum

wage jobs in this country, it turns out that more than seventy percent of workers making

minimum wage are adults. A lot of these adult minimum wage workers bring in the only

income their families have to live on, and millions of workers do not even have the

minimum wage protection of the Fair Labor Standards Act because they work in jobs that

are exempt. 31

PART TWO: WELFARE AND EMPLOYMENT RHETORIC

Id. at 166.27

Id.28

Id. at 167.29

Id. at 169.30

Quigley, The Right to Work and Earn a Living Wage, 2 N.Y. City L. Rev. at 167-68.31

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Changes in the United States economy since the 1960s have negatively impacted

millions of people in terms of income and security. Conservative politicians, however,

have engaged in revisionist history, blaming welfare and welfare alone for the continued

poverty epidemic. Conservatives claim that welfare fosters irresponsibility and laziness,

and the solution they propose is to do away with welfare benefits and tell the poor to go

get jobs. This type of logic won out in the Welfare Reform Act of 1996. Edelman 32

writes that “[t]he progenitors of the Act of 1996 pandered to the mythology that those

who stay on welfare for a long time are ‘loafers’ interested only in ‘cheating the system,’

when the reality is vastly more complicated.” 33

Martha McCluskey, Professor of Law at the State University of New York at

Buffalo, suggests that the decline in popular political support for [Aid to Families with

Dependent Children] from its inception to the present day is connected to the expansion

of the program, from helping "white widows and their children" to helping "women of

color and to nonmarital children of all races." McCluskey writes, "In short, the story of 34

shifting political support for AFDC exemplifies how dominant visions of citizenship in

the United States link economic rights to race, gender, and sexual status." 35

While in this paper I have purposely avoided a discussion of the connections

between racial and gender identity, welfare, and poverty, the aforementioned observation


Edelman, Responding to the Wake-Up Call, 24 N.Y.U. Rev. L. & Soc. Change at 554.33

Martha T. McCluskey, Efficiency and Social Citizenship: Challenging the Neoliberal Attack on the 34

Welfare State, 78 Ind. L.J. 783, 800 (2003).

Id.35

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by McCluskey is useful here for another reason, as a partial explanation for the 1996

reformulation of AFDC into the Temporary Assistance to Needy Families program

(TANF). 36

What AFDC formerly provided, McCluskey argues, was increased bargaining

power in the labor market for men and women with poor families. This increase gave 37

AFDC beneficiaries some flexibility to demand jobs according them better treatment,

benefits, and wages from employers. Neoliberal economists’ problem with AFDC, 38

McCluskey writes, was that it promoted "a change in conduct [by aid recipients] that

threatened social, economic and political stratification: more power to negotiate for

different choices means more power to resist the bad choices that represent and reinforce

subordinate status." McCluskey cites evidence that American welfare policy has been 39

controlled by the labor market preferences of the social and political elite since its first

incarnation in the Aid to Dependent Children program set up by the Social Security Act

of 1935. Specifically, McCluskey says that government officials consciously worked to 40

financially protect white mothers' option to stay home and raise their children, while

simultaneously ensuring that black women would continue to be available for cheap

household labor. 41

McCluskey, Efficiency and Social Citizenship, 78 Ind. L.J. 783 at 800.36

Id. at 809-10.37

Id.38

Id. at 810.39

Id. at 799, 810-11.40

Id. at 810-811.41

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These explicit historical political biases toward welfare policies that maintain the

status quo of the labor market to the capital owners' advantage belie the neoliberal

economist's pillars of faith that “free market” forces achieve the greatest net societal

benefit and that welfare assistance and social programs interfere with this naturally

efficient process. The concept of “moral hazard” is key to understanding McCluskey’s 42

arguments. She explains:

[N]eoliberalism has used the seemingly technical economic tool of “moral hazard” to reposition AFDC from social virtue to social vice. This concept is at the center of arguments that AFDC benefits do not spill over from individual recipients to enhance society as a whole (as originally claimed), but instead produce larger negative effects that damage society. “Moral hazard” appears to shift such arguments linking welfare to social pathology away from their timeworn foundations in race, gender, and sexual status to instead ground them in seemingly more neutral questions of costly conduct.

The term “moral hazard,” which developed from insurance industry practices and has been incorporated into neoclassical economic analysis, refers to the problem that those who are “insured” (protected from bearing costs) tend to take less care to reduce those costs, to the extent those costs remain under the “insured's” control. While efficient market incentives “internalize” social costs so that self-interested individuals also act in the interest of society as a whole, redistribution (by neoclassical definition) alters the cost-benefit calculations faced by individuals so that their self-interested actions diverge from the overall interest of society. Moral hazard describes the problem that those who are protected by redistribution against the costs of certain actions will tend to increase those activities more than they would if they faced the full costs.

Applying the moral hazard theory to AFDC, critics often argued that by giving needy families income support, AFDC made more families needy. 43

McCluskey takes issue, however, with the neoliberal propagandistic belief that welfare

unnaturally redistributes wealth to the few at the expense of the many while laissez-faire

capitalism achieves market efficiency, that is the greatest good at the lowest cost:

McCluskey, Efficiency and Social Citizenship, 78 Ind. L.J. at 811.42

Id. at 807.43

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These examples of efforts to control AFDC's incentive effects—the so-called moral hazard problem—show that reducing welfare's moral hazard is about distributing, not maximizing, labor market choices and opportunities. Senator [Russell] Long worries about who does his housework . . . not about making sure more or better work or less unpaid family care or leisure gets done. 44

Describing the efforts of civil rights era southern politicians to obstruct welfare assistance

to blacks, McCluskey demystifies the concept of moral hazard as it is employed by

neoliberals to this day, "Although the term 'moral hazard' tends to be used in contexts

where it can more easily mask the moral values it promotes, this example dramatizes how

inherently moral citizenship visions, rather than impartial 'efficiency' calculations,

determine whether the bargaining power to resist bad choices is hazardous or helpful to

society." 45

Beyond the racial lines shaping welfare policy, McCluskey notes that "attention to

ADC's and AFDC's incentive effects on family behavior has long been a means of

preserving a patriarchal social order by redistributing bargaining power concerning

family formation and family care. States often designed ADC and AFDC rules to

penalize unmarried mothers so that their families would have less power to choose better

child care, wage work, and household partners; TANF continues the practice of stressing

incentives to reduce unwed motherhood. Rules penalizing unmarried women and their

children have reflected and reinforced prevailing political judgments that women's

nonmarital sexuality renders them incapable of making good moral choices." Id. at 812.


Id. at 813.45

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Clearly for all their bluster about free market forces and individual get-up-and-go,

those voices in the government and in the media that blame poverty on the welfare state

—from the national level down to the local—are aimed at preserving something far more

sinister and antidemocratic than the pristine natural wilderness of the American economy

or even the quaint industriousness of the American worker. Though some of these voices

no doubt believe their own hype, their arrows are aimed squarely at the nation's poor and

poor people's hopes for a better, fairer life. This injustice persists to this day not because

white America hates black America, or married people hate single mothers, but because

single mothers are stereotyped as sluts, young black people are stereotyped as criminals,

and the poor generally are stereotyped as indolent, stupid drunks and drug addicts. 46

These presumptive moral judgments are paired with a widespread belief in both major

political parties that government spending in general, and spending on social programs in

particular, are bad for the economy and that such spending causes inflation and

unemployment. In light of these widely held convictions, it is little wonder that the 47

modern welfare system is weakened and so many Americans in such bad shape. If

welfare recipients are morally bankrupt and social spending hurts the economy at large,

who would support aid to the poor?

Looking at welfare from another angle, McCluskey argues that modern welfare

policy proceeds from an employer-centric point of view which unquestioningly assumes

that if one group of people should bear the burden of moral hazard it should be the poor

Seccombe, Families in Poverty in the 1990s, 62 Journal of Marriage and the Family at 1098.46

See, e.g., Id. at 1107 (noting disagreement among economists as to effects of minimum wage increases).47

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and not the employers. In other words, "employers cannot or should not be pressured to

maintain the supply of labor by raising wages to a level competitive with minimal welfare

support. That is . . . employers of this cheap labor, rather than their low-waged workers,

have a right to choose among options that better suit their self-interest." If we think of 48

bargaining power as existing on two sides of a scales, it follows that the heavier and more

concentrated the power is on the employers' side, the more diluted and insubstantial the

power is on the low-wage workers' side. Thus, modern welfare reflects a policy

preference for balancing the negative effects of broad employer power on the backs of

low-wage workers and the communities suffering trickle down effects as opposed to a

scheme balancing the possible negative effects of worker empowerment on the profits of

business. McCluskey summarizes this balancing act: 49

Just as moral hazard by welfare recipients can create a 'cycle of dependency,' moral hazard by employers from the protection of inadequate welfare can create a comparable vicious cycle, often termed the 'race to the bottom,' whereby employers are increasingly dependent on keeping workers in poverty to maintain profitable production. If cheap and docile labor provides an easy means of avoiding changes and innovations that would lower the overall costs in the long run by providing better working conditions along with better profits, then that cost-protection will encourage employers to choose investments and business plans that make such 'high-road' production strategies even more difficult to achieve, locking them into arguably less efficient behavior. 50

This argument shows yet another way in which the theoretical underpinnings of anti-

welfare statism lie not in market efficiency but in classist gerrymandering of national,

state, and local labor markets.



Id. at 815.50

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Another problem with neoliberal economic theory is in determining which policy

benefits and costs accrue to the public and which remain with private individuals and

companies. The following passage from McCluskey explores the arcane illogic by which

free market capitalist thinkers conduct cost-benefit analysis:

[T]autological reasoning masks the underlying citizenship question: Whose ability to get more of what they want by shifting costs to others should count as a societal gain, and whose should count as a private gain at the expense of others? By making the market stand for the public gain, neoliberalism implicitly confers superior citizenship status on those centrally identified with the market—they are members of the public whose gains count. For example, if welfare cutbacks provide owners of a credit card telemarketing company with more cheap labor, inducing increased earnings from increased promotion of credit card debt, then the neoliberal view presents this gain as the product of market “efficiency” that benefits the public, not just particular shareholders or executives—regardless of the possible public harms from, for instance, those families' inability to provide adequate care for their children. On the other hand, if impoverished families gain from AFDC by escaping low-waged jobs, inadequate child care, or abusive spouses, then neoliberalism tends to count those gains as redistribution for private gain at the expense of the public—regardless of the possible spillover benefits to overall economic or social well-being. By designating employers' cost-savings from welfare reform as the efficient market price, not the result of (upward) redistributive policies, the neoliberal analysis constructs this government-created employer windfall as a cost-savings “earned” as part of a mutually beneficial exchange that contributes to overall well-being.

Neoliberal reasoning presumes employers' protection from the costs of cheap labor counts as a normal and voluntary resource-maximizing market, despite the role of government policies in shaping the market price of that labor and in constraining the choices of workers. And neoliberal reasoning presumes AFDC recipients' protection from the costs of cheap labor counts as coerced government intervention, despite the role of market incentives and rational self-interest maximizing in shaping their choices. Accordingly, welfare recipients do not have a right to cost-savings and resulting behavior changes from cheaper, or better, child care comparable to employers' right to cost-savings and resulting behavior changes from cheaper labor costs from welfare reform. Which gains count as normal and voluntary and which as abnormal and coerced interventions depend on unstated moral judgments about who has the right to benefit from others' constrained choices in a normal market.

By locating employers', but not welfare recipients' gains, within the market, neoliberal reasoning obscures its moral judgments about the distribution

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not only of rights to personal gain, but also of responsibilities to avoid losses to others. In the neoliberal moral hazard analysis, welfare reforms restricting benefits do not seem to give employers inefficient protection against their labor costs—because this analysis assumes that employers have no responsibility to cover the costs of working (aside from minimum wage requirements and other wage laws, perhaps). In particular, the neoliberal view assumes that capital owners do not owe workers, or the public, a living *817 wage capable of supporting workers' families or even single workers. In this view, any cost-savings to employers resulting from cheaper labor due to welfare restrictions belongs to employers as a matter of right without any reciprocal obligations: employers can change their wage-paying behavior in response to this protection without being perceived as irresponsible or dependent. In contrast, by identifying impoverished families' benefits from AFDC as government redistribution, outside of the market, neoliberal theory constructs the cost-savings from welfare received by those families as protection against costs that are the moral responsibility of those families alone. The moral hazard criticism of AFDC assumes that welfare recipients have a societal obligation to assume the costs of supporting children themselves without compensation (or to forgo the children). Their cost-savings and resulting behavior changes from welfare benefits therefore raise the possibility of dependency and potential irresponsibility that threatens good citizenship. 51

There is little or no convincing rationale for the extreme lengths to which the United

States and individual state governments have gone to preserve past prejudices, economic

fallacies, and business power structures. American law, as it relates to poverty, labor, and

business regulation, is anachronistic and only capable of explanation by reference to

prejudice, greed, and campaign finance, tempered to a trifling degree with the

compassion of a distinct political minority.

McCluskey writes that the New Deal, while it never did enshrine economic rights

as a foundational element of American law, gave expression to some people’s “new

McCluskey, Efficiency and Social Citizenship, 78 Ind. L.J. at 816-17.51

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understanding of citizenship in which the government and capital owners were obligated

to support workers and their families.” McCluskey argues: 52

The Supreme Court partly recognized this alternative citizenship vision when it overturned its Lochner-era reasoning to uphold a minimum wage law in West Coast Hotel v. Parrish. In part, Parrish explained that the law was a reasonable (and therefore constitutional) effort to correct for the harmful public effects of employers’ superior bargaining power . . .

. . . In effect, the Court portrayed the minimum wage law as reducing rather than creating moral hazard, reasoning that the law internalized costs that employers had wrongly spread to society. The Court explained, “[t]he community is not bound to provide what is in effect a subsidy for unconscionable employers” and that the community “may correct the abuse which springs from [employers’] selfish disregard of the public interest. 53

Feminist critical scholarship has also staked out fertile ground for challenging economic

exploitation in the realm of women’s family caretaking work. Many women perform 54

extremely time-consuming work at home, shopping, cooking, cleaning, and teaching and

supervising children, and this type of work goes largely uncompensated by society while

society reaps incalculable benefit from it. McCluskey says that these and other 55

“alternative visions of social citizenship” . . .

. . . reject Lochner's substance by recognizing “the market” as an inherently moral—or immoral—institution organized around a particular and politically contingent distribution of rights and responsibilities. Because these alternative visions refuse to define existing market structures as necessarily and naturally efficient—in the overall societal interest—they escape the problem that alternative distributions of rights and responsibilities are [supposedly] inherently harmful to aggregate well-being. Each [alternative vision] shifts the debate about the immorality of government protection from assistance for those at the bottom of the social hierarchy (based on class, gender, and race) to assistance for those at


Id. at 817-818.53

Id. at 818.54


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the top. Each reconstructs the increased bargaining power resulting from government protection for impoverished families as socially beneficial moral opportunity, not moral hazard. And because each focuses on poverty as a problem of harmful market privilege as well as harmful market disadvantage, each of these citizenship visions includes not just a right to be free from the most severe economic disadvantages, but a right to share in broader economic privileges.

And these alternative visions each go further than the Keynesian justification of “redistribution” because they each show that government protections altering existing market behavior do not necessarily constitute an alternative to the market (redistribution), or a correction to an otherwise neutral market (efficiency), but instead can be an alternative approach to structuring the market itself . . . These visions recognize government “interference” with the market as the norm, not the exception. They present the market as thoroughly structured by laws and ideologies that represent and enforce particular citizenship values. [William] Forbath explains how the law of “laissez-faire” capitalism has not simply facilitated free-market contracts, but has used coercive redistribution to enforce caste: for example, by giving employers property interests in workers' labor and obedience, by criminalizing unemployment, and by restricting workers' collective bargaining rights . . .

. . . Although predominant public opinion may not go as far as Forbath [and others] in reenvisioning the rights and responsibilities of citizenship, there is hardly a clear popular consensus in favor of the neoliberal assumption that the social good requires markets structured to increase employers' bargaining power relative to workers with children. Nor is it obvious that the popular support for welfare reform reflects general agreement that society will benefit from providing incentives for more low-wage jobs and less parental child care. Although white racism and patriarchal values undergird much popular sympathy with neoliberal reform arguments, popular disillusionment with AFDC's “redistribution” also may partly reflect the problem that AFDC failed to go far enough to change the distribution of bargaining power of those left insecure by the prevailing market. The three alternative visions of women on AFDC take this popular criticism of welfare “depedency” in a different direction: they recognize that social citizenship programs like AFDC have failed to support full citizenship for its recipients but explain the problem as a failure to sufficiently increase (not constrain) recipients' bargaining power (in state, market, or family).

Exposing the market as a construction of politics will not in itself change the class, race, and gender antipathy that has helped construct the current market. However, by removing the economic mask that has sheltered that antipathy and its resulting privileges from direct debate, perhaps we can better challenge the inegalitarian citizenship vision it represents. Defenders of social citizenship should look beneath the line between redistribution and efficiency to directly

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address the question of which distribution of private gains, encouraged through which government protections, will produce the greatest public good. 56

In light of the foregoing passage, it seems that further educating the public about the

politics and the constructed nature of the American economy might go a long way toward

building the broad support necessary to force a legislative restructuring for the benefit of

the many.

Beth Shulman, a lawyer and consultant concerned with low-wage workers’

issues, says there are three key steps America should take to alleviate poverty. These 57

steps are one, establishing a livable minimum wage indexed to inflation, two, creating

stronger business incentives for providing good jobs, and three, amending federal labor

laws to reempower unions and the workers they represent to effectively organize and

negotiate collective bargaining agreements. John Edwards, former United States 58

Senator from North Carolina, identifies five policy areas for heightened national focus

that closely affect America’s poor. These are jobs and wages, savings and assets,

housing, education, and community building. 59

While there are undoubtedly as many ways to address poverty in the United States

as there are opinionated people in it, common threads do present themselves. In light of

past disappointments before the Supreme Court and the overt hijacking or subtle

manipulations of government by laissez-faire conservative political factions, it is hard to

McCluskey, Efficiency and Social Citizenship, 78 Ind. L.J. at 820-822.56

Fairness Initiative on Low-Wage Work, http://www.lowwagework.org/Shulman.htm.57

See Beth Shulman, Making Work Pay, in ENDING POVERTY IN AMERICA: HOW TO RESTORE THE 58

AMERICAN DREAM 114 (John Edwards et al. eds., The New Press, 2007).

See John Edwards, Conclusion: Ending Poverty in America, in ENDING POVERTY IN AMERICA: HOW TO 59

RESTORE THE AMERICAN DREAM 256, 259-63 (John Edwards et al. eds., The New Press, 2007).

! 21

keep up hope that the Congress or the Court will enact or imply socioeconomic rights to

the fulfillment of basic needs—food, water, shelter—in the foreseeable future. A

constitutional amendment establishing those rights would be a mighty weapon in the

hands of advocates for the poor, but no such amendment is on the horizon at present. The

uninspiring truth seems to be that the best hope of America’s poor is in good old-

fashioned, persistent gruntwork. Advocates for the poor will keep pushing for change, a

better welfare system, better public understanding, and better services for the poor.

Poverty in the United States, as everywhere, is a complex problem with complex causes

and complex effects. If society is ever free of poverty, it will be through a complex 60

solution involving much better public awareness and understanding, and social services

that rebuild broken communities, teach the uneducated, train the unskilled, treat the

mental health pathologies that go disproportionately untreated in America’s poor. Finally,

and perhaps most importantly, any solution to American poverty will assure every citizen

who wants to work a job and outlaw all the rampant ways in which American employers

exploit the working person. This will require a sea change in business culture and

cherished political and economic beliefs of the citizenry and our elected representatives.

Peter Edelman, himself an ardent critic of the 1996 Welfare Reform Act, believes

that welfare reform was needed, just not the sort of reform the Act made law. The 61

problem, he writes, was that “[t]oo many people stayed on the rolls too long, primarily

because too little was done to help them get and hold jobs.” The three-pronged 62

Seccombe, Families in Poverty in the 1990s, 62 Journal of Marriage and the Family at 1107.60


Id.62

! 22

approach Edelman would have enacted would have focused on job opportunities,

education, and ameliorating the wretched living conditions that predominate in

neighborhoods with highly concentrated poverty. 63

The 1996 Welfare Reform Act was and is bad public policy, because it does not

require states to provide cash aid to poor families with children. The Act gives states

carte blanche to withhold aid for any reason or not to provide any aid at all. It also

permits the imposition of draconian time limits on families’ eligibility to receive aid. 64

The animus behind the 1996 Act, however, was nothing new to American politics.

Public cash assistance and employment programs alike have always had detractors who

claim that such government initiatives interfere with the natural progression of business

cycles, market forces, and individual responsibility. During the Hoover administration,

which coincided with the beginnings of the Great Depression, President Hoover

subscribed to the belief, clung to by conservative politicians to this day, that government

efforts to curb unemployment would disrupt the economy further by interfering with the

business cycle, unbalancing the budget, resulting in higher taxes and federal bureaucratic

encroachment on states’ rights. Not long after, President Franklin Roosevelt took the 65

opposing, empowering view that “economic laws are not made by nature. They are made

by human beings.” 66

Id.63

Id.64



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After arriving in the White House, Roosevelt and his advisors started looking at

the possibilities for federal intervention in the rampant unemployment that plagued the

nation and overburdened locally run public assistance programs. Roosevelt’s humanist 67

policy goals led in short time to the creation of the Works Progress Administration and

the Civilian Conservation Corps, among other federal jobs programs.

Critics of Roosevelt’s Works Progress Administration complained that it cost too

much and disadvantaged private businesses, among other claims. By 1940, Congress 68

had halved the WPA budget and fired workers who stayed on with WPA more than

eighteen months. The WPA limped on until 1942, but it had largely achieved its purpose

by providing jobs for millions of Americans and giving them a degree of autonomy not

experienced by the destitute unemployed. 69

Later on, at the close of World War II, the ambitious Murray Bill, which sought to

guarantee jobs, faced fervent opposition from industry leaders and conservative

politicians. These opponents argued that full employment “cannot be guaranteed in a free

society; would kill private initiative; and would lead to runaway inflation.” The bill as 70

finally enacted in the Employment Act of 1946 made “minimal progress toward the right

to a decent job at a decent day’s pay.” 71

Id.67

Id. at 148.68

Id. at 148-49.69

Id. at 156.70

Id. at 157.71

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The last major legislative attempt at a right to jobs for fair compensation, the Full

Employment and Balanced Growth Act of 1978, turned out much like the 1946 Act, a

well-meaning gesture that fell far short. 72

In spite of this history of near-success failures at guaranteeing economic rights,

William Quigley, Professor of Law at Loyola University, remains optimistic:

The search during [the twentieth century] for the right to work, for a living wage, and for full employment, is recognized as a vital part of the American political dynamic. The search will continue to clamor for action as long as Americans value work and opportunity. 73

Quigley quotes Theda Skocpol, Social Policy in the United States: Future Possibilities in Historical Perspective, p. 249 (1995):

Choosing to work for national employment assurance appears likely to remain a potentially popular political choice, although it remains to be seen if any political leadership will soon be forthcoming to devise both the policies and the suitably universalistic political alliances needed to work for this goal . . . For employment assurance accords with longstanding American values, and it would address the distresses of many groups and regions in our presently unsettled national economy. Sooner or later, therefore, a politics of employment assurance—rather than one of welfare—will surely appear on the American political scene. 74

Whether this optimism is warranted is hard to say. Americans can be quite generous

when the mood strikes them, but we are no strangers to Social Darwinist cruelty either.

PART THREE: THEORETICAL BASES OF SOCIOECONOMIC RIGHTS

Scholars and advocates for the poor have tried for decades to get the Supreme

Court behind them on enforceable socioeconomic rights, but for all its pretty words and

pretenses the Court has never found low-income people to be a suspect class for purposes


Id. at 161.73

Id.74

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of equal protection, and the Court has seldom found a due process violation in public or

private denial to the poor of the kinds of resources to which the wealthy have unfettered

access.

Quigley pragmatically suggests that since the Supreme Court has killed every

attempt by advocates for the poor to find basic socioeconomic rights implied in the text

of the Constitution, why don’t we try to amend the Federal Constitution to include such

rights explicitly? Quigley relies on the Declaration of Independence and the Preamble 75

to the Constitution, among other sources, as support for the conformance of such an

amendment with long-lived general principles of American law. Quigley also finds

undercurrents of popular support for guaranteed rights to work and receive a living wage

in twentieth century political history. 76

Quigley sums up the moral arguments for socioeconomic rights, “Work and

poverty should not co-exist.” President Roosevelt certainly would have agreed. In a 77

1937 address, Roosevelt told the Congress:

The time has arrived for us to take further action to extend the frontiers of social progress . . . Our Nation so richly endowed with natural resources and with a capable and industrious population should be able to devise ways of insuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work. 78

In 1940, Roosevelt asked the National Resources Planning Board to work on policy

proposals for preventing an economic and social backslide when World War II came to a

See generally Quigley, The Right to Work and Earn a Living Wage, 2 N.Y. City L. Rev. 139.75

See generally Quigley, The Right to Work and Earn a Living Wage, 2 N.Y. City L. Rev. 139.76

Id. at 140.77

Id. at 150 (citing FDR speech).78

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close. The NRPB produced a report that, among other things, proposed a “New Bill of

Rights.” These new rights would include:

1. The right to work, usefully and creatively, through the productive years. 2. The right to fair pay, adequate to command the necessities and amenities of

life in exchange for work, ideas, thrift and other socially valuable service. 3. The right to adequate food, clothing, shelter and medical care. 4. The right to security, with freedom from fear of old age, want, dependency,

sickness, unemployment and accident. 5. The right to live in a system of free enterprise, free from compulsory labor,

irresponsible private power, arbitrary public authority and unregulated monopolies.

6. The right to come and go, to speak or to be silent, free from the spyings of secret political police.

7. The right to equality before the law, with equal access to justice in fact. 8. The right to education, for work, for citizenship and for personal growth and

happiness. 9. The right to rest, recreation and adventure, the opportunity to enjoy and take

part in an advancing civilization. 79

The NRPB also explained that the government should safeguard these rights by formally

assuming the duty of providing jobs at fair pay to all people who are able to work but

cannot find a job. The government should devise programs for “all kinds of socially

useful work . . . arranged according to the variety of abilities and location of persons

seeking employment.” 80

In his 1941 State of the Union Address, Roosevelt spoke on the importance of

broad, strong rights:

There is nothing mysterious about the foundations of a healthy and strong democracy. The basic things expected by our people of their political and economic systems are simple. They are: Equality of opportunity for youth and for others. Jobs for those who can work. Security for those who need it. The ending of special privilege for the few. The preservation of civil liberties for all. The


Id. at 151.80

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enjoyment of the fruits of scientific progress in a wider and constantly rising standard of living. 81

In his 1944 State of the Union, Roosevelt further enunciated the government’s duty to its

people:

It is our duty now to begin to lay the plans and determine the strategy for the winning of a lasting peace and the establishment of an American standard of living higher than ever before known. We cannot be content, no matter how high the general standard of living may be, if some fraction of our people—whether it be one-third or one-fifth or one-tenth—is ill-fed, ill-clothed, ill-housed, and insecure.

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.

As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not freemen.” People who are hungry and out of a job are the stuff of which dictatorships are made. 82

Quigley cites Lester C. Thurow, The Zero-Sum Society: Distribution and the Possibilities

for Economic Change, pp. 203-4 (1980), in echo of Roosevelt’s bold words, “We

consistently preach that work is the only ‘ethical’ way to receive income. We cast

aspersions on the ‘welfare’ society. Therefore we have a moral responsibility to

guarantee full employment. Not to do so is like locking the church doors and then saying

people are not virtuous if they do not go to church.” 83

Id. at 151-52.81


Id. at 166 n.148.83

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It only makes sense that a society which values hard work and self-sufficiency

and reproaches sloth and neediness should provide its citizens the means to work hard

and support themselves and their families. A sustained campaign of public education and

dissemination of economic truth is vitally necessary if Quigley and Skocpol’s optimistic

“politics of employment assurance” is ever to take hold. 84

PART FOUR: HISTORICAL EFFORTS AT SECURING ECONOMIC RIGHTS

Various efforts were made in the twentieth century to ensure socioeconomic rights

to American citizens. Even the best-intentioned efforts, however, have ended up

weakened through political negotiation and compromise. Edelman writes, “[I]f we had

hoped we could develop a federal statutory safety net for the poor comparable to that of

European nations, we can at best claim mixed success, with a particularly sad record in

the [1990s].” In the wake of the 1996 Welfare Reform Act, he observes that “the

question of whether people can obtain help when they are in need depends more than it

has for a long time on where they live.” 85

Quigley finds at least three historical milestones suggestive of undercurrents of

popular support for guaranteed socioeconomic rights. These milestones are: President

Franklin Roosevelt’s New Deal policies and goals; the Employment Act of 1946; and

finally the Full Employment and Balanced Growth Act of 1978. 86

Id. at 161.84



! 29

While Herbert Hoover resisted calls for federal intervention in the growing

unemployment rate in the early 1930s, Franklin Delano Roosevelt quickly took action

upon taking office. In 1933, his first year in office, Roosevelt established the Civil Works

Administration and signed the Federal Emergency Relief Act. The CWA gave four

million people jobs until its termination in 1934. FERA provided monetary assistance to

the poor. These programs were the forebears of the Works Progress Administration, 87

which later in Roosevelt’s administration put millions more to work performing

government functions like “[building and improving] streets, storm sewers, grandstands,

and landing fields.” 88

The second historical milestone for economic rights Quigley cites is the

Employment Act of 1946. Toward the end of World War II, Americans of both major

political parties were concerned that unemployment would return in force when the war

effort ended. Democrats and Republicans called for policies to ensure full employment.

The so-called Murray Bill, which became the Employment Act of 1946, as initially

drafted, would have guaranteed jobs for all Americans. After many committee meetings,

political negotiations, and compromises, however, the bill was refashioned into

something far less revolutionary. The final Act sounded as a non-binding policy

statement that the federal government would work with business, agriculture, and labor to

“promote maximum employment, production, and purchasing power,” while “[fostering

and promoting] free competitive enterprise.” Though it fell far short of enshrining the 89

Id. at 146.87

Quigley, The Right to Work and Earn a Living Wage, 2 N.Y. City L. Rev. at 146, 148.88

Id. at 155-57.89

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rights that advocates for the poor hoped for, the 1946 Act was the “first explicit national

commitment to the promotion of maximum employment.” 90

Quigley’s third and final milestone for economic rights was the Full Employment

and Balanced Growth Act of 1978. Functionally closely resembling the non-binding

1946 Act, the 1978 Act “bolstered lofty goals, but lacked real authority or systemic

change to achieve its goals. As two sympathetic commentators noted, ‘[p]assage of

[FEBGA] . . . has not resolved, even temporarily, differences over the direction of

national economic policies.’ ” 91

Quigley’s analysis in some ways resembles that of Edelman, in that numerous

efforts to convince courts to find economic rights in the Constitution as it stands have

failed time and again, and these efforts are perhaps futile. Because these efforts have 92

proven unavailing, Quigley proposes that advocates for the poor take on the mammoth

project of amending the Constitution. He acknowledges that “[a]mending the

Constitution is an arduous, time-consuming, and politically challenging task.” But 93

Quigley also sees legislative and judicial impasse which, if socioeconomic rights are ever

to be realized, require advocates for the poor to find answers and solutions elsewhere. 94

PART FIVE: MOVING FORWARD IN THE TWENTY-FIRST CENTURY

Id. at 157.90

Id. at 160-61.91


Id. at 171.93

Id. at 172.94

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Peter Edelman has written prolifically on the history of government efforts to

protect the poor. He himself saw promise once upon a time in the efforts of various

advocates for the poor at convincing the Supreme Court to imply basic socioeconomic

rights, rights to food and shelter, in the federal constitution. Other scholars, such as

William Quigley, continue to discuss the possibility in the twenty-first century. Edelman,

however, writes less optimistically now about the constitutional angle.

In his review of a book on poverty law and FDR, Edelman questions whether

even a court as well-disposed to legal protections for the poor as the Warren court would

ever have found in the Constitution legally enforceable rights to food and shelter which

impose on government the affirmative obligation to provide the poor with food and

shelter when they are incapable of providing for themselves. Edelman encourages

advocates for the poor to refocus their energies on legislative remedies, community

building, and marshaling the financial, intellectual, and service resources of communities

to make things better within or without the political process. 95

One of the biggest difficulties in using the law to ameliorate the effects of poverty,

which has gone unnoticed by no one who pays attention, is that the poor are almost by

definition politically disenfranchised. People whose chief concerns are getting enough to

eat and shielding themselves from the elements are incredibly unlikely even to vote,

much less donate money to political candidates or write letters to their congressmen. And

even those members of the poor who might like to get involved face major obstacles,

including lack of transportation, education, and access to computers, internet, or other

See Peter Edelman, Book Review, Where is FDR When We Need Him? Review of The Second Bill of 95

Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever, by Cass Sunstein.

! 32

technological resources. The cards are firmly stacked against poor people creating a

movement to exert pressure on policy makers to effect real change.

No comprehensive solution to the problems of poverty in the United States will

ever succeed unless it includes a broad, centralized, multi-component program to provide

jobs, training, truly fair and livable wages, mental health and addiction treatment,

affordable housing, basic finances education, and childcare for the poor. Disjointed half-

measures coming from multifarious uncoordinated government agencies and jurisdictions

are doomed to failure, because the delivery of services under such ad hoc non-structures

is inefficient, unpredictable, and subject to periodic breakdown whenever one program

runs aground or one political entity pulls the plug on its commitments because it is no

longer politically expedient for whatever local officials might be involved.

Unfortunately, the political will to establish a centralized, heavily resource-

consuming system at the level of the federal government or the individual state

governments is lacking. There are so many causes calling out for taxpayer dollars,

national security, infrastructural building and maintenance, business incentives, etcetera,

that guaranteeing food and housing for the poor looks like a luxury we cannot afford.

Neither does it help when certain politicians take up tax breaks as their war cry, and

conventional wisdom cannot tell people whether the poor even deserve a hand, because

after all, couldn’t they go out and get jobs if they really wanted to, or if they already have

jobs, couldn’t they find better ones?

At the turn of the millennium, Edelman cautioned the advocate for the poor,

“[T]he Constitution is not our friend. If thinking about the rights of the poor means

! 33

thinking about any constitutional rights the poor have as a particular consequence of their

poverty, the short answer is, they do not have any.” Edelman goes on to cite a number 96

of 1970s cases as evidence for the proposition that the Supreme Court of the time killed

all hope for the foreseeable future that the judicial system will imply any basic

socioeconomic rights in the Constitution. Among the cases he cites are Mathews v.

Eldridge, 424 U.S. 319 (1976), “holding that due process does not require an evidentiary

hearing prior to the termination of disability benefits,” and San Antonio Indep. Sch. Dist.

V. Rodriguez, 411 U.S. 1 (1973), “concluding that education is not a fundamental right

guaranteed by the Constitution.” 97

Edelman argues that the best strategies for advocates no longer include litigating

the existence of constitutionally based socioeconomic rights. In Responding to the Wake-

Up Call, he writes:

By now this elementary point should be fully understood, but it still comes as a shock to law students who see Brown v. Board of Education as the paradigm to end all paradigms. That a single Supreme Court ruling nine to zero can establish racial or economic justice as the law of the land is a romanticized picture of litigation. 98

Edelman counsels the advocate at the turn of the millennium to focus her attention on

legislative avenues, particularly in the individual states:

[M]ore than any time since the 1930s, legislative and other governmental action affecting the poor is also occurring in state capitals and locally. The 1996


Id. at 547 n.2.97


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federal welfare law devolved a vast array of decisions to the states; many states, in turn, left a wide range of decisions to the counties. 99

“Basic relief,” he says, “is obtainable from the courts now only when a state constitution

presents an opportunity or when Congress or a state goes too far (which would have to be

way too far) in actively injuring the poor in some way.” Edelman cites Helen 100

Hershkoff, Welfare Devolution and State Constitutions, 67 Fordham L. Rev. 1403 (Mar.

1999), on state constitutional law claims, “arguing that state court interpretation of state

constitutional welfare rights could provide a significant source of protection for the poor,

as long as state courts develop an independent methodological approach that recognizes

the significant differences between state constitutions and the Federal Constitution.” 101

It is crucial to future successes for the socioeconomic rights movement that

advocates team up and strategize with other service workers to tackle poverty smartly:

The housing advocates, community-development advocates, jobs advocates, the health advocates and other types of advocates must connect with one another much more closely than they do now if we are going to make progress for the poor. Especially in neighborhoods and rural areas with a high concentration of poverty, the characteristics of geography interact with the characteristics of the people to compound problems, which cannot be solved if the specialists only operate within their specialties and do not find ways to work synergistically. 102

Edelman suggests that transactional lawyers could help “connect people and

organizations in [poor neighborhoods] with financing sources.” These lawyers, he says,

could help with the legal aspects of community development and infrastructure too,

Id. at 550-51.99

Id. at 549-50.100

Id. at 549 n.14.101

Id. at 556.102

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including land acquisition, licensing, regulatory compliance, and transportation systems

to provide residents of economically depressed areas better access to more abundant jobs

in other, more bustling business areas. 103

Stressing the importance of professional networking, Edelman says that “[t]o

maximize advocacy efforts, lawyers need to find partners in an array of fields, including

media, clergy, business and labor leadership, and philanthropy.” He proposes an 104

organizing project for the nation’s communities to undertake locally:

[O]ne proposal that I would urge on every state or city of sufficient size is the establishment of a privately funded center for poverty law, structured by analogy to the Lawyers Committee for Civil Rights. This would be an entity, with a relatively small staff, that would exist to mobilize the private bar to assist in community institution building, policy advocacy, and litigation, all toward the goal and the aim of reducing poverty. 105

Striking a note of optimism, Edelman characterizes movement failures in the judicial

system as opportunities to do better:

That the doors of the courts are shut to structural reform for the poor may be an opportunity more than a defeat. The elimination of federal entitlements now requires us to focus on alternative and multiple strategies for reducing poverty – a complex agenda that court decrees could not have effectively addressed. Similarly, the war on lawyering for the poor should call forth new initiatives and energy to extend and improve advocacy for the poor. We know much more now than we used to about what it will take to reduce poverty in America. The critical question is whether we can marshal the efforts necessary to do what must be done. 106


Id. at 558.104

Id. at 560.105

Id. at 561.106

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It is also good to note that it remains important for the advocate to encourage self-

determination on the part of the poor for whom he advocates. “[E]ffective lawyering for

the poor,” Edelman writes, “should be synergistic with efforts to empower and organize

people to advocate on their own behalf.” 107

There is hope in the building of a movement for economic justice, and a broad-

based movement is imperative. Edelman explains that “[w]ithout broader public

involvement and support, progress will continue to be limited primarily to legislative

steps that occur largely out of public view, advocated by a handful of outside experts and

pushed inside by an equally small group of caring legislators. These [legislative steps]

will typically be incremental in nature and subject to backlash whenever conservatives

decide it suits their political need to scapegoat the poor.” 108

Edelman asks the rhetorical question, “How does one create political momentum

emanating from a broadened political base? There is of course no easy or surefire answer

to the question, but the essential task is one of organizing. Deep recessions and wars

create political change but at an unacceptable cost . . . [s]o organizing is the answer.” 109

The enormous human costs of reform-via-disaster, coupled with society’s myopia

and forgetfulness, mean that even when ugly social problems are momentarily thrust into

the light of day, public consciousness quickly fades and all the lives wrecked and lost

seem to have spurred no change at all, as was evident in the aftermath of Hurricane


Id. at 886.108

Id.109

! 37

Katrina. Alexander Keyssar, like Peter Edelman, mourns the human costs of such 110

fleeting moral disaster lessons, but beyond death tolls and mass displacement, Keyssar

doubts whether society’s conscience has ever been revolutionized in a lasting way by war

or natural disaster:

As Hurricane Katrina pulled back the veil on American poverty, many news commentators openly wondered whether the scenes we were witnessing would revive the war on poverty of the 1960s. Two months later it is clear that no such revival will happen. The long history of crises and natural disasters in the United States suggests that they rarely provide auspicious moments for major policy initiatives—unless the political will for such initiatives is pre-existing or can readily be mobilized . . . [T]here will be no new national programs to aid the poor, and precious little in the way of targeted antipoverty programs in the Gulf. Perhaps the most disturbing fact that Hurricane Katrina has placed before our eyes is our society’s loss of faith in its ability to truly help the people whose faces we glimpsed in September. 111

So organizing, as Edelman rightly observes, is the answer. Public education, lobbying,

and research debunking the closely held myths of neoliberal economic theory are key.

Organizing needs to be broad-based and broadly focused, as Edelman suggests in his call

for a renewed anti-poverty movement:

A movement is needed not only to affect national policy in the short run, but also to put on the table issues that are not addressed adequately in the current dialogue: the widening gaps between rich and poor, continuing issues of race and gender, a clear sense of the responsibility of each community for those who lack a fair share. The American people are generous, volunteering in ways unheard of in other wealthy nations. Yet they often reflect a ‘disconnect,’ a failure to see the connection between the problem they are ameliorating and the issues of structure and policy that create the problem or fail to solve it on a larger scale. Why is this person homeless? Why is this child behind in school? Why do these people need a meal from a soup kitchen or food from a food pantry? Is it just a personal

Alexander Keyssar, Reminders of Poverty, Soon Forgotten, in THROUGH THE EYE OF KATRINA: SOCIAL 110

JUSTICE IN THE UNITED STATES 95, 97 (Kristin A. Bates and Richelle S. Swan eds., Carolina Academic Press, 2007).

Keyssar, Reminders of Poverty, Soon Forgotten, in THROUGH THE EYE OF KATRINA: SOCIAL JUSTICE IN 111

THE UNITED STATES at 101.

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deficiency or is there a housing shortage, a question of educational quality, a question of economic structure?” 112

Edelman would have the American people heed Roosevelt’s words in his second

inaugural address: “The test of our progress is not whether we add more to the

abundance of those who have much; it is whether we provide enough for those who have

too little.” 113

Quigley, while he refrains from prescribing the exact means by which a

guaranteed right to work for a living wage should be implemented, provides a non-

exhaustive list of possibilities, including, one, tax incentives for employers to create jobs

and retain workers, two, raising minimum wages and indexing them to inflation, and

three, borrowing from President Franklin Roosevelt the idea of a government job corps,

like the Works Progress Administration, that would employ the unemployed in such

government tasks as keeping communities clean, well-maintained, and safe. 114

Quigley’s proposed constitutional amendment would include a provision to read,

“Every person shall have the right to work and to receive a living wage for their work.” 115

Quigley is careful, however, to mention that the right to work would not be an obligation

to work. No person voluntarily unemployed would be forced to do anything, nor would

such a person receive any benefit from the amendment as proposed by Quigley. On the 116

subject of what constitutes a living wage, Quigley writes:

Edelman, Poverty and Welfare Policy in the Post-Clinton Era, 70 Miss. L.J. at 886-87.112



Id.115

Id. at 142.116

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The precise amount of money due workers will vary over time with national standards and expectations, but it is intended to cover the commonly accepted living expenses. Since it is a living wage, and because it is expected that many workers will be supporting families, the needs of those dependent on the worker must also be considered. A living wage certainly does not mean the statutory minimum wage, which is far below the wages needed for most workers and their dependents to live in dignity. The right to a living wage would become legally enforceable, with all the benefits that entails. 117

He explains the relationship between the right to work and the right to a living

wage:

Without the guarantee of a living wage, work loses some of its appeal; without the real opportunity to work, the promise of good wages is empty. The guarantees of work and living wages energize and complement each other. They must remain linked to create a strong constitutional bond for the people of this nation. 118

In support of his argument for a proposed constitutional amendment, Quigley writes:

Absent a constitutional amendment providing a right to employment at a living wage, what can we realistically expect? Most people thinking about reversing trends in unemployment, underemployment, and employment at declining wages, propose several strategies: improve education for children so present trends can be reversed; eliminate social programs for those who do not work; increase minimum wages and/or income support for those who work; train unemployed adults; offer incentives for private employers to hire the unemployed; enhance enforcement of civil rights laws in the area of housing and hiring; and increase public employment. While these strategies have some merit, they are all, to some extent, already in place and, unfortunately, they have failed to make significant progress in combating the lack of work at decent wages.

What then is the prospect for a full-employment economy if these efforts have already been tried with only modest success? With a constitutional right to work at a living wage, the nation would have to seriously re-examine these past efforts. The nation would also be forced to evaluate whether some of these efforts need to be terminated, intensified, expanded, or blended in order to meet the shared national goal. Thus, if the right to work and to earn a living wage is worth the struggle, now is the time to start the process of amending the Constitution.

Id.117


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There is no option but to give the right to an opportunity to work for a living wage constitutional protection. 119

Quigley thus suggests that, on top of the obvious benefit of amending the Constitution to

create an enforceable right to employment and a right to a living wage, the amendment

process would force America to air out the closet so to speak, compelling an honest

public discourse on the way things are and the way we would like them to be.

Quigley does not pretend that the amendment process would be easy or

unproblematic. He acknowledges that all the branches of government would have to take

significant time in sorting out the ramifications of the new law and figure out how to

implement it in the context of the multitude of other laws, constitutional and statutory,

and policy considerations. But for those who would discount the idea outright, Quigley

responds:

Fair analysis must start with an acknowledgment that the current system does not work for millions of people. The analysis must then review the possible implications of a constitutional right to work in a society that would be directing a portion of its energy into creating employment rather than merely decrying the current victimization of millions. These rights, like the minimum wage, environmental protection, and the Federal Deposit Insurance Corporation, would interfere with unfettered supply and demand. Would capitalism be able to adapt? Absolutely.

Human beings have created the current system, which works very well for some and not so well for others, and humans can modify it. The operation and inequity of the present system is a natural consequence of what has been created by America's choices. Legal realists argue that “the market itself, and therefore everything that flow[s] from market transactions, [is] structured by government.” No one may argue that present governmental and legal actions do not already have impact on the creation, retention, elimination, and compensation of jobs. This proposed amendment would refocus the direction of those laws and policies toward creating jobs. Government policy already shapes employment in issues

Id.119

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such as location, participation, and even the expansion and contraction of the total number of jobs.

Many who claim that government has no business interfering in the marketplace in reality mean that they are satisfied with the present level of government interference. Those who benefit from government interference do not want to change its position in the marketplace to benefit others. Some suggest that politics and law are the subject of a public sphere of influence. It is further suggested that this influence is distinct from economics and business, which are in a private sphere. This is little more than a wish to avoid changing the status quo and the interdependent relationship between public and private, law and economics, and politics and business.

Such criticisms have been leveled at every effort to make the economic system more human. It is not enough to say a proposal interferes with the market. The questions, rather, are whether interference is within the public interest and will it work? In order to consider how such an amendment might work, it is necessary to think about economics, justice, and law in new ways.

Undoubtedly, some critics will say an effort to guarantee everyone the right to a job will reduce the number of jobs available. Historically, labor has been unpersuaded by the arguments of business leaders that other efforts, like increased minimum wage protections for low-wage workers, would hurt the cause of workers.

Ultimately, the effect of an amendment guaranteeing everyone a right to a job and a living wage will depend on how Congress chooses to legislate the implementation of these rights, and how the judiciary chooses to evaluate these rights and their implementation. Current legal and economic arrangements leave millions unemployed and millions more working, yet still poor. A constitutional amendment guaranteeing the right to an opportunity to work and to receive a living wage is worth undertaking the tedious and uncertain process of legislative, executive, and judicial implementation. Millions would certainly agree. 120

Edelman really seems to offer the best suggestions for advancing the cause of

socioeconomic rights. Because neither the judicial, legislative, nor the executive

branches of government are doing enough to improve conditions of life for poor

Americans, advocates for the poor are duty-bound to seek alternative avenues. This by

no means signals a retreat from long-fought legal battles over what rights are enshrined in

the Constitution. Edelman himself observes that the day may yet come when the right


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Justices sit on the Supreme Court to find rights to basic food and shelter in the

Constitution. When that day arrives, advocates for the poor will have their arguments

ready, for these arguments have been articulated and explored at great length, by many

people, many times over.

The history of organized labor teaches us that the best and strongest force for

policy change is a force emanating from the affected group itself. What if we could

organize the poor or they could organize themselves? How would the group define

itself? The National Labor Relations Board is responsible for certifying appropriate

bargaining units for union elections. Does the concept of an appropriate bargaining unit

lend itself to adaptation in the context of Americans who cannot afford to buy food or pay

for housing? If America’s poor were able to form a national union-type organization for

collective bargaining, who would the organization negotiate with? What sort of

bargaining chips could it bring to the table? What would a National Poverty Relations

Board look like? The Association of Community Organizations for Reform Now

(ACORN) has had some success at organizing welfare recipients, especially those

participating in “workfare” programs, but a unified national advocacy organization for

the poor is probably just a dream, and any implementation of the idea would have to leap

some very high hurdles. 121

CONCLUSION: MANY EGGS IN MANY BASKETS

Defining the multitude of problems that we subsume under the Big Problem of

poverty is the easy part of our national conundrum. It is also only the very beginning.


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The further necessary steps of persuading the public to do something about these

problems and figuring out what to do about them are the sticking point.

Much like arguing over the meaning of life in capitalist society, the argument over

what rights if any belong to the poor is a daunting and frustrating one. This man says,

“Give them food and a place to sleep.” This woman says, “They can eat when they earn

it.” Who is right? Who can say.

It is the privilege and the damnation of American society that we live and breathe

adversarial confrontation. In politics, business, art, entertainment, education, sport, and

law, people in the United States vie for moral, intellectual, aesthetic, and physical

supremacy over one another. Theoretically this approach to life means that the best ideas

and the most accomplished or virtuous people will distinguish themselves and rise to the

top and help achieve an ideal society. In practice this is not always, not even often, the

case, but then hope springs eternal, because the next great idea or the next great

statesman could be rising this moment. The point is that while modern poverty seems an

intractable injustice, stirring heated opinions in persons of every political, moral, and

philosophical persuasion, the challenge to advocates is to see in government policy

history not an unending cycle of defeat, but a learning process and a continuously

renewed opportunity to teach politicians, judges, and laypeople alike why the poor are

poor, why it is not their fault, and why we owe them a sincere campaign to stamp out

material want.

Present and future advocates for the poor should take good account of what has

been done and what has not been done, what seems to work and what is doomed to

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failure. It is improbable that any Supreme Court will, in the foreseeable future, find or

imply socioeconomic rights in the Constitution as it exists today. Advocates should focus

on public education, community network building, legislation, and possibly a campaign

to amend the Constitution in order to cover all bases and give the socioeconomic rights

movement, small as it may be, its best chances for success.

Edelman recalls that “[t]he Kerner Commission warned in 1968 that we were in

danger of becoming two societies permanently divided by race.” He warns that “[w]e

have made progress on that front, but we have become two societies in a different way,

divided by huge gaps in income that are getting worse rather than better.” 122

The gap between rich and poor in America is about more than money and

comfort. It corresponds with a growing ideological and participatory divide, which, if

things continue thus unchecked, will only grow wider. This state of affairs is manifestly

unjust, and under perfect storm conditions it will boil over, because current trends in

wages, benefits, housing, and unemployment are unsustainable.


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Poverty in America

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