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VOLUME 112 APRIL 1999 NUMBER 6

IHARVARD LAW REVIEW

ARTICLE

POSITIVE RIGHTS AND STATE CONSTITUTIONS: THELIMITS OF FEDERAL RATIONALITY REVIEW

Helen Hershkoff

TABLE OF CONTENTS

INTRODUCTION ............................................................................................................................. 1132I. STATE CONSTITUTIONAL WELFARE PRACTICE ............................................................. 1144

A. A Mandatory Obligation: The New York Example .................................................. 1144B. A Typology of Current State Court Decisions .......................................................... 1145

IT. RECONSIDERING FEDERAL RATIONALITY REVIEW IN STATECONSTITUTIONAL WELFARE CASES ................................................................................ 1153A. Rationality Review and Positive Rights .................................................................. 1155B. Rationality Review and Democratic Legitimacy .................................................... 1157C. Rationality Review and Judicial Finality ............................................................. xi61D. Rationality Review and Federalism ......................................................................... i166E. Rationality Review Revisited .................................................................................... 1169

III. TOWARD A NEW STANDARD OF REVIEW ......................................................................... 1169A. The Need for Judicial Review .................................................................................. 1170B. Institutional Competence and Welfare Litigation ................................................... 1175

I. State Courts as Fact Gatherers ......................................................................... 11752. State Courts as Policymakers ......................................................................... " 1793. State Courts as Rights Enforcers ..................................................................... 1182

C. A Jurisprudence of Consequences .............................................................................. 1183D. Why Education and Not Welfare? ........................................................................... i86E. Implications for Welfare Litigation ........................................................................... i9i

IV. CONCLUSION ........................................................................................................................ 1194

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POSITIVE RIGHTS AND STATE CONSTITUTIONS: THELIMITS OF FEDERAL RATIONALITY REVIEW

Helen Hershkoff*

Many state courts rely on federal standards of review in their state constitutionaldecisionmaking without considering whether the institutional concerns that justify thefederal approach play out differently in the state context. In this Article, ProfessorHershkoff questions the premises of federal rationality review as applied to the adjudica-tion of claims to welfare assistance under state constitution poverty clauses. Federal ra-tionality review, she argues, rests on doubts concerning democratic legitimacy, federal-ism, and separation of powers that are not completely apposite to state common lawcourts interpreting state constitutional positive rights. When a state constitution man-dates the government provision of social services such as welfare, the relevant judicialquestion should be whether the challenged law achieves, or is at least likely to achieve,the constitutionally prescribed end, and not, as federal rationality review would have it,whether the law is within the bounds of state legislative power. Answering concerns thatenforcement of positive rights is beyond the institutional competence of state commonlaw courts, Professor Hershkoff proposes an alternative standard to federal rationalityreview for state court interpretation of state constitutional welfare rights that is conse-quential in focus and consistent with the provisional nature of state court decision-making.

The restraining power of the judiciary does not manifest its chief worth inthe few cases in which the legislature has gone beyond the lines that markthe limits of discretion. Rather shall we find its chief worth in making vo-cal and audible the ideals that might otherwise be silenced, in giving themcontinuity of life and of expression, in guiding and directing choice withinthe limits where choice ranges.'

A lmost thirty years ago, the Supreme Court refused to find a right towelfare in the Federal Constitution, contending that the "administra-

*Associate Professor of Law, New York University School of Law. A.B., Radcliffe College,Harvard University, 1973; B.A., St. Anne's College, Oxford University, 1975; J.D., Harvard LawSchool, 1978.

I thank Ed Baker, Vicki Been, Yochai Benkler, Paul Chevigny, Chris Eisgruber, Barry Fried-man, Abner Greene, Marcel Kahan, Lewis Kornhauser, Larry Kramer, Sylvia Law, Stephen Lof-fredo, Holly Maguigan, Nancy Morawetz, Burt Neuborne, Rick Pildes, Ricky Revesz, LarrySager, Linda Silberman, and Frank Upham for helpful comments on earlier drafts of this Article.I presented a version of this Article at the New York University School of Law Colloquium onConstitutional Theory, and also outlined some of its ideas at the New York University School ofLaw Review of Law and Social Change Colloquium on Confronting Welfare Reform: Strategiesfor Advocates, and at the Government Law Center of Albany Law School and the Touro CollegeJacob D. Fuchsberg Law Center Symposium on State Constitutional Law: Adjudication and Re-form. A version of my conference remarks is published as Rights and Freedoms Under the StateConstitution: A New Deal for Welfare Rights, 3 TOURo L. REV. 631 (i997). I am grateful to RonBrown for library support, and to the New York University School of Law Filomen D'Agostinoand Max E. Greenberg Research Fund. Finally, I would like to thank Dean John Sexton for en-couragement.

1 BENJAMIN N. CARDozo, THE NArURE OF THE JUDICIAL PROCESS 94 (192 1).

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19991 POSITIVE RIGHTS AND STATE CONSTITUTIONS "133

tion of public welfare assistance" raises "intractable economic, social, andeven philosophical problems" that "are not the business" of the Court.2

Since then, the Court has rejected constitutional claims to housing,3 topublic education,4 and to medical services, 5 on the view that the govern-ment does not owe its citizens any affirmative duty of care.6 Endorsing aview of the Federal Constitution as a "charter of negative rather than posi-tive liberties,"7 the Court has resisted acknowledging any "affirmativeright to government aid, even where such aid may be necessary to securelife, liberty, or property interests of which the government itself may notdeprive the individual."' Although some commentators question thenormative basis for the Court's approach,9 they generally agree that a fed-

2 Dandridge v. Williams, 397 U.S. 471, 485, 487 (197o). But see Stephen Loffredo, Poverty,

Democracy and Constitutional Law, 141 U. PA. L. REv. 1277, 1388-89 (1993) (criticizing theCourt's approach as ignoring the structural role of money in American politics).

3 See Lindsey v. Normet, 405 U.S. 56, 74 (1972) (rejecting the idea of a fundamental right tohousing). But cf Frank I. Michelman, The Advent of a Right to Housing: A Current Appraisal, 5HARv. C.R.-C.L. L. REV. 207, 209-12 (1970) (presenting arguments in favor of a constitutionalright to housing).

4 See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (rejecting education asa fundamental constitutional right). But cf Susan H. Bitensky, Theoretical Foundations for aRight to Education Under the U.S. Constitution: A Beginning to the End of the National Educa-tion Crisis, 86 Nw. U. L. REV. 550, 553 (1992) ("Doctrines interpreting the Constitution are richwith possible theoretical bases for asserting an unenumerated affirmative right to education.").

5 See Harris v. McRae, 448 U.S. 297, 318 & n.2o (i98o) (finding no constitutional obligationupon the government to provide financial assistance to indigent women seeking to exercise repro-ductive choice). But cf Wendy E. Parmet, Health Care and the Constitution: Public Health andthe Role of the State in the Framing Era, 20 HASTINGS CONST. L.Q. 267, 312-19 (1993) (using ananalysis of social contract theory and early public health laws to contend that the framers in-tended not only to empower but also to obligate the government to provide for the public health).

6 See ISAIAH BERLIN, Two Concepts of Liberty, in FouR ESSAYS ON LIBERTY 118, 122-44

(1969) (setting forth the conventional distinction between negative and positive rights); ROBERT

E. GOODIN, REASONS FOR WELFARE: THE POLITICAL THEORY OF THE WELFARE STATE 184-85 (1988) ("It is now well established that certain rights of both a negative ('security') and a posi-tive ('subsistence') kind are not only compatible with but are actually presupposed by all rightsclaims." (citations omitted)); JEREMY WALDRON, Liberal Rights: Two Sides of the Coin, inLIBERAL RIGHTS i, 6 (1993) (discussing this distinction, and emphasizing the importance of posi-tive rights to material well-being).

7 Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983). But see Susan Bandes, TheNegative Constitution: A Critique, 88 MICH. L. REV. 2271, 2278-2309 (1990) (criticizing this nega-tive conception); James E. Fleming, Constructing the Substantive Constitution, 72 TEx. L. REv.211, 211 (993) (criticizing such thin conceptions of constitutional rights as "flights from substancein constitutional theory").

8 DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, i96 (i989); cf. Griffin v.Illinois, 351 U.S. 12, 23 (i956) (Frankfurter, J., concurring) (stating that differences in wealth are"contingencies of life which are hardly within the power, let alone the duty, of a State to correct orcushion"). The Court has recognized a duty of protection owed by the government to individualsinvoluntarily committed to state custody. See, e.g., Estelle v. Gamble, 429 U.S. 97 (1976) (holdingthat prisoners have a right to government-provided medical assistance).

9 Scholars have put forward a range of normative arguments in favor of welfare rights. Theclassic formulation remains Frank Michelman's. See Frank I. Michelman, The Supreme Court,x968 Term-Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L.REV. 7 (1969) [hereinafter Michelman, On Protecting the Poor]; see also CHARLES L. BLACK, JR.,

A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED AND UNNAMED 131-39 (1997) (justifying


1134 HARVARD LAW REVIEW [Vol. 112:1131

eral constitutional welfare right, even if recognized, would not be judi-

a constitutional right to livelihood); KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CIT-

IZENSHIP AND THE CONSTITUTION 123 (I989) (defending a constitutional duty "to protect equalcitizenship against the worst ravages of material want"); Akhil Reed Amar, Forty Acres and aMule: A Republican Theory of Minimal Entitlements, 13 HARV. J.L. & PUB. POL'Y 37, 42 (1990)(grounding a right to minimal entitlements in the republican theory of the Thirteenth Amend-ment); C. Edwin Baker, Property and Its Relation to Constitutionally Protected Liberty, 134 U.PA. L. REv. 741, 76o (1986) (justifying federal "constitutional protection of individual claims to acertain quantum of property"); Charles L. Black, Jr., Further Reflections on the ConstitutionalJustice of Livelihood, 86 COLUM. L. REV. 1103, IIIO (1986) (contending that "the rights to free-dom from gnawing hunger and from preventable sickness ... form 'the matrix, the indispensablecondition, of nearly every other form' of freedom" (quoting Palko v. Connecticut, 302 U.S. 319,327 (1937))); Erwin Chemerinsky, Making the Case for a Constitutional Right to Minimum Enti-tlements, 44 MERCER L. REV. 525, 526-27 (1993) (identifying a seven-step argument for "a consti-tutional right to minimum entitlements"); Peter B. Edelman, The Next Century of Our Constitu-tion: Rethinking Our Duty to the Poor, 39 HASTINGS L.J. 1, 19-28 (1987) (arguing that the rightto subsistence is a precondition to the rights of family and personhood); William E. Forbath, WhyIs This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimaginingthe Constitution, 46 STAN. L. REV. 1771, 1790 (1994) (reviewing CASS R. SUNSTEIN, THE PAR-TIAL CONSTITUTION (1993)) (describing a concept of social citizenship that entails "decent work"and a "social minimum"); Thomas C. Grey, Procedural Fairness and Substantive Rights, in DUEPROCESS 182, 197-201 (J. Roland Pennock & John W. Chapman eds., 1977) (deriving a substan-tive right to welfare from procedural due process); Wayne McCormack, Property and Liberty -Institutional Competence and the Functions of Rights, 51 WASH. & LEE L. REv. I, 43 (I994) (ar-ticulating a "right to livelihood"); Frank I. Michelman, States' Rights and States' Roles: Permuta-tions of "Sovereignty" in National League of Cities v. Usery, 86 YALE L.J. 1165, II85 (1977)

(grounding a subsistence right in a concept of state sovereignty in which "the social-service role istreated as a part of the 'powers' reserved to the state under the Tenth Amendment, or is implicitlyascribed to the states by the Constitution as a whole"); Frank 1. Michelman, Welfare Rights in aConstitutional Democracy, 1979 WASH. U. L.Q. 659, 678-85 [hereinafter Michelman, WelfareRights] (arguing for a right to welfare as a necessary part of a constitutional democracy); Marga-ret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 989 (1982) (sketching a theory of"the needs of personhood"); Lawrence Sager, The Domain of Constitutional Justice, in CONSTI-TUTIONALISM: PHILOSOPHICAL FOUNDATIONS 235, 255 (Larry Alexander ed., 1998) (presentingan argument for the "inclusion of some concern for material well-being" in the Federal Constitu-tion); Edward V. Sparer, The Right to Welfare, in THE RIGHTS OF AMERICANS: WHAT THEYARE - WHAT THEY SHOULD BE 65, 83-84 (Norman Dorsen ed., 1971) (stating that constitu-tional "ground rules" must guarantee a "right to live" and protection to "all ... citizens againststarvation"). Compare Laurence H. Tribe, Unraveling National League of Cities: The New Feder-alism and Affirmative Rights to Essential Government Services, 90 HARv. L. REV. io65, io65-66(I977) ("[Dlespite its difficulties, a doctrine will ultimately emerge that recognizes under the fifthand fourteenth amendments constitutional rights to decent levels of affirmative governmental pro-tection in meeting the basic human needs of physical survival and security."), with LAURENCE H.TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 16 (I991) ("[I]t is quite impossi-ble to read our Constitution as including either of those two provisions [decent housing and em-ployment for all people].") See generally A. DELAFIELD SMITH, THE RIGHT TO LIFE (1955) (de-veloping one of the seminal arguments for the right to subsistence). Commentators have offerednumerous justifications for the Court's analysis. See, e.g., Robert H. Bork, The Impossibility ofFinding Welfare Rights in the Constitution, 1979 WASH. U. L.Q. 695; Richard A. Epstein, TheUncertain Quest for Welfare Rights, 1985 BYU L. REv. 201, 202-05; Henry P. Monaghan, TheConstitution Goes to Harvard, 13 HARV. C.R.-C.L. L. REV. 117, 188 (1978); Antonio CarlosPereira-Menaut, Against Positive Rights, 22 VAL. U. L. REv. 359, 373-83 0988); Ralph K. Winter,Jr., Changing Concepts of Equality: From Equality Before the Law to the Welfare State, 1979

WASH. U. L.Q. 741; Ralph K. Winter, Jr., Poverty, Economic Equality, and the Equal Protection

Clause, 1972 SUP. CT. REV. 41, 41-58.


I999] POSITIVE RIGHTS AND STATE CONSTITUTIONS "135

cially enforceable because of concerns about federalism, separation ofpowers, and institutional competence.' 0

Consistent with the states-as-laboratories metaphor," the constitutionsof the fifty states present a very different framework in which to analyzewhether government may stand by and ignore the hunger and homeless-ness of its citizens. Unlike the Federal Constitution, every state constitu-tion in the United States addresses social and economic concerns, andprovides the basis for a variety of positive claims against the govern-ment 12 Such positive rights range from the right of children to receivefree public schooling, 13 to the right of workers on public construction pro-jects to receive "prevailing" wage rates. 14 In particular, more than a dozenstate constitutions provide explicit protections for the poor.' Althoughsome commentators treat these state constitutional poverty clauses as cre-

10 See, e.g., CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 155 (1993) (suggesting that "the

right to welfare, if it exists at all, is a good candidate for membership in the class of judicially un-derenforced constitutional principles"); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW

1336 (2d ed. 1988) (referring to "the familiar difficulties with judicial enforcement of affirmativeduties"); Amar, supra note 9, at 42 (stating that "[t]here may be a variety of institutional limita-tions on courts that make them unsuitable for the task" of enforcing minimal entitlements); Tho-mas C. Grey, Property and Need: The Welfare State and Theories of Distributive Justice, 28 STAN.L. REV. 877, 900-01 (1976) (suggesting that "it may he that institutional considerations governingthe relations between the judiciary and the legislative branch will forever preclude" judicial en-forcement of subsistence rights); Michelman, Welfare Rights, supra note 9, at 684-85 (stating thatthe duty to satisfy unmet human needs "seems to be one that courts acting alone cannot or oughtnot undertake to define, impose, and enforce"); Lawrence G. Sager, Justice in Plain Clothes: Re-flections on the Thinness of Constitutional Law, 88 Nw. U. L. REV. 410, 432 (1993) [hereinafterSager, Plain Clothes) ("Basic welfare payments ... ought to be understood as constitutional enti-tiements, the primary provision of which is the constitutional responsibility of nonjudicial gov-ernmental bodies."). But see Mark Tushnet, Civil Rights and Social Rights: The Future of theReconstruction Amendments, 25 LOY. L.A. L. REV. 1207, i2Ii-i6 (1992) (arguing that socialrights such as public assistance are as appropriate a subject for judicial enforcement as are civilrights).

11 See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (de-scribing how states can serve as laboratories to "try novel social and economic experiments"). Butsee James A. Gardner, The "States-as-Laboratories" Metaphor in State Constitutional Law, 30VAL. U. L. REV. 475 (1996) (questioning the value of the "states-as-laboratories" metaphor).

12 See G. Alan Tarr, State Constitutional Politics: An Historical Perspective, in CONSTITU-

TIONAL POLITICS IN THE STATES: CONTEMPORARY CONTROVERSIES AND HISTORICAL PAT-

TERNS 3, II1-6 (G. Alan Tarr ed., 1996) [hereinafter CONSTITUTIONAL POLITICS] (tracing stateconstitutional treatment of economic issues).

13 See Allen W. Hubsch, The Emerging Right to Education Under State Constitutional Law,65 TEMP. L. REv. 1325, 1343-48 (2992) (surveying education clauses in state constitutions).

14 See, e.g., N.Y. CONST. art. I, § 17 ("No laborer, workman or mechanic, in the employ of acontractor ... engaged in the performance of any public work [shall] be paid less than the rate ofwages prevailing in the same trade or occupation in the locality within the state where such pub-lic work is to be situated, erected or used.").Is See HELEN HERSHKOFF & STEPHEN LOFFREDO, THE RIGHTS OF THE POOR- 3-4 &

nn.29-33 (1997) (discussing state constitutional rights to welfare); Burt Neuborne, Foreword: StateConstitutions and the Evolution of Positive Rights, 20 RUTGERS L.J. 88i, 893-95 & nn.60-82(1989) (describing state constitutional poverty provisions).


HARVARD LAW REVIEW

ating judicially enforceable rights to welfare, 16 and not merely as aspira-tional norms, 7 state court judges nevertheless have shown reluctance torecognize corresponding state duties.18 Instead, faced with challenges tothe adequacy or availability of welfare assistance programs, state courtsfollow the trend of post-Lochner federal constitutional law and accordgreat deference to legislative decisions. 19

In interpreting state constitutional welfare clauses, many state courtsimport the federal rationality test into their decisionmaking, but withoutconsidering whether the institutional concerns that are said to justify thefederal approach ought to play out differently in the state court context.20

Commentators widely recognize that rationality review - the deferentialmode of scrutiny that the Court applies to "garden-variety socioeconomiclegislation"' I - is "tantamount to no review at all"22 and signals that theCourt has reserved the matter for politics. A court applying rationalityreview will typically acquiesce in the government's action without regardto the "logic of legislative choices," the "wisdom" of Congressional enact-

16 See, e.g., Daan Braveman, Children, Poverty and State Constitutions, 38 EMORY L.J. 577(1989) (arguing for a judicially enforceable welfare right); Adam S. Cohen, More Myths of Parity:State Court Forums and Constitutional Actions for the Right to Shelter, 38 EMORY L.J. 6I5(1989) (same).

17 Cf. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 93 (I977) (distinguishing between con-crete and abstract rights, and defining an abstract right as "a general political aim" not subject tojudicial enforcement).

18 See, e.g., Moore v. Ganim, 233 Conn. 557, 583 (1995) ("Our reluctance to recognize govern-mental obligations based on our state constitution is consistent with the holdings of the courts ofsister states."); Sarah Ramsey & Daan Braveman, "Let Them Starve": Government's Obligation toChildren in Poverty, 68 TEMP. L. REV. 1607, 1622-34 (I995) (noting that courts currently recog-nize no affirmative state duty to remove children from poverty). But see Ann I. Park, HumanRights and Basic Needs: Using International Human Rights Norms to Inform Constitutional In-terpretation, 34 UCLA L. REV. 1195, 1255 (1987) (contending that "state courts have been moreprogressive [than federal courts] in providing protection for basic needs").

19 See, e.g., Moore, 233 Conn. at 589-91 (relying on federal precedent to reject a state constitu-tional welfare right); In re Davis, 442 N.E.2d 1227, 1231 & n.4 (N.Y. 1982) (applying rationalityreview to welfare classification, and noting that "other jurisdictions are of the same mind" (cita-tions omitted)); Daugherty v. Wallace, 621 N.E.2d 1374, 1379, 1381 (Ohio Ct. App. 1993) (relyingon federal precedent to hold that welfare classifications scrutinized under the state constitutional"happiness and safety" clause are subject to a "basic rationality standard"); Conklin v. Shinpoch,730 P.2d 643 (Wash. 1986) (declining to find welfare rights in the state privileges and immunityclause and applying rationality review).

20 See Jonathan Feldman, Separation of Powers and Judicial Review of Positive RightsClaims: The Role of State Courts in an Era of Positive Government, 24 RUTGERS L.J. 1057, 1075(1993) (stating that federal doctrine "has proven a stumbling block for a number of state courts" inenforcing positive rights); see also Jennifer Friesen, State Courts as Sources of Constitutional Law:How to Become Independently Wealthy, 72 NOTRE DAME L. REV. io65, io67 (1997) (contendingthat, "vampire-like, federal doctrine sucks the life out of fresh [state] constitutional analysis");Robert F. Williams, Methodology Problems in Enforcing State Constitutional Rights, 3 GA. ST. U.L. REV. 143, 165-71 (1986-87) (discussing state court reliance on federal doctrine).

21 Kathleen M. Sullivan, The Supreme Court, i991 Term-Foreword: The Justices of Rules andStandards, io6 HARV. L. REV. 22, 60 (1992).

22 FCC v. Beach Comms., Inc., 508 U.S. 307, 323 n.3 (i993) (Stevens, J., concurring).

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ments, or the "fairness" of statutory outcomes.23 In James BradleyThayer's classic formulation, rationality review reflects the fact that "theconstitution does not impose upon the legislature any one specific opinion,but leaves open ... [a] range of choice; and that whatever choice is ra-tional is constitutional." 24 Rather than promote a substantive conceptionof the good life,25 rationality review limits government authority by po-licing the outer boundaries of power, thus mediating institutional concernsthought to be important and even essential to the sound functioning of thefederal system.26

This Article offers a critique of the premises of federal rationality re-view as applied to state constitutional guarantees to welfare. I contendthat a state court's reliance on federal rationality review - thereby ac-cording extreme deference to state legislative decisions that affect the poor- is misplaced. Federal rationality review rests on doubts concerningdemocratic legitimacy, federalism, and separation of powers that are in-apposite to how state common law courts should function under state con-stitutions that guarantee public assistance to the poor.27 When a stateconstitution creates a right to a government-provided social service, therelevant judicial question should be whether a challenged law achieves, oris at least likely to achieve, the constitutionally prescribed end, and not, asfederal rationality review would have it, whether the law is within thebounds of state legislative power. The test of a state welfare law, to bor-row from Benjamin Cardozo, should be "one of fitness to an end,"28 for"[t]he rule that misses its aim cannot permanently justify its existence." 29

This Article is part of a larger project about state courts and state con-stitutions that I have begun to develop elsewhere.30 Commentators typi-cally describe constitutional rights as trumps that block the exercise of

23 Beach Comms., 508 U.S. at 313.24 James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7

HARV. L. REv. 129, 144 (1893).2S See Henry P. Monaghan, Marbury and the Administrative State, 83 CoLum. L. REV. 1, 33

(1983) (observing that rationality review is concerned with ultra vires acts, and not with promot-ing the public good).

26 See Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v.Flores, iii HARV. L. REV. 153, 156 (1997) ("[T]hese institutional constraints are predicated on theneed to protect the discretionary judgments of representative institutions from uncabined judicialinterference ... ."); Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Con-stitutional Norms, 91 HARV. L. REv. 1212 (1978) [hereinafter Sager, Fair Measure] (discussinginstitutional constraints on judicial enforcement of constitutional conceptions of justice).

27 Cf. Lawrence Gene Sager, Foreword: State Courts and the Strategic Space Between theNorms and Rules of Constitutional Law, 63 TEx. L. REv. 959 (I985) [hereinafter Sager, StrategicSpace] (discussing institutional constraints on state court adjudication).

28 CARDOZO, supra note i, at 103.

29 Id. at 66.30 See Helen Hershkoff, Welfare Devolution and State Constitutions, 67 FORDHAM L. REv.

goI (forthcoming Mar. I999) [hereinafter, Hershkoff, Welfare Devolution]; Helen Hershkoff, StateCourts and the "Passive Virtues": Rethinking the Judicial Function (unpublished manuscript, onfile with author) [hereinafter Hershkoff, "Passive Virtues"].

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government power and thus protect against official abuse. 31 This view of

rights is sometimes associated with the view that a constitution is a set ofnegative restraints rather than an affirmation of positive commitments. 32

State constitutions, however, establish explicit substantive goals thatregulate government power and thus declare and serve important norma-tive aims.33 For example, every state constitution mandates the estab-lishment of free public schools and requires the state to educate childrenwho live within its borders. Similarly, some state constitutions require thestate to provide social services and income support to individuals whoseindigency threatens their ability to subsist. When the state constitutionmandates a specific purpose and thus authorizes the government to carryout the stated goal, the legislature and the governor have a duty toachieve, or at least to help promote, the constitutional mandate. To bor-row from D.J. Galligan, a positive constitutional right imposes an affirma-tive obligation on the state to "realize and advance the objects and pur-poses for which.., powers have been granted. '34 So understood, positiverights not only restrain the government's exercise of power, but also com-pel its exercise, constraining the government to use its assigned authorityto carry out a specified constitutional purpose. Judicial review, in such aregime, must serve to ensure that the government is doing its job andmoving policy closer to the constitutionally prescribed end.35 The en-forcement of positive rights thus requires a state court to share explicitlyin public governance, engaging in the principled dialogue that commenta-tors traditionally associate with the common law resolution of social andeconomic issues.

In this Article, I conduct a case study of the New York State Constitu-tion Welfare Clause (Article XVI), which is an example of a state consti-

31 See DWORKIN, supra note 17, at 184-205 (presenting a view of rights as trumps).32 But see Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive

Harms, and Constitutionalism, 27 J. LEGAL STUD. 725, 727, 729 (1998) (criticizing the "portrait ofrights as Dworkinian trumps" as inappropriately "excluding appeals to the common good"); An-thony J. Sebok, The Insatiable Constitution, 70 S. CAL. L. REV. 417, 419, 420 (i997) (describingvarious "'justice-seeking' theories of constitutional interpretation ... that hold[] that the UnitedStates Constitution is a set of arrangements pointed towards the identification and enforcement ofthe requirements of political justice").

33 Commentators differ in their assessment of the importance of these goals, of their relation tostate identity and notions of community, and of their legitimacy as constitutional norms. Com-pare, e.g., Daniel J. Elazar, The Principles and Traditions Underlying American State Constitu-tions, 12 PUBLIUS II, II (1982) (arguing that state constitutions reflect "competing conceptions ofgovernment within particular states" and the values of the people), with, e.g., Robert A. Schapiro,Identity and Interpretation in State Constitutional Law, 84 VA. L. REV. 389, 394 (1998) (ques-tioning the "hunt - often, as I will suggest, a wild goose chase - for characteristic state valuesand traditions").

34 D.J. GALLIGAN, DISCRETIONAR" POWERS: A LEGAL STUDY OF OFFICIAL DISCRETION 30(1986).

35 See Hershkoff, Welfare Devolution, supra note 3o, at 1912-13.

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tutional provision that deals with the needs of the poor.36 The New YorkConstitution provides that "[t]he aid, care and support of the needy arepublic concerns and shall be provided by the state and by such of its sub-divisions, and in such manner and by such means, as the legislature mayfrom time to time determine."37 The New York Court of Appeals has in-terpreted Article XVII to impose "a positive duty upon the State,"3s1 but togrant the legislature almost unreviewable "discretion in determining themeans by which this objective is to be effectuated, in determining theamount of aid, and in classifying recipients and defining the term'needy."' 39

I focus on New York because of the broader lessons that its state con-stitutional experience presents - not only as an illustrative example, butalso as a jurisprudence that provides national guidance.40 State constitu-tions reflect specific state circumstances, but they also share many struc-tural and substantive features that allow for meaningful interstate com-parison.41 For this reason, as G. Alan Tarr observes, state constitutionalinterpretation takes place in the context of "a universe of constitutions," inwhich state judges actively rely on precedent from other jurisdictions.42

Courts and commentators justifiably regard New York welfare decisionsas templates for fashioning a nonfederal approach to state constitutionalquestions affecting the poor.43 Because Article XVII shares textual fea-tures with the provisions of other state constitutions, the New York Wel-

36 As a staff attorney with The Legal Aid Society of New York, Civil Appeals & Law Reform

Unit and Homeless Families Rights Project, and then as an associate legal director of the Ameri-can Civil Liberties Union, I participated as counsel and as anicus curiae in New York cases in-volving state constitutional claims to education and to welfare. See, e.g., Coalition for Fiscal Eq-uity v. State, 655 N.E.2d 66i (N.Y. i995) (involving a state constitutional challenge to publicfunding for New York City public schools); Thrower v. Perales, 523 N.Y.S.2d 933 (Sup. Ct. 1987)(granting preliminary injunction against the denial of cash welfare assistance to homeless destitutepersons temporarily residing in municipal shelters).

37 N.Y. CONST. art. XVII, § I.38 Tucker v. Toia, 371 N.E.2d 449,451 (N.Y. 1977).39 Id. at 452.40 Cf William E. Nelson, Patriarchy or Equality: Family Values or Individuality, 70 ST.

JOHN'S L. REV. 435, 436 & n.4 (i996) (explaining New York's illustrative importance in the dia-logue among states on state constitutional questions).

41 See Patrick Baude, Interstate Dialogue in State Constitutional Law, 28 RUTGERS LJ. 835,847-63 (1997) (setting forth a discussion of sister-state citations in state constitutional decisions);Robert F. Williams, Introduction, 28 RUTGERS LJ. 783, 783 (1997) (observing that because "stateconstitutions ... contain similar provisions, interpretation by courts and commentators can beinfluential beyond their territorial boundaries" (quoting Paul A. Freund, Foreword to I A.E. DIcKHOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA at vii, viii (1974))).

42 G. ALAN TARR, UNDERSTANDING STATE CONSTITUTIONS 199-2oo (i998) (internal quota-tion marks omitted).

43 See, e.g., Norma Rotunno, Note, State Constitutional Social Welfare Provisions and theRight to Housing, I HOFSTRA L. & POL'Y SYMP. II, 122 (1996) (observing that "[s]tates whichhave enacted ... affirmative duties in their constitutions may also serve as models for other statesto adopt similar provisions," and relying on New York as an illustrative example).

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fare Clause provides a representative example for analytic purposes.4 4

Moreover, New York's welfare jurisprudence is more developed than thatof its sister states, 45 making it more likely that its sister courts will look toit for guidance.

My emphasis on New York also comports with the New York highcourt's historic role as a "jurisprudential entrepreneur" in developing anindependent state law discourse.46 Since its establishment in 1847, theNew York Court of Appeals has generated precedent with reputationaleffects that are national in scope, 4 7 and has developed a competitive ad-vantage relative to other state judiciaries in terms of its influence and sali-ence.48 Several factors account for the court's current prominence, 49

44 Article XVII describes welfare assistance as a "public concern[]," see, e.g., MICH. CONST.

art. IV, § 51 ("matters of primary public concern"); Mo. CONST. art. IV, § 37 ("matters of primarypublic concern"); N.C. CONST. art. XI, § 4 ("one of the first duties of a civilized and Christianstate"), uses mandatory, and not hortatory language ("shall be provided"), see, e.g., ALA. CONST.art. IV, § 88 ("shall be the duty"); ALASKA CONST. art. VII, § 5 ("shall provide"); KAN. CONST.art. VII, § 4 ("shall provide"); MONT. CONST. art. XII, § 3 ("shall establish and support institu-tions"); WYO. CONST. art. VII, § 20 ("shall be the duty"), and establishes assistance to the poor ona noncategoric basis without regard to age, status, or source of indigency, see, e.g., ALA. CONST.art. IV, § 88 ("maintenance of the poor"); CAL. CONST. art. XVI, § I ("relief of hardship and desti-tution, whether such hardship and destitution results from unemployment or from other causes").

45 See Ramsey & Braveman, supra note 18, at 1624 ("New York has been the most aggressivein developing an independent state constitutional analysis of welfare issues.").

46 See Gregory A. Caldeira, The Transmission of Legal Precedent: A Study of State SupremeCourts, 79 AM. POL. Sci. REV. 178, 18o (1985) (discussing New York's highest appeals court as aregional leader with significant prestige, professionalism, and influence on sister-state decision-making); cf. Cynthia L. Cates & Wayne V. McIntosh, Retail Jurisprudence: The Judge as Entre-preneur in the Marketplace of Ideas, Iti J.L. & POL. 709, 709 (1995) (discussing the role of "'ideaentrepreneur"' in legal development).

47 At a celebration of the I5oth anniversary of the New York Court of Appeals, it was not hy-perbolic for one commentator to observe that "no other state court has generated leading case af-ter leading case in every decade for 15o years." Stewart E. Sterk, The New York Court of Appeals:150 Years of Leading Decisions, in THERE SHALL BE A COURT OF APPEALS: I50TH ANNIVER-SARY OF THE COURT OF APPEALS 49-50 (997), quoted in Judith S. Kaye, "Year in Review"Shows Court of Appeals Continuing Its Great Traditions, 42 N.Y.L. SCH. L. REV. 331, 332 & n.6(1998). Examples of such cases are numerous. See, e.g., Braschi v. Stahl Assocs., 543 N.E.2d 49(N.Y. 1989) (addressing the concept of the same-sex family); Dole v. Dow Chem. Co., 282 N.E.2d288 (N.Y. 1972) (discussing damage set-off); Pasgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y.1928) (establishing the concept of proximate causation); MacPherson v. Buick Motor Co., IIIN.E. lO5O (N.Y. 1916) (establishing manufacturer liability despite a lack of privity of contract);Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889) (establishing the rule that a legatee cannot inherit from atestator whom he has killed to prevent the testator from revoking his will).

48 See Lawrence M. Friedman, Robert A. Kagan, Bliss Cartwright & Stanton Wheeler, StateSupreme Courts: A Century of Style and Citation, 33 STAN. L. REV. 773, 8o4-o6 (1981) (discussingthe frequency of out-of-state citation to New York cases); Robert A. Kagan, Bliss Cartwright,Lawrence M. Friedman & Stanton Wheeler, The Business of State Supreme Courts, 187o-197o, 30STAN. L. REV. 121, 125 n.io (1977) (referring to a scholarly consensus that New York, Massachu-setts, and Pennsylvania possess "unusual legal prestige and influence and more than their share ofinfluential cases, which cannot be matched in scope by other states").

49 See, e.g., Luke Bierman, The Dynamics of State Constitutional Decision-Making: JudicialBehavior at the New York Court of Appeals, 68 TEMP. L. REV. 1403, 1412 (199S) ("The court ofappeals historically has been one of the nation's most important state high courts."); William J.Brennan, Jr., A Tribute to Chief Judge Charles S. Desmond, 36 BUFF. L. REv. i, 3 (1987) (dis-

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including the court's ability to draw from a rich common law tradition 0

associated with the writings and decisions of Benjamin Cardozo.5 Thestate's chief judges have also consistently encouraged the development ofan independent interpretive approach to state law issues.5 2 To the extentthat the local legal culture has created a demand for decisions based onthe state constitution, the New York court has responded by investing in-stitutional capital in this area.53 Finally, the New York example has

cussing New York as the "acknowledged leader" in state constitutional development). But cf.James A. Gardner, The Failed Discourse of State Constitutionalism, 9o MICH. L. REV. 761, 780-85 (1992) (focusing on the New York Court of Appeals in a general discussion of state constitu-tional development, but characterizing its decisions as "grudging" and suffering from "obscurity").

50 See Vincent Martin Bonventre, State Constitutionalism in New York: A Non-Reactive Tra-

dition, 2 EMERGING ISSUES ST. CONST. L. 3x, 51-54 (i989) (discussing the New York court's es7tablished tradition of judicial independence from the federal system, and of reliance on statecommon law, concerning state law issues); Marcia B. Smith, Judith S. Kaye: Progressive Deci-sionmaking Rooted in the Common Law, 59 ALB. L. REV. 1763, 1774 (i996) (noting that "ChiefJudge Kaye's common law roots support her advocacy of independent state constitutional deci-sionmaking").

51 Judith S. Kaye, Cardozo: A Law Classic, 112 HARv. L. REv. 1026, 1041-45 (iggg) (reviewing

ANDREW L. KAUFMAN, CARDozo (i999)) (discussing Cardozo's continuing influence in legal cir-cles).

52 See Vincent Martin Bonventre, New York's Chief Judge Kaye: Her Separate Opinions Bode

Well for Renewed State Constitutionalism at the Court of Appeals, 67 TEMP. L. REv. 1163, 1163,Ix64-65 (1994) (describing New York practice under Chief Judges Charles B. Breitel and Law-rence H. Cooke, but noting the unfortunate exception of the Wachtler era, when "New York wasrocked by the arrest and resignation" of the Chief Judge, and observing that "for the several yearsbefore that, the state's high tribunal had grown increasingly erratic in its application of state con-stitutional law"); cf David J. Danelski, The Influence of the Chief Justice in the Decisional Pro-cess, in COURTS, JUDGES, AND POLrTcs 568, 575-77 (Walter Murphy & C. Herman Pritchetteds., 4 th ed. 1986) (discussing the influence of chief justices in appellate decisionmaking). Thecurrent chief, Judge Judith S. Kaye, has carefully elaborated her views on state constitutions in aseries of separate opinions, see, e.g., People v. Bing, 558 N.E.2d tort, 2023 (N.Y. iggo) (Kaye, J.,concurring and dissenting) (addressing the state constitutional right to counsel); O'Neil v. Oak-grove Constr., Inc., 523 N.E.2d 277, 282 (N.Y. x988) (Kaye, J., concurring) (involving a state con-stitutional reporter's privilege, influential lectures, see, e.g., Judith S. Kaye, Dual Constitutional-ism in Practice and Principle, 6i ST. JOHN'S L. REv. 399 (1987); Judith S. Kaye, State Courts atthe Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U.L. REv. 1 (1995) [hereinafter Kaye, Dawn of a New Century], and law review articles, see, e.g.,Judith S. Kaye, Contributions of State Constitutional Law to the Third Century of American Fed-eralism, 13 VT. L. REv. 49 (2988) [hereinafter Kaye, Contributions]; Judith S. Kaye, Foreword:The Common Law and State Constitutional Law as Full Partners in the Protection of IndividualRights, 23 RUTGERS L.J. 727 (1992) [hereinafter Kaye, Foreword]; Judith S. Kaye,'A MidpointPerspective on Directions in State Constitutional Law, I EMERGING ISSUES ST. CONST. L. 27, 23(ig88). Commentators regard Chief Judge Kaye as a skilled and creative jurist, see Kevin Sack,Cuomo's Choice To Head the Court of Appeals: A Judges Judge, N.Y. TIMES, Feb. 23, 1993, at Ax(noting that "legal experts ... rank her among the brightest members of any state court in thecountry"), and frequently discuss her state constitutional jurisprudence in their more generalanalyses, see, e.g., Linda B. Matarese, Other Voices: The Role of Justices Durham, Kaye andAbrahamson in Shaping the Methodology of the "New Judicial Federalism", 2 EMERGING ISSUESST. CONST. L. 239 (I989).

53 The legal culture in New York supports the development of an independent state constitu-tional discourse. See generally Thomas W. Church, Jr., Examining Local Legal Culture, i985 AM.B. FOUND. REs. J. 449 (exploring the idea of a "local legal culture" and its impact on judicial be-havior). Legal scholars focus attention on the New York Constitution, See PETER J. GAUE, THE

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global significance as a model for established and emerging democraciesthat include positive rights in their national constitutions, 54 and for inter-national treaties, which since World War II have shown increasing atten-tion to social and economic rights.5 5 Although the question whether thesesubstantive norms are merely aspirational or can be judicially enforcedremains contested,5 6 New York's experience in judicially enforcing wel-

NEW YORK STATE CONSTITUTION: A REFERENCE GUIDE 25 (i99i) (providing a state constitu-tional history designed for courts, scholars, and practitioners); Robert F. Williams, New York'sState Constitution in National Context, 14 TOURO L. REv. 611, 613 (1998) ("New York's StateConstitution is among the better documented of the American state constitutions."). New Yorklaw schools convene conferences and symposia on New York constitutional issues. See, e.g., Sym-posium, State Constitutions: Competing Perspectives, I HOFSTRA L. & POL'Y SYMP. I (1996) (ad-dressing issues related to state constitutional conventions, the relationship between local govern-ment issues and state constitutions, and social welfare provisions in state constitutions, anddiscussing local government issues under the New York Constitution). Finally, practitioners sup-port nonfederal arguments in their court submissions. See, e.g., After Marshall and Brennan:Statement of Helen Hershkoff, ACLU Associate Legal Director (ACLU News Release, Oct. 3,i99i) (unpublished statement on file at ACLU, 125 Broad St., New York, NY) (regarding the useof state constitutional arguments).

54 See Schapiro, supra note 33, at 457 (emphasizing the relevance of state constitutional theory"to the ongoing international discussions about extending the rule of law"). Examples of nationalconstitutions following this model are numerous. See, e.g., Martha Jackman, The Protection ofWelfare Rights Under the Charter, 20 OTTAwvA L. REV. 257, 258 (1988) (demonstrating that Can-ada's Charter guarantees "freedom from the risks inherent in an industrialised society throughsocial security involving state action" (internal quotation marks omitted)); Craig Scott & PatrickMacklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New SouthAfrican Constitution, 141 U. PA. L. RE:v. I, i (1992) (defending "the African National Congress'sdecision to attempt to include certain social rights in a new South African constitution"); PatriciaM. Wald, Some Unsolicited Advice to My Women Friends in Eastern Europe, 46 SMU L. REv.557, 559 (1992) (stating that positive nghts "are common in post-World War II constitutions, in-cluding those of France, Japan and Switzerland"). Compare Herman Schwartz, Do Economic andSocial Rights Belong in a Constitution?, io AM. U. J. INT'L L. & POL'Y 1233 (1995) (arguing forinclusion of social and economic rights in new Eastern European constitutions), with Cass Sun-stein, Against Positive Rights: Why Social and Economic Rights Don't Belong in the New Consti-tutions of Post-Communist Europe, 2 E. EUR. CONST. REV. 35, 35-36 (9o3) (arguing against theinclusion of positive rights).

55 Article XVII is said to "compare[] favorably" with the humanitarian vision of the UnitedNations Declaration of Human Rights. See GALIE, supra note 53, at 262; see also, e.g., UNITED

NATIONS, INTERNATIONAL HUMAN RIGHTS INSTRUMENTS: COMPILATION OF GENERAL

COMMENTS AND GENERAL RECOMMENDATIONS ADOPTED By HUMAN RIGHTS TREATY

BODIES 57 (,997) (calling on member states "to realize progressively the full range of economic,

social and cultural rights"); European Convention for the Protection of Human Rights and Fun-damental Freedoms, Nov. 5, 1950, Europ. T.S. No. 5, 213 U.N.T.S. 221 (entered into force Sept. 3,1953); Universal Declaration of Human Rights, G.A. Res. 71, U.N. GAOR, 3 d Sess., U.N. Doc.A/8io (1948); cf. Barbara Stark, Economic Rights in the United States and International HumanRights Law: Toward an "Entirely New Strategy", 44 HASTINGS L.J. 79, 103 (1992) (discussing theconceptual similarity between state constitutional notions of economic rights and ideas expressedin the International Covenant on Economic, Social and Cultural Rights). See generally GEORGES

GURVITCH, THE BILL OF SOCIAL RIGHTS 7-50 (1946) (tracing the international commitment tosocial rights). I thank my colleague Theodor Meron for reference to the 1997 General Comments.

56 Compare HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN

CONTEXT: LAW, POLITICS, MORALS 269 (1996) (questioning whether economic and social claimsshould be constitutionalized and whether they are justiciable), with Arthur Selwyn Miller, Towarda Concept of Constitutional Duty, 1968 SUP. CT. REV. 199, 246 n.I68 (suggesting that the "judici-

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fare rights uncovers many basic assumptions in the broader debate aboutthe justiciability of economic rights.

The Article proceeds as follows. Using New York as an example, PartI sets out a typology of current state constitutional welfare practices. Thediscussion rests on the premise that state constitutional welfare clauses, ofwhich New York's Article XVII is an illustrative example, require stategovernments to achieve prescribed social goals that the state judiciariesmust enforce. Part I1 explains that a state court's use of federal rationalityreview in cases involving state constitutional positive rights is institution-ally inappropriate. Part IT offers an affirmative justification for statecourt judicial review of state constitutional welfare rights, and also an-swers concerns that such an interpretive project is outside the state judici-ary's institutional competence. Part TII then proposes an alternative stan-dard to federal rationality review for state court interpretation of stateconstitutional welfare rights. The standard that I suggest is consequentialin focus and allied in application to the test that is currently used by somestate courts in state constitutional cases challenging the adequacy of pub-lic school systems. Assessing the adequacy of government-provided serv-ices such as income support or public schooling is not easy. But the avail-ability of professional benchmarks and other sources of information toguide the court's discretion makes a more robust approach to the issue notonly judicially manageable, but also consistent with the incremental law-making function of common law courts. Part II's proposed standard hasgeneral implications for the enforcement of affirmative rights and can beapplied across jurisdictions, thus contributing to a supranational judicialdialogue about the justiciability of social and economic claims againstgovernments 7 Part IV concludes by urging courts and legislators to resistconforming state constitutional discourse to federal law and instead to de-velop an interpretive approach that more fully accounts for the affirma-tive role that state constitutions play in state governance.

ary can aid in the articulation and the furtherance of ... an [affirmative] obligation [to ensureincome adequacy]"). A similar debate exists in the Eastern European context. Compare Jon El-ster, The Impact of Rights on Economic Performance, in WESTERN RIGHTS?: POST-COMMUNISTAPPLICATION 347 (Andras Sajo ed., I996) [hereinafter WESTERN RIGHTS?] (arguing that in coun-tries undergoing economic transformations, "civil and political rights are crucial both for ensuringeconomic security and for ensuring economic efficiency"), with Ruti Teitel, Constitutional Costs toFree Market Transitions, in WESTERN RIGHTS?, supra, at 361 (contending that economic devel-opment and maintenance of socioeconomic rights are often incompatible), and Ruti Teitel, Post-Communist Constitutionalism: A Transitional Perspective, 26 COLUM. HUM. RTS. L. REV. x67,169-74 & n-13 (x994) (arguing that the decision to include welfare rights in a post-Communistconstitution depends on "the nature of the successor society's response to a predecessor constitu-tional culture of generally underenforced rights"). I thank Ruti Teitel for her informative discus-sions of post-Communist constitutionalism and its treatment of positive rights.

57 See Laurence R. Heifer & Anne-Marie Slaughter, Toward a Theory of Effective Suprana-tional Adjudication, 107 YALE LJ. 273, 386-89 (1997) (discussing the need for supranational ju-dicial dialogue).

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I. STATE CONSTITUTIONAL WELFARE PRACTICE

Using New York as a paradigmatic example, this Part sets out a typol-ogy of state constitutional welfare cases. State constitutionalism has gen-erally been described (somewhat hyperbolically) as "a vast wasteland ofconfusing, conflicting, and essentially unintelligible pronouncements. "58

Although the New York court - as is typical of state courts - has neverset out an explicit interpretive methodology for state constitutional wel-fare claims, it would be wrong to conclude that cases are decided on an adhoc, haphazard, or incoherent basis. To the contrary, one can read theNew York welfare cases as following, at least implicitly, what Mark Kel-man has more generally described as a standard form5 9 - an analyticconstruct that organizes factual material into an existing doctrinal frame- that draws significantly from Supreme Court cases applying federal ra-tionality review under the Fourteenth Amendment to social and economicclassifications. Using rationality review, federal courts, without recogniz-ing any constitutional right to welfare, enforce statutory entitlements as amatter of due process or equal protection but, absent an explicit racial orgender classification, accord the legislature virtually unfettered discretionin setting benefit levels and conditions of assistance.60 As this Part shows,Article XVII cases essentially track federal welfare doctrine by drawing aline between cases challenging the state's exclusion of needy people fromexisting welfare programs and those challenging the adequacy of suchprograms in meeting the needs of the poor.

A. A Mandatory Obligation: The New York Example

Article XVII of the New York Constitution provides that "[t]he aid,care and support of the needy are public concerns and shall be providedby the state and by such of its subdivisions, and in such manner and by

58 Gardner, supra note 49, at 763.59 See Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L.

REV. 591, 592 (1981) (discussing "the process by which conscious and unconscious constructs set-tle doctrinal issues").

60 See generally 'Tribe, supra note 9, at lO89 & n.ioo (discussing Frank Michelman, In Pursuitof Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. PA. L. REa. 962(1973), which describes the federal approach to welfare rights cases, and observing that federalcourts remedy constitutional violations in such cases through indirect means). De facto racial dis-crimination is irrelevant to the Court's use of rationality review. See Jefferson v. Hackney, 406U.S. 535, 546, 551 (1972) (applying rationality review to a claim of racially disparate welfare bene-fit levels). Moreover, burdening fundamental rights does not consistently trigger heightened re-view. Compare Lyng v. International Union, 485 U.S. 360, 362-64 (1988) (determining that with-holding food stamps from otherwise eligible households in which the working head of thehousehold is on strike is constitutional), with Shapiro v. Thompson, 394 U.S. 618 (I969) (strikingdown a welfare restriction that withheld benefits from newly arrived state residents). I was co-counsel for amicus curiae in Lyng. The Court has accepted certiorari in a case that may clarifythe standard of review to be applied to welfare classifications that infringe on fundamental rights.See Roe v. Anderson, 134 F 3 d 1400 (9th Cir. 1998) (upholding the grant of a preliminary injunc-tion against implementation of a durational residency requirement for AFDC benefits), cert.granted, 119 S. Ct. 31 (1998).

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such means, as the legislature may from time to time determine."61 Thelanguage of the New York Welfare Clause may seem to give the state leg-islature unfettered discretion in creating policies to fulfill the general direc-tive. Elsewhere, I developed a reading of Article XVII that meets this in-terpretive concern. 62 I suggested that when a state constitution commitsthe state to particular public policies, the role of the state court is to ensurethat government uses its assigned power to achieve, or at least move closerto achieving, the specified goals.63 Although the legislature retains discre-tion over how to implement the state constitutional requirements, its dis-cretion over the various "manners" and "means" is constrained by the con-stitutional mandate. In exercising review, the court would not itselfconstruct welfare policy, but rather would impose a burden on the legisla-ture to show that the chosen "manner" and "means" are likely to carryforward the specified constitutional aim.

I further argued that a reading of Article XVII that creates a manda-tory obligation best translates the Welfare Clause's motivating purposes,as set out in its social and economic context, into present concerns. 64

Adopted in 1938, Article XVII sought to redefine the relationship betweencitizen and state by establishing a state obligation, deemed to be "as fun-damental as any responsibility of government," to assist the poor.65 Aconstitutional amendment was needed to make clear that government aidfor the poor serves a public purpose for which public funds may be de-ployed, thus altering the background assumption that relief for the poor isan improper deviation from a baseline of common law entitlements.66 Inaddition, I argued that Article XVII sought to empower the state withbroad authority in order to ensure that the state has flexibility to deal withthe complex problems of poverty.67 The constitutional provision thusavoids the detailed "statutory" language of earlier constitutions and in-stead, like many New Deal provisions, assigns power in broad, open-ended terms. The grant of such legislative authority, however, did notoust the judiciary from its essential role as the enforcer of constitutionalrights.

B. A Typology of Current State Court Decisions

For heuristic purposes, this Part organizes Article XVII claims into athree-part typology that reflects the different kinds of legislative discretionat play in decisions about the distribution and allocation of public assist-

61 N.Y. CONST. art. XVII, § I.62 See Hershkoff, Welfare Devolution, supra note 30, at 1913-26.63 See id. at 1912-I3.64 See id. at 1913-26.65 Id. at 1913 (citing STATE OF NEW YORK, REVISED RECORD, PROCEEDINGS OF NEW YORK

STATE CONSTITUTIONAL CONVENTION 2126 (r938)).66 See id. at 1921; see also Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874-75

(2987) (discussing the common law baseline in constitutional decisionmaking).67 See Hershkoff, Welfare Devolution, supra note 3o, at 1923.

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ance. Any given case is, of course, significantly less tidy than this catego-rization would suggest. But. for analytic reasons it is important to try toseparate out the different aspects of legislative discretion that are at issuein welfare rights cases.68

The first category, which I call Type I, consists of cases that challengethe state's discretion to deviate from laws and regulations that define whois needy for purposes of relief.69 Judges have developed a bright-line ap-proach to such claims: the state may not deny aid to a person who meetsthe state-defined standard of need.70 The usual argument raised in aType-I claim is that the state's recognition that certain circumstances con-stitute need automatically mandates providing assistance to a claimantwho applies for relief and satisfies the substantive requirements.

Iype-I claims resonate with the positivist conception of entitlementthat Charles Reich elaborated in his now classic article, The New Prop-erty, 7' and that the Supreme Court endorsed in its landmark decision,Goldberg v. Kelly.72 In resolving Type-I claims, the New York courts re-ject the older view of welfare as a privilege - a so-called "public right" -to be granted or denied as a matter of administrative discretion. 73 Welfarebenefits are instead viewed as "a matter of statutory entitlement for per-sons qualified to receive them. '7 4 Type-I claims are not, however, merelystate iterations of federal entitlement theory. Under familiar federal con-stitutional doctrine, the property interests that are protected by federaldue process "are not created by the Constitution. '"7 5 Instead, "they arecreated and their dimensions are defined by ... an independent sourcesuch as state law."'76 By contrast, the Article XVII mandate is intended to

68 This section draws upon the typology set out in Hershkoff, cited above in note *, at 637-4 I.69 The New York Social Services Law provides that "social services officials shall ... provide

[public assistance] to needy persons ... who are determined to be eligible in accordance withstandards of need established [by the state department of social services]." N.Y. Soc. SERV. LAW§ 13 I-a (McKinney 1998).

70 The "standard of need" is a hypothetical measure that the state develops to determine eligi-bility and benefit levels for welfare programs. Historically, welfare payments have been set at alevel less than a state's standard of need. See KATHRYN A. LARIN WITH KATHRYN H. PORTER,CENTER ON BUDGET AND POLICY PRIORITIEs, ENOUGH TO LIVE ON: SETTING AN APPROPRI-

ATE AFDC NEED STANDARD at ix (I992).71 Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964). But see Mark Tushnet, The

Constitution of the Bureaucratic State, 86 W. VA. L. REV. 1077, 1078 (1984) (criticizing the posi-tivist approach to welfare issues).

72 397 U.S. 254 (1970).73 The landmark public-rights case is Murray's Lessee v. Hoboken Land & Improvement Co.,

59 U.S. (i8 How.) 272, 285 (I856) (distinguishing between deprivations that require judicial pro-cess and deprivations for which executive action is sufficient). See also Wilkie v. O'Connor, 25N.Y.S.2d 617, 620 (App. Div. 1941) (describing welfare payments as "charity"); William W. VanAlstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 8i HARV. L. REV.1439, 1461-62 (1968) (describing the "privilege" conception of government assistance as offeringcitizens little protection against official arbitrariness).

74 Goldberg, 397 U.S. at 262.75 Board of Regents v. Roth, 408 U.S. 564, 577 (972).76 Id. at 577 (1972).

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'9991 POSITIVE RIGHTS AND STATE CONSTITUTIONS "147

be enforced against the legislature, as well as against executive agencies;the protected property interests are created by the state constitution itself.

Type-I claims typically involve individuals who are poor, but whocannot - for reasons beyond their control - produce specific documentsto prove their eligibility.77 Tucker v. Toia,78 a leading example of a Type-Iclaim, involved a challenge to state regulations denying Home Relief 9

payments to youths who were considered indigent under the state's needstandard, but who could not present court orders proving that relativeswere not supporting them. Each of the plaintiffs had petitioned the courtfor such an order, but processing required "several weeks to severalmonths"; in the interim, the state denied benefits.80 Moreover, some of theplaintiffs were ultimately incapable of obtaining the required court ordersbecause their parents' whereabouts were unknown.8 ' Finding a violationof the New York Welfare Clause, the court reasoned that because the statemay not directly refuse to aid the needy, it may not indirectly refuse to doso by imposing evidentiary requirements that "hav[e] nothing to do withneed. '82 As a general matter, Article XVII has been interpreted as re-quiring the state to provide aid to all needy individuals who attempt ingood faith to prove their indigency, even if they cannot support their ap-plication with specific documentation. 3

77 The social science literature notes the practical difficulties that poor people face when at-tempting to satisfy bureaucratic requirements for public assistance. See, e.g., MADELEINE R.STONER, THE CIVIL RIGHTS OF HOMELESS PEOPLE: LAW, SOCIAL POLICY, AND SOCIAL WORKPRACTICE 58 (i995) (discussing the impact of verification requirements on the ability of homelesspeople to secure public assistance benefits). For a discussion of "bureaucratic disentitlement," seeMICHAEL LIPSKY, STREET-LEVEL BUREAUCRACY 99-139 (1980).

78 371 N.E.2d 449 (N.Y. 1977).79 Home Relief is a state-funded general assistance program for indigents who are otherwise

ineligible for federal forms of assistance. See N.Y. Soc. SERV. LAw § r57 (McKinney 1997). Seegenerally HERSHKOFF & LoFFREDo, supra note IS, at 98-1o5.

go Tucker, 37I N.E.2d at 45I.81 One plaintiff had received no support from his father, but was nevertheless denied assist-

ance "since he had not obtained a support order against his father, a man whom he has never seenand who abandoned the family home prior to his son's birth." Tucker v. Toia, 390 N.Y.S.2d 794,799 (Sup. Ct. 1977).

82 Tucker, 371 N.E.2d at 452. A similar case is Minino v. Perales, 589 N.E.2d 385 (N.Y. 1992),which involved the denial of Home Relief benefits to legal immigrants who, despite their best ef-forts, were unable to provide the welfare office with information about their sponsor's income;under state law, a sponsor's income is presumed available to the alien whether or not it is actuallyavailable. In the court of appeals, the state defended its eligibility standard on federal preemptiongrounds, but the court refused to accept the state's deviation from the standard of need based onfactors unrelated to need. Id. at 886.

3 In actual practice, many indigent people in New York continue to be denied assistance be-cause they cannot produce specific documents to prove their eligibility. See Robinson v. Grinker,Index No. 4060187 (N.Y. App. Div. Sept. 9, 1993) (on file with author) (challenging delays in theprocessing of welfare applications); see also Susan D. Bennett, "No Relief but upon the Terms ofComing into the House" - Controlled Spaces, Invisible Disentitlements, and Homelessness in anUrban Shelter System, 104 YALE L.J. 2157, 2208 n.225 (1995) (quoting Stephen Loffredo, counselin Robinson v. Grinker, who discussed the long delays in the processing of welfare applications).


HARVARD LAW REVIEW

Type-II claims involve the state's discretion to deny assistance to indi-gent people for substantive reasons unrelated to need. 4 As the New YorkCourt of Appeals explained in Lovelace v. Gross,8 5 "the Legislature's dis-cretion to ascertain and define the State standard of need is subject to ju-dicial review and must be exercised reasonably."8 6 The idea motivating1rpe-II claims is that the grant of Article XVII benefits should turn on thefactual question of which applicants are financially impoverished, and noton a policy judgment whether to provide aid only to certain categories ofindigent people. Thus, for example, in Lee v. Smith,8 7 the court of appealsstruck down the state's refusal to provide Home Relief to destitute, dis-abled individuals whose primary source of income was federal Supple-mental Security Income. 8 The state defended the exclusion as a way tominimize administrative costs. The court found this goal unrelated to theneeds of the poor and thus an insufficient basis for "irrevocably assigningthe aged, disabled and blind to the Federal program without recourse toState aid, when in many cases this means that they must survive on lesseramounts than are granted to other needy persons in the State."8' 9

Lee is a relatively unusual case: when the state can justify an exclusionas serving the goal of assisting only the economically needy, courts will notusually demand a more precise or finely tailored categorization. In Bariev. Lavine,90 for example, New York's highest court upheld the constitu-tionality of regulations allowing the temporary suspension of Home Reliefbenefits to recipients who refused to accept workfare assignments.9 1 Thecourt explained: "The Legislature may in its discretion deny aid to em-ployable persons who may properly be deemed not to be needy when theyhave wrongfully refused an opportunity for employment. '92 By so hold-

84 Some commentators link administrative discretion with the social control goals of public

assistance programs, because it enables the state to impose "standards of morality [on poor people]not imposed on the rest of the community." Charles A. Reich, Midnight Welfare Searches and theSocial Security Act, 72 YALE L.J. 1347, 1359 (1963); see also Joel F. Handler, The Transformationof Aid to Families with Dependent Children: The Family Support Act in Historical Context, 16N.Y.U. REV. L. & Soc. CHANGE 457, 459 (1987) (arguing that welfare policy "represents a deephostility to the female-headed household in poverty"); Gwendolyn Mink, Welfare Reform in His-torical Perspective, 26 CONN. L. REV. 879, 88o (1994) (describing the historical tendency to use"welfare policy as a means of enforcing gender ideology and racial control").

85 6o5 N.E.2d 339 (N.Y. 1992).

86 Id. at 343; see also Brown v. Wing, 649 N.Y.S.2d 988, 994 (Sup. Ct. 1996) (invalidating astatute limiting Home Relief benefits in the first six months of state residence on the ground thatit classifies welfare recipients by standards other than need).

87 373 N.E.2d 247 (N.Y. 1977).88 See id. at 251-52.

89 Id. at 252.

90 357 N.E.2d 349 (N.Y. 1976).91 See id. at 349-50.92 Id. at 352. The court treated as legally irrelevant the facts that the challenged regulation

denied benefits for a fixed period, even after the claimant had accepted the work referral; thatplaintiff had missed a single work appointment; and that there was no evidence of "a continuingrefusal to accept employment." Id. (Jones, J., dissenting). The trial court had found the man-dated thirty-day suspension from benefits illegal unless "limited to the period during which the

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ing, the court treated positive law as a conclusive presumption that refusalto accept employment demonstrates a lack of need without consideringany of the factors that might be behind the refusal. For example, a mothermight lack childcare for an infant; an individual might be disabled; aclaimant might lack necessary transportation to the worksite; or the em-ployer may have a record of sexual harassment or occupational safetyviolations. Rather than examine the congruence between statutory meansand constitutional ends,93 the New York courts in 'Iype-ll cases effectivelyratify legislative policy choices even when the legislature withholds assist-ance for the purpose of controlling or punishing behavior that is legal al-though the state considers it to be deviant. Although legislative burdenson fundamental interests usually trigger closer means-end scrutiny in con-stitutional decisionmaking, the resolution of Type-Il claims instead tendsto grants great deference to legislative choice,94 thereby following the"general run"95 of federal claims involving socioeconomic concerns.

The third category - Type TII - involves the state's discretion to de-fine the package of assistance provided to needy individuals. Claims inthis category challenge such matters as the level of public assistance pay-

recipient of social service benefits refuses to comply with the Work Rules." Bane v. Lavine, 358N.Y.S.2d 572, 576 (Sup. Ct. 1974).

93 See, e.g., Heiner v. Donnan, 285 U.S. 312, 329 (1932) (invalidating on due process groundsan estate tax deeming rule that created a statutory presumption without providing a fair opportu-nity to rebut it); cf. Bruce L. Ackerman, The Conclusive Presumption Shuffle, 125 U. PA. L. REv.761, 764-65 (977) (describing the conclusive presumption doctrine as a matter of federal due pro-cess analysis).

94 Jones v. Blum, 476 N.Y.S.2d 214 (App. Div. 1984), aff'd, 477 N.E.2d 620 (N.Y. 1985), uphelda state regulation that denies assistance to families whose gross income exceeds 150% of the statestandard of need, even if the net income actually available to the family is less than the standardof need. See id. at 216. The courts accepted the state's argument that the legislature possessedthe discretion to define "need" in this manner. See id. In fact, the New York legislature hadmade no need determination, but rather piggy-backed on the federal AFDC deeming rule.

In addition, Lovelace v. Gross, 80 N.Y.2d 419 (2992), involved the scope of the legislature's dis-cretion to construct standards defining neediness based on what the court regarded as economicfactors. At issue was an eligibility requirement deeming the income of a grandparent with whoma minor child lived to be available to the child even though New York law no longer obligated agrandparent to support a minor grandchild. See id. at 425; see also Home Relief, N.Y. Soc. SERV.

LAw § 131-c(2) (McKinney 1998); Aid to Families with Dependent Children, 42 U.S.C.§ 6o2(a)(39) (Supp. 2996). The court found it rational to assume that grandparents "will voluntar-ily share income with their infant grandchildren even though not legally obligated to do so," andthat three-generation households will inevitably produce economies of scale that affect an indi-vidual child's need for assistance. Lovelace, 80 N.Y.2d at 425.

Finally, in Hope v. Perales, 634 N.E.2d 183 (N.Y. 2994), the court of appeals refused to invali-date the state's denial of funding for medically necessary abortions for women who are ineligiblefor public assistance, but whose incomes are no more than 185% of the federal poverty line. Seeid. at 284. "Unlike an indigent woman," the court explained, a plaintiff in these economic circum-stances "presumptively has the financial means to exercise her fundamental right of choice." Id.at 188. According to the court, it is "bound to accept the legislative determination that (women inthese circumstances] are not indigent or in need of public assistance to meet their medical needs."Id. at 188.

95 TRiBE, supra note Io, §§ 16-31, at 2592.

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ments,96 the quality of emergency housing,97 and the refusal to provideparticular kinds of social services98 as failing to comply with the ArticleXVII mandate of providing "aid, care and support of the needy." Thestate's position in such cases is that Article XVII accords the legislatureabsolute power to define the "manner" and "means" of assistance.

Faced with Type-HI challenges, a few lower New York courts haveexamined the substantive adequacy of the benefit provided. For example,Fulton v. KrauskopP9 concerned the sufficiency of travel allowances givento homeless families to permit a parent to accompany a child to school andback. The city provided a flat grant of eighteen dollars to the parent, andnothing to the child. The court found: "The [policy] does not appear to beadequate.... The grants of assistance which are provided are meagerenough without requiring that they be depleted by genuine expenses in-curred for the schooling of children. No family should have to make thehard choice between eating and education."'100

However, cases such as Fulton are the exception rather than the rule.Type-TI claims are dominated by Bernstein v. Toia,1° 1 which upheld NewYork's adoption of a fixed, capped schedule of welfare grants in place of asystem of discretionary specia] grants. 0 2 During the egalitarian heyday ofthe r960s, special grants - discretionary payments made by case workersto households, upon request, for such everyday things as a child's overcoator bus fare to the doctor's office - became an important organizing tool

96 See, e.g., Bernstein v. Toia, 373 N.E.2d 238, 244 (N.Y. 1977) (upholding flat grants for shel-ter allowances on the view that Article XVII does not "mandate that public assistance must begranted on an individual basis in every instance"); RAM v. Blum, 432 N.Y.S.2d 892 (App. Div.i98o) (rejecting an Article XVII challenge to the state's failure to increase public assistance grantsto reflect inflation).

97 See, e.g., McCain v. Koch, 511 N.E.2d 62, 62-63 (N.Y. 1987) (affirming on equitablegrounds a preliminary injunction requiring government entities "when they have undertaken toprovide emergency housing for homeless families with children, to provide housing which satisfiesminimum standards of sanitation, safety, and decency").

98 In Callahan v. Carey, N.Y. L.J., Dec. i, 979, at io (N.Y. Sup. Ct. Dec. 5, 1979), the courtgranted a preliminary injunction requiring the City of New York to develop a plan to provideshelter to homeless men. A right to shelter was then extended on equal protection grounds tohomeless women. See Eldredge v. Koch, 459 N.Y.S.2d 960, 961 (Sup. Ct. 1983). The right toshelter was further extended on state law grounds to homeless families in McCain v. Koch, 502N.Y.S.2d 720 (App. Div. 1986), rev'd on other grounds, 511 N.E.2d 62 (N.Y. 1987), but the stateconstitutional issue was not before the highest court. See Christine Robitscher Ladd, Note, ARight to Shelter for the Homeless in New York State, 6i N.Y.U. L. REV. 272, 272-73 (1986) (pre-senting an Article XVII argument in favor of shelter rights). But see Dennis D. Hirsch, Note,Making Shelter Work: Placing Conditions on an Employable Person's Right to Shelter, ioo YALEL.J. 491, 492 (I99O) (criticizing "the establishment of an unqualified right to shelter" and discuss-ing the New York cases).

99 484 N.Y.S.2d 982 (Sup. Ct. 1984).100 Id. at 984. The court found that it was unreasonable for the City of New York to withhold

assistance from children who did not receive free bus passes from the Board of Education, or torefuse to provide additional cash payments to parents whose journey required paying multiplefares for the bus and subway. See id.

101 373 N.E.2d 238 (N.Y. 1977).102 Id. at 244.

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in the political effort to build a "welfare rights" movement103 New Yorkresponded by consolidating special grants into a flat grant system; thestate narrowed eligibility requirements and defended the revised approachas a cost-cutting measure necessitated by mounting caseloads. 104 Theplaintiffs in Bernstein challenged this policy change, carefully limitingtheir claim to the government's refusal "to make exceptions to thoseschedules when warranted"; 0 5 the court, nevertheless, recast the lawsuitas a broadside attack on the flat grant concept itself.10 6 With the case thusreconceived, a ruling in plaintiffs' favor would have exposed the state tothe slippery slope of having to "open [every welfare grant] to adjustmentin favor of individual applicants on appropriate showings.' 0 7 Recogniz-ing "the constraints of fiscal trimming," the court first rejected any Four-teenth Amendment challenge on the ground that the consolidation wasnot without "a rational relationship to the legitimate State interest ofseeking to assure optimum realized benefits from available public assist-ance moneys."'1° The court then quickly dispatched the plaintiffs' statelaw claims, ratifying (without exploring) the state's prediction that the flatgrant system "is reasonably expected to be in furtherance of the optimumutilization of public assistance funds." 0 9 Without offering any meaning-ful explanation, the court summarily declared that Article XVII extendsonly "to questions of impermissible exclusion of the needy from eligibilityfor benefits, not to the absolute sufficiency of the benefits distributed toeach eligible recipient"" 0 By contending that the administration of pub-

103 The organizing blueprint is set out in Richard A. Cloward & Frances Fox Piven's The

Weight of the Poor: A Strategy to End Poverty, 202 NATION 5io (1966), in which the authors notethat "the strategy is based on the fact that a vast discrepancy exists between the benefits to whichpeople are entitled under public welfare programs and the sums which they actually receive." Seealso JOEL F. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM: A THEORY OF LAWREFORM AND SOCIAL CHANGE 156-57 (1978) (describing two examples of welfare law reformactivities); LARRY R. JACKSON, PROTEST BY THE POOR: THE WELFARE RIGHTS MOVEMENT INNEW YORK CITY (1974) (discussing political protest and mobilization from the early 196os

through 1968); FRANCES Fox PIVEN & RICHARD A. CLOWVARD, REGULATING THE POOR: THEFUNCTIONS OF PUBLIC WELFARE 285-340 (1971) (reviewing the local consequences of the GreatSociety relief programs); JACQUELINE POPE, BITING THE HAND THAT FEEDS THEM: ORGAN-IZING WOMEN ON WELFARE AT THE GRASSROOTS LEVEL (1989) (presenting a case study of acommunity activist group comprised of welfare recipients); Ed Sparer, Fundamental HumanRights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical LegalStudies Movement, 36 STAN. L. REV. 509, 561, 565 n.I5o (1984) (explaining that "[l]iberal lawyersand their recipient allies had been using the special grants as a major organizing" effort). But seeWilliam H. Simon, Rights and Redistribution in the Welfare System, 38 STAN. L. REV. 1431,1499-1504 (1986) (characterizing the elimination of special grants as a liberal effort to rationalizewelfare delivery).

104 The Supreme Court upheld the consolidation under federal law in Rosado v. Wyman, 397U.S. 397, 421-23 (1970).

105 Bernstein, 373 N.E.2d at 241 (internal quotation marks omitted).106 See id.107 Id.10 Id. at 243.109 Id. at 244.110 Id.

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lic assistance is best handled through the elected branches, the court thusreconciled Article XVII with standard Fourteenth Amendment doc-trine. I'

This typology describes the various levels of limited scrutiny that theNew York court applies in determining whether the legislature has com-plied with Article XVII. The black-letter rule establishes the state's dutyto extend assistance to all individuals who meet the state-defined standardof need. Type-I claims raise questions about how individual claimantscan demonstrate that their economic circumstances fall within this statu-tory category of need. The court has made it clear that the state may notuse evidentiary requirements to erect a "papergate" barrier to relief. InType-I claims, the courts seem to examine procedural requirementsclosely, using a standard that. is somewhat more robust than mere ration-ality, to determine whether the requirements are associated with an as-sessment of need. Like Type-I claims, Type-i claims also deal with proofof eligibility, but differ in that they involve substantive conditions - suchas immigration status or work participation - that the state imposes as aprerequisite to relief. In these cases, the court has shown far more defer-ence to the legislature's administrative choices, tolerating virtually anycondition that can plausibly be described in economic terms as relating tothe state definition of need. Finally, Type-rnl claims challenge the ade-quacy of benefits provided, thus moving from considerations of eligibilityto assistance levels. Type-H1I claims reflect the court's highest level of def-erence to legislative decisions; the court largely remits substantive ques-tions of this kind to legislative discretion. The approach has so far trackedfederal welfare doctrine, which leaves questions of programmatic suffi-ciency to Congress and to the states. 12 Although the court maintains thatthe issues encompassed in Type-ll claims are justiciable, the strong defer-ence that the court affords the legislature effectively converts such claimsinto political questions and insulates them from judicial review."13

111 More recently, in Jiggetts v. Grinker, 553 N.E.2d 570 (N.Y. 199o), the court heard a statu-tory challenge to the sufficiency of welfare payments for rent under a state law mandating "ade-quate" allowances "having regard for the physical, mental and moral well-being" of indigent chil-dren for whose benefit the payments are made. Id. at 573 (quoting N.Y. SOC. SERV. LAWv§ 35o(I)(a)). The court noted that the Bernstein plaintiffs had not challenged the adequacy of theflat grants provided, see id. at 574 n.3, and held "that when the Legislature directed that shelterallowances 'shall be adequate,' it imposed a duty on the Commissioner to establish a schedulereasonably calculated for that purpose," id. at 575.

112 See, e.g., Jones v. Blum, 476 N.Y.S.2d 214, 216-17 (1984) (citing Dandridge v. Williams, 397U.S. 471, 485 (1970)).

113 See generally Monaghan, supra note 25, at 34 (contending that under rationality review, theCourt holds "as a matter of constitutional interpretation, that the political branches are empow-ered to achieve a broad range of goals"); Robert F. Nagel, Political Law, Legalistic Politics: A Re-cent History of the Political Question Doctrine, 56 U. CHI. L. REv. 643, 643 (1989) (explainingthat the political question doctrine "defines where political decisionmaking is appropriate,"thereby "mak[ing] an exception to a norm of judicial sovereignty over the fundamental issuescalled 'constitutional"'); Martin H. Redish, Judicial Review and the "Political Question", 79 Nw.U. L. REV. 1031, 1031 (1984-1985) (stating that the "'political question' doctrine postulates that

1152 [VoI. 112:1131



II. RECONSIDERING FEDERAL RATIONALITY REVIEw iN STATECONSTITUTIONAL WELFARE CASES

Type-rI claims best exemplify the state court's use of rationality re-view, the test that federal courts apply to determine whether social or eco-nomic legislation is constitutional." 4 Since the demise of Lochner and therise of the New Deal state, the Supreme Court has applied in such cases aform of rationality review that typically "requires only that the State's sys-tem be shown to bear some rational relationship to legitimate state pur-poses."" 5 On rare occasions, the Court will invalidate laws "rest[ing] onan irrational prejudice" that casts doubt on the asserted governmentalpurpose. 116 In the usual case, however, as long as the stated goal remainswithin the permissible scope of state power, rationality review does notpolice whether a challenged law actually serves its intended purpose.

The prevalent understanding of rationality reyiew - and its most po-tent criticism - posits that rationality review is not review at all, butrather the withholding of review, indicating a refusal to expend resourceson issues that the judiciary locates outside the constitutional domain." 7

Rationality review thus signals the Court's view that a claim does notmerit its institutional attention; the claim is instead remitted to anotherbranch of government, to whose judgment, within a very broad parame-ter, the Court defers.

Most, but not all, of economic life falls under the rubric of rationalityreview. Gender classifications command closer scrutiny of means,118 as doclassifications that touch on First Amendment interests." 9 Likewise, cer-

there exist certain issues of constitutional law that are more effectively resolved by the politicalbranches of government and are therefore inappropriate for judicial resolution" (citation omitted)).

114 See Sullivan, supra note 21, at 6o (referring to "deferential rationality review for garden-variety socioeconomic legislation").

11 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. i, 4o (r973); see also John Brigham,Constitutional Property: The Double Standard and Beyond, in JUDGING THE CONSTITUTION:CRITICAL ESSAYS ON JUDICIAL LAWMAKING x87, 188 (Michael W. McCann & Gerald L. House-man eds., 1989) [hereinafter JUDGING THE CONSTITUTION] (stating that "the Court defers to leg-islative bodies when it reviews a law passed by Congress or a state legislature on economic mat-ters"). In such cases, "purpose" refers to legislative end, not legislative motive. See Robert C.Farrell, Legislative Purpose and Equal Protection's Rationality Review, 37 VILL. L. REV. 1, 7(1992) (arguing that the legislative purpose/motive distinction should be illusory); Michael J. Perry,Substantive Due Process Revisited: Reflections on (and Beyond) Recent Cases, 71 Nw. U. L.REV. 417, 422 (1976) (distinguishing between the achievement of objectives and the legitimacy ofobjectives for due process analysis).

116 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 450 (1985) (invalidating a re-quirement of a special use permit for a proposed group home for the mentally retarded); see, e.g.,Romer v. Evans, 517 U.S. 62o, 631-36 (1996) (invalidating an initiative that withdrew politicalrights from lesbians and gay men); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 537-38 (1973)(invalidating the exclusion of "hippies" from a food stamp program).

117 See Loffredo, supra note 2, at 1282-84; Sager, Plain Clothes, supra note io, at 410.118 See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994) (declaring that "all gender-

based classifications" are subject to "heightened scrutiny").119 See, e.g., 'irner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 653-61 (1994) (reviewing under the

First Amendment the basis for "must-carry" cable rules).

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tan claims under the Commerce Clause require a closer means-end fit. 120

Explicit race classifications are per se illegal, but de facto racial classifica-tions receive only minimal scrutiny. 1 2 As to the rest, Lawrence G. Sageraptly comments:

After threats to speech, religion, and the narrow band of activities that fallunder the rubric of privacy, after the disfavor of persons because of theirrace or gender (or possibly, because of their nationality or the maritalstatus of their parents), and after lapses from fairness in criminal process,the attention of the constitutional judiciary rapidly falls off. By default,everything else falls in the miasma of economic rights.... The most vividdiscrepancy between constitutional case law and political justice concernsa particular aspect of our economic life - the welfare of the poor.' 22

Rationality review may thus be criticized as lacking "an affirmativeview of ... constitutional values to be upheld," and as motivated only"by a vision of the bounds of judicial behavior.' 1 23 Under the ration-ality standard, the Court functions as an umpire whose sole job is tomaintain legislative power within institutional limits, not to ensurethat power is used to reach a prescribed end. 12 4 Nevertheless, formany courts and commentators, rationality review remains a norma-tive ideal of judicial restraint, reflecting a theory of how the federalcourt can best retain legitimacy in the face of concerns about democ-racy, federalism, and separation of powers.12 5 This Part sets out theassumptions that support rationality review and illustrates their lack ofmeaningful fit with the institutional and substantive position of statecourts adjudicating state constitutional welfare claims. 126

120 See Stephen Loffredo, "If You Ain't Got the Do, Re, Mi": The Commerce Clause and StateResidence Restrictions on Welfare, II YALE L. & POL'Y REV. 147, 178-89 (1993) (describing thehigher Commerce Clause standard).

121 Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (noting that "[p]rivate [racial] biases may beoutside the reach of the law, but the law cannot, directly or indirectly, give them effect').

122 Sager, Plain Clothes, supra note io, at 410-Il123 Erwin Chemerinsky, The Supreme Court, 1988 Term--Foreword: The Vanishing Constitu-

tion, 103 HARV. L. REV. 43, 49 (i989).124 Cf Paul A. Freund, Umpiring the Federal System, 54 COLUM. L. REv. 561, 567 (954) (de-

scribing judicial review generally as a restraint on state action). For a criticism of the Court'smeans-end analysis, see Michael C. Dorf & Charles E Sabel, A Constitution of Democratic Ex-perimentalism, 98 COLUM. L. REV. 267, 387-403 (1998).

125 See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME

COURT AT THE BAR OF POLITICS 35-45 (1962) (endorsing James Bradley Thayer's view of judi-cial review in cases involving congressional power and not constitutional limitations).

126 Earlier work in a number of areas has emphasized institutional differences between stateand federal courts. See Akhil Reed Amar, A Neo-Federalist View of Article III: Separating theTwo Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 238 & n.i15 (1985) (discussing the institu-tional differences in relation to congressional control of Article III jurisdiction); Braveman, supranote i6, at 577-78 (discussing the institutional differences in relation to state court enforcement ofstate constitutional welfare rights); Cohen, supra note 16, at 645-56 (same); Robert M. Cover & T.Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 YALE L.J. 1035,1050-51 (1977) (discussing the institutional differences in relation to criminal justice); Geoffrey C.Hazard, Jr., Reflections on the Substance of Finality, 70 CORNELL L. REV. 642, 646-47 (1985)(discussing the institutional differences in relation to the Erie doctrine); Hans A. Linde, Judges,

1154 [Vol. I 12:113i1


1999] POSITIVE RIGHTS AND STATE CONSTITUTIONS "155

A. Rationality Review and Positive Rights

Federal rationality review rests on a baseline assumption that the U.S.Constitution does not guarantee positive rights against the government, 127

giving rise to "a concomitant suspicion of any claim that seems to dependon such rights.' ' 128 In a notorious application of this view, the Court foundno violation of federal constitutional rights when state social serviceworkers, despite warnings of danger, "took no action" to remove a four-year-old boy from the home of his physically abusive father, who then in-flicted "brain damage so severe" on his son that the child was "expected tospend the rest of his life confined to an institution for the profoundly re-tarded.12 9 As the Court explained, the Due Process Clause "is phrased asa limitation on the State's power to act, not as a guarantee of certainminimal levels of safety and security.' 130

Because the Constitution "is not intended to embody a particular eco-nomic theory,1 31 proponents of rationality review warn that judicial rec-ognition of unenumerated welfare rights would allow nonelected judgesimproperly to "read into the Constitution their [own] social prefer-ences."132 Rationality review thus locates questions about poverty and itstreatment in a private realm, outside the constitutional domain, so thatrelief for the poor is at best a contingency of social policy. 133

Critics, and the Realist Tradition, 82 YALE LJ. 227, 248 (1972) (discussing the institutional differ-ences in relation to theories of judicial review); Burt Neuborne, The Myth of Parity, go HARv. L.REv. IIOS, iii8-3o (i977) (discussing the institutional differences in relation to judicial enforce-ment of federal constitutional rights); Neuborne, supra note i5, at 893-98 (discussing the institu-tional differences in relation to state court enforcement of state constitutional welfare rights);Sager, Fair Measure, supra note 26, at 1228-42 (discussing the institutional differences in relationto judicial enforcement of federal constitutional rights); Sager, Strategic Space, supra note 27, at959 (discussing the institutional differences in relation to state court enforcement of state constitu-tional rights).

127 See GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIALCHANGE? II (1991) (stating that "there are no constitutional rights to decent housing, adequatelevels of welfare, or clear air").

128 DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 204 (1989) (Brennan, J.,dissenting). I was co-counsel for amicus curiae urging reversal.

129 Id. at 193.130 Id. at i95.131 Lochner v. New York, x98 U.S. 937, 949 (i9o5) (Holmes, J., dissenting).132 ROBERT H. BoxK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE

LAW 6i (iggo); cf. Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 371(i98i) (stating that there "is no convincing textual reason why the general outputs of the politicalprocess need satisfy any judicially formulated conception of the public good"). But see MichaelW. McCann, Equal Protection for Social Inequality: Race and Class in Constitutional Ideology, inJUDGING THE CONSTITUTION, supra note 115, at 231, 251 (remarking that the Court's "indiffer-ence to economic inequality is consistent with the prevailing individualistic, meritocratic logic ofdistribution").

133 Cf Barbara E. Armacost, Affirmative Duties, Systemic Harms, and the Due Process Clause,94 MICH. L. REv. 982, 1003 (i996) (stating that "judgments about what combination of goods andservices will be provided by the government, how much money is required to supply such ser-vices, and how available funds will be allocated ordinarily are made by citizens through theirelected representatives").


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By contrast, although there is no prototypical constitution, a signifi-cant number of state constitutions include an explicit provision of socialand economic goals, among them public assistance for the indigent. AsDaniel J. Elazar explains, "state constitutions are important determinantsof who gets what, when, and how in America because they are conceptualand at times very specific statements of who should get what, when, andhow.13 4 In this sense, state constitutions resemble regulatory statutes be-cause they prescribe social and economic policies, expressed in the lan-guage of positive rights, while according the legislature instrumental dis-cretion to carry out the constitutional mandate. 135 These positive rightsare not simply structural limits on governmental power; they are also pre-scriptive duties compelling government to use such power to achieve con-stitutionally fixed social ends.

By committing the state to explicit public goals, state constitutionscompel state legislatures to enact policies that carry out these goals, andthus alter the terms of political discourse. 136 Bound by an oath of office,state legislators must act in a situation of constrained discretion. Foodand shelter are no longer merely aspirational goals of political justice; theyare instead a part of the constitutional fabric and a nondiscretionary fea-ture of the legal order.13 7 A shortfall in enforcement may not simply beremitted to politics; it instead implicates the judiciary in a collaborativeprocess of elaborating the constitutional mandate. Social and economicconcerns of this sort, although viewed by Article Ill courts as politicalquestions, as within legislative discretion, or as otherwise nonjusticiable,are in many ways standard fare for common law courts. Unlike federalcourts, state courts are frequently counted on to resolve constitutionalquestions that implicate the courts "directly in day-to-day political issues"and that encourage them to act as interdependent members of state gov-ernment. 38 As former Justice Hans Linde of the Oregon Supreme Courtexplains, "[s]tate courts settle contests over public offices, pass on the pro-

134 DANIEL J. ELAZAR, THE AMERICAN CONSTITUTIONAL TRADITION 113 (i88).135 See Daniel Rodriguez, State Constitutional Theory and Its Prospects, 28 N.M. L. REV. 271,

271 (1998) ("State constitutions create the legal frameworks in which many of the basic regulatorydecisions affecting American citizens' lives are made.").

136 Cf. TARR, supra note 42, at 22 (contending that "the policy provisions in state constitutionsmay be statements of principle, committing the state to achieve particular ends"); G. Alan Tarr,Understanding State Constitutions, 65 TEMP. L. REv. I 169, 1181-83 (1992) (observing prevalenceof "statutory material" in state constitutions).

137 Cf STUART A. SCHEINGOLD, THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND

POLITICAL CHANGE 144 (1974) (arguing that rights alter political discourse by allowing judges "todemonstrate the dangers inherent in the expedient compromises that are the inevitable conse-quence of political bargaining"); WALDRON, supra note 6, at 273 (distinguishing between welfareas a "contingency of public policy" and welfare as a right forming an aspect of "social citizen-ship").

138 G. ALAN TARR & MARY CORNELIA ALDIS PORTER, STATE SUPREME COURTS IN STATE

AND NATION 43 (1988); see Hans A. Linde, State Constitutions Are Not Common Law: Commentson Gardner's Failed Discourse, 24 RUTGERS L.J. 927, 952 (1993) (noting that state courts "sharedirectly in governance").

1156 [Vol. 112:1131



priety of proposed public expenditures and even of proposed constitu-tional amendments, often at the suit of mere 'taxpayers." ' 139 Rationalityreview as currently exercised by Article III courts, however, is designed toblock the judiciary's policymaking role and to separate judges from the"political thicket,' 40 thereby disabling courts from performing an impor-tant institutional role.141

B. Rationality Review and Democratic Legitimacy

Rationality review further rests on a theory of democratic primacy,under which "governmental policymaking... ought to be subject to con-trol by persons accountable to the electorate.' 142 Federal judicial reviewof government action thus presents a fundamental tension, because it al-lows unelected Article IH judges to override the policy preferences of thepeople's elected representatives. 143 Rationality review attempts to medi-ate this tension by granting a strong presumption .of constitutionality tosocial and economic legislation challenged under the Equal Protection andDue Process Clauses, 144 and requiring the legislature to proffer only a hy-pothetical or theoretical justification for a challenged policy. In a recentarticulation of the standard, the Court stated that "[i]n areas of social andeconomic policy, a statutory classification that neither proceeds along sus-pect lines nor infringes fundamental constitutional rights must be upheldagainst equal protection challenge if there is any reasonably conceivablestate of facts that could provide a rational basis for the classification." 14S

However, the democratic concerns that motivate rationality reviewplay out very differently in many state court systems. "The 'counterma-joritarian difficulty,"' as Barry Friedman explains, "is born of a world inwhich courts are seen as insulated bodies decreeing rights without regardto popular will."'146 Countermajoritarian concerns may not be as uni-formly salient in the state constitutional context, given variations among

139 Linde, supra note 126, at 248.140 Colegrove v. Green, 328 U.S. 549, 556 (1946) (Frankfurter, J., plurality opinion).141 As one former state judge explains, "no thicket [is] too political for us." RICHARD LEHNE,

THE QUEST FOR JUSTICE: THE POLITICS OF SCHOOL FINANCE REFORM 43 (I978) (quotingNewark Evening News (Apr. 24, 1968)).

142 MICHAEL J. PERRY, THE CONSTITUTION, THE COURTS, AND) HUMAN RIGHTS 9 (1982).

143 See Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The

Road to Judicial Supremacy, 73 N.Y.U. L. REv. 333, 335 (1998) ("The 'countermajoritarian diffi-culty' has been the central obsession of modern constitutional scholarship [ - ] to the extent thatdemocracy entails responsiveness to popular will, how to explain a branch of government whosemembers are unaccountable to the people, yet have the power to overturn popular decisions.").

144 James Bradley Thayer presents the classic expression of a strong presumption of constitu-tionality- courts may invalidate legislative acts when legislators "have not merely madea mistake,but [one] so clear that it is not open to rational question." Thayer, supra note 24, at 144.

145 FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (I993).146 Barry Friedman, When Rights Encounter Reality: Enforcing Federal Remedies, 65 S. CAL.

L. REV. 735, 738 (1992).

1999] 1157


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state court systems 47 - states vary, among other things, in the way inwhich judges are recruited, 48 selected, 149 retained,'x 0 and compensated' 5

- but they are all non-Article III decisionmakers15 2 Indeed, in all but ahandful of states, state judges are popularly elected and retained. 5 3 Ad-mittedly, running for office does not transform black-robed judges intorepresentative decisionmakers; I5 * an elected court must still weigh con-stituent preferences against constitutional standards.15 5 The fact of judi-cial election does, however, alter the political vulnerability of state judges,subjecting them to a kind of popular veto that in theory sets a boundaryor tether on judicial decisionmaking. Burt Neuborne thus refers to therelation between the people and elected constitutional courts as "a form of

147 See Mary Cornelia Porter & G. Alan Tarr, Introduction to STATE SUPREME COURTS:

POLICYMAKERS IN THE FEDERAL SYSTEM at xi, xii (Mary Cornelia Porter & G. Alan Tarr eds.,1982) [hereinafter STATE SUPREME COURTS: POLICYMAKERS] (declaring that there is "no typicalstate court system"); J. Mark Ramseyer, The Puzzling (In)Dependence of Courts: A ComparativeApproach, 23 J. LEGAL STUD. 721, 747 (1994) ("The various states maintain courts with a widerange of institutional independence. In some states, politicians and voters keep close control overjudicial careers; in others, they offer judges an independence akin to that of federal judges.").

148 See Charles H. Sheldon & Nicholas P. Lovrich, Jr., State Judicial Recruitment, in THEAMERICAN COURTS: A CRITICAL ASSESSMENT 16I (John B. Gates & Charles A. Johnson eds.,i99i) (discussing judicial recruitment methods).149 See Jonathan D. Nase, The Gozernor's Impact on an Elected Judiciary: The Lessons from

Pennsylvania, 69 TEMP. L. REV. 1137, 1137 (i996) (identifying five types of judicial selectionmethods).

150 See Peter D. Webster, Selection and Retention of Judges: Is There One "Best" Method?, 23FLA. ST. U. L. REV. I, 11-38 (1995) (discussing methods of judicial retention).151 See 31 COUNCIL OF STATE GOVERNMENTS, THE BOOK OF THE STATES, 1996-97, at 144-

45 tbl.4.6 (1996) [hereinafter, THE BOOK OF THE STATES] (categorizing compensation arrange-ments by state).

152 See Amar, supra note 126, at 238 & n.i15.153 See Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law,

62 U. CHI. L. REV. 689, 725 (1995) (stating that "today in only twelve states are most judges notelectorally accountable to the citizenry"). Daniel R. Pinello provides an empirical analysis of theimpact of alternative judicial selection devices on legal innovation. See DANIEL R. PINELLO,THE IMPACT OF JUDICIAL-SELECTION METHOD ON STATE-SUPREME COURT POLICY:

INNOVATION, REACTION, AND ATROPHY 1-6 (1995).154 See Chisom v. Roemer, 501 U.S. 380, 410-1 (i991) (Scalia, J. dissenting) (asserting that

elected judges are not representatives of the people).155 See Larry W. Yackle, Choosing Judges the Democratic Way, 69 B.U. L. REV. 273, 284-86

(1989) (distinguishing between representative and judgmental institutions). Elaborating the na-ture of this judgmental process has proved fertile territory for constitutional scholars. See, e.g.,DWORKIN, supra note 17, at 1-13. Compare John Hart Ely, Another Such Victory: ConstitutionalTheory and Practice in a World Where Courts Are No Different From Legislatures, 77 VA. L.REX., 833, 833-35 & n.4 (I99I) (seeking to justify judicial review "on the basis of some character-istic that courts possess in greater measure than ordinary political officials"), with Duncan Ken-nedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference toCompulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563, 564-65 (1982) (contend-ing that "the only grounds for distinguishing between courts, legislatures and administrativeagencies as lawmakers are (i) that the false consciousness of the public requires it or (ii) that thedecision maker has a quite specific theory about how his or her particular institutional situationshould modify.., pursuit of political objectives").

1158 [Vol. 112:1131


1999] POSITIVE RIGHTS AND STATE CONSTITUTIONS "159

majoritarian ratification" that works to dissolve the democratic problemthat rationality review attempts to mediate.15

Those states that are free of the countermajoritarian difficulty mayface the opposite problem - the concern that elected judges, beholden tomajoritarian support for their retention, will be reluctant to enforce un-popular rights. 5 7 Some commentators insist that electoral pressure doesnot in practice undermine state court independence;15 populism's"grosser threats" may apparently be overcome by granting relatively longjudicial tenure during good behavior.' 59 Despite this either/or form, how-ever, surely the majoritarian difficulty exists along a continuum of ef-fects.' 60 Recent studies suggest that certain kinds of constitutional cases,particularly those involving capital punishment, may generate strongpublic reaction and thus subvert judicial independence.' 61 State constitu-

156 Neuborne, supra note i5, at go; see also James Gray Pope, An Approach to State Constitu-

tional Interpretation, 24 RUTGERS L.J. 985, 987 n.x6 (1993) (noting that "judicial activism at thestate level is less 'countermajoritarian' than at the national level because in many states judgesare elected (and can be unelected)"); Lawrence Schlam, State Constitutional Amending, Indepen-dent Interpretation, and Political Culture: A Case Study in Constitutional Stagnation, 43DEPAUL L. REv. 269, 3o9 (x994) ("[Clonstitutional flexibility, measured by the relative facility ofthe state process for amendment, can serve as implicit popular ratification of interpretive discre-tion and independence in the courts .... "). But see Kurt E. Scheuerman, Comment, RethinkingJudicial Elections, 72 OR. L. REV. 459, 476-82 (1993) (questioning whether elections make judgesmore democratically accountable).

157 See THE FEDERALIST No. 78, at 529 (Alexander Hamilton) (Jacob E. Cooke ed., i96i)(warning that if judicial appointments are committed "to the people, or to persons chosen by themfor the special purpose, there would be too great a disposition to consult popularity, to justify areliance that nothing would be consulted but the constitution and the laws"); Robert F. Utter,State Constitutional Law, the United States Supreme Court, and Democratic Accountability: IsThere a Crocodile in the Bathtub?, 64 WASH. L. REV. i9, 34 (ig8g) ('State court decisions aredramatically more vulnerable to democratic influences.").

158 See Nathan S. Heffernan, Judicial Responsibility, Judicial Independence and the Electionof Judges, 8o MARQ. L. REV. 1031, 1033-34 (1997) (positing that Wisconsin's elective judiciarysystem works "reasonably well" and exerts negligible influence on judicial independence).

159 Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L.REv. 6o5, 630 (ig8i); see also Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J.1503, 158o (iggo) ("The empirical evidence that ballot accountability threatens judicial indepen-dence is admittedly slim."). But see Neuborne, supra note 126, at 1127-28 (emphasizing majori-tarian bias in state court adjudication).

160 During the time of the Fugitive Slave Act, for example, an Ohio state judge failed in his

renomination efforts "because of his participation in a decision affirming the return of escapedslaves." Kermit L. Hall, Progressive Reform and the Decline of Democratic Accountability: ThePopular Election of State Supreme Court Judges, z85o-g2o, 1984 AM. B. FOUND. RES. J. 345,363 (1984). More recent examples focus on the i986 California campaign of Chief Justice RoseBird, who failed in her judicial reelection bid because of her "record of 61 reversal votes in 61death cases." Stuart Taylor, Jr., Judging in the Shadow of Death, NJ. LJ., Oct. 30, i995, at 29;see also Kaye, Dawn of a New Century, supra note 52, at 14 & nn.73-74 (citing electoral examples,and stating that "[b]ecause so many elected state court judges do not have the shield of life tenure- another contrast with the federal system - they have been swept into the whirlwind of newage politics"); John T. Wold & John H. Culver, The Defeat of the California Justices: The Cam-paign, the Electorate, and the Issue of Judicial Accountability, 70 JUDICATURE 348 (1987).

161 See Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done amid Effortsto Intimidate and Remove Judges from Office for Unpopular Decisions?, 72 N.Y.U. L. REV. 308,


116o HARVARD LAW REVIEW [Vol. 112:1131

tional welfare cases, which affect a highly unpopular minority and causesignificant fiscal pressures, may plausibly fall into this category. Welfarecases might therefore be a situation in which, as Justice Otto Kaus of theCalifornia Supreme Court famously put it, "ignoring the political conse-quences of visible decisions is 'like ignoring a crocodile in your bath-tub. '162

Judicial election thus avoids the countermajoritarian difficulty butmay threaten the courts' rights-enforcing role.' 63 Moreover, problems as-sociated with the political dependence of courts (whether because ofpopular election, gubernatorial appointment, party selection, or legislativeretention) may be exacerbated when the state itself is party to the dispute,as will always be the case in state constitutional challenges about the ade-quacy or availability of welfare assistance. 164 Rationality review does notresolve this majoritarian difficulty, for it simply makes possible the judi-cial rubber-stamping of legislative choices.165 A more robust standard ofreview is necessary to reassure the public that the judge is acting "in a ju-dicial mode,"'1 66 supporting adjudicative independence while preservingdemocratic accountability. 167 At the same time, the court's incremental

324-26 (1997) (discussing the politicized nature of capital cases and their deleterious effects on theindependence of elective judges).

162 Julian N. Eule, Crocodiles in the Bathtub: State Courts, Voter Initiatives and the Threat of

Electoral Reprisal, 65 U. COLO. L. REv. 733, 739 (i994) (quoting Judge Kaus); see also Melinda

Gann Hall, Electoral Politics and Strategic Voting in State Supreme Courts, 54 J. POL. 427, 433(1992) (indicating that single-member districts, narrow margins of electoral victory, timing, andprior experiences in elected office and reelection campaigns are factors encouraging state supremecourt judges to vote strategically so as to minimize electoral opposition); Barry Latzer, California's

Constitutional Counterrevolution, in CONSTITUTIONAL POLITICS, supra note 12, at 149, 169 (pre-senting a study of "how conservative forces in California compelled a rollback of many of thecourt's liberal decisions," but noting that judges subsequently used judicial review to mitigatesome of the constitutional amendment's adverse effects).

163 See Croley, supra note 153, at 689, 694 ("The majoritarian difficulty asks not howunelected/unaccountable judges can be justified in a regime committed to democracy, but rather

how elected/accountable judges can be justified in a regime committed to constitutionalism.");Yackle, supra note 155, at 285 n.39 ("The essentials of our unhappy experience with electingjudges are well known.").

164 Cf Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values

of Procedural Due Process, 95 YALE L.J. 455, 498 (1986) ("[I]n cases involving the assertion of aliberty or property interest in which the state is a party, the use of non-tenured state judges seemsto be a clear violation of procedural due process."); Scott D. Wiener, Note, Popular Justice: StateJudicial Elections and Procedural Due Process, 3. HARV. C.R.-C.L. L. REV. 187, 202-o4 (i996)(contending that elective judiciaries violate due process).

165 See Redish & Marshall, supra note 164, at 456.166 Hans A. Linde, E Pluribus - Constitutional Theory and State Courts, i8 GA. L. REV. 65,

i99 (1984).167 For example, some state courts do not use federal rationality review in assessing challenges

to business regulation under state due process clauses. See generally Gabriella S. Ttussusov, Note,A Modern Look at Substantive Due Process: Judicial Review of State Economic Regulation Un-der the New York and Federal Constitutions, 33 N.Y.L. ScH. L. REV. 529, 529-3o (1988). Instead,

courts examine the state's justification to ensure that the regulation in fact promotes the publicwelfare. See, e.g., Mount Royal Towers, Inc. v. Alabama Bd. of Health, 388 So. 2d 1209, 1213

(Ala. i98o) (characterizing the scope of review of state economic regulation as "more rigorous"


I999] POSITIVE RIGHTS AND STATE CONSTITUTIONS I16I

approach to state constitutional decisionmaking allows the other branchesample space to develop provisional solutions and should stem any criti-cism that the judiciary is inappropriately behaving as a superlegislature.

C. Rationality Review and Judicial Finality

Rationality review further reflects concern over "the seeming finalityof constitutional pronouncement,"168 stemming, in part, from Congress'sapparent inability to override constitutional decisions other than througha long and arduous amendment process.' 69 Thus, the Court holds an ap-parent monopoly over constitutional interpretation, giving rise in somecircles to the vision of an imperial ruler that usurps power from the peopleand from democratic institutions.' 70 According to this view, the prudentcourse would be for the Court to avoid constitutional decisionmaking, al-

than that of federal substantive due process). In applying this stricter standard, courts use em-pirical analysis to determine whether a statute "remed[ies] actual problems that exist." Daniel R.Gordon, Economic Liberty as the Basis of Social Liberty: Bowers Revised in the Context of StateConstitutions, i 9 HASTINGS CONST. L.Q. IOO9, 1026 (1992). By contrast, my colleague VickiBeen informs me that except in a few states, state courts do not engage in strict review of takingschallenges.

168 Harry H. Wellington, The Nature of Judicial Review, 91 YALE LJ. 486, 499 (1982). But cf

Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REv. 577, 643 (1993) (questioning"the faulty assumption of judicial 'finality'"). See generally Lawrence G. Sager, The IncorrigibleConstitution, 65 N.Y.U. L. REv. 893, 942-48 (iggo) (distussing the relation between the difficultyof amending the Constitution and judicial restraint).

169 See U.S. CONST. art. V ("The Congress, whenever two thirds of both Houses shall deem it

necessary, shall propose Amendments to this Constitution, or, on the Application of the Legisla-tures of two thirds of the several States, shall call a Convention for proposing Amendments,which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, whenratified by the Legislatures of three fourths of the several States, or by Conventions in threefourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.... "); cf. Stephen M. Griffin, The Nominee Is... Article V, 12 CONST. COMMENTARY 171, 171

(1995) (criticizing the Article V amendment process).170 See Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor

Paulsen, 83 GEO. LJ. 347, 371 (1994) ("A people who aspire to rule themselves cannot permit anyinstitution, the Supreme Court included, '[to] speak before all others for their constitutional ide-als.'" (citing Planned Parenthood v. Casey, 5o5 U.S. 833, 868 (1992))); Lawrence Lessig, Constitu-tion and Code: Limitations on Choice-Based Critiques of Cyberspace Regulation, 27 CUMB. L.REV. 1, 15 (1996-1997) ("[B]y leaving this practice of Constitution making to judges, we may wellhave lost the ability meaningfully to address, and resolve, these questions of value."); Robin West,Progressive and Conservative Constitutionalism, 88 MIcH. L. REv. 641, 651 (iggo) ("Only by re-conceptualizing the Constitution as a source of inspiration and guidance for legislation, ratherthan a superstructural constraint on adjudication, can we make good on its richly progressivepromise."). A similar criticism appears at the subconstitutional leveLin the literature on adminis-trative review. See, e.g., R Shep Melnick, Administrative Law and Bureaucratic Reality, 44ADMIN. L. REv. 245, 246 (1992) (stating that judicial review has "discouraged administrators fromtaking responsibility for their actions and for educating the public"). But see Erwin Chemerinsky,The Price of Asking the Wrong Question: An Essay on Constitutional Scholarship and JudicialReview, 62 TEx. L. REV. 1207, 1248-53 (1984) (criticizing as oversimplification allegations of "ju-dicial tyranny" in the constitutional context).


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lowing the legislature ample discretionary space to develop policy.' 71 Forexample, when the majority in Goldberg v. Kelly held that due processguarantees welfare recipients a hearing prior to termination of benefits,the "seeming finality"' 72 of the Court's pronouncements motivated JusticeBlack's dissent. 173 Black explained that because "the operation of a wel-fare state is a new experiment for our Nation," the Court should avoidhaving "new experiments in carrying out a welfare program ... frozeninto our constitutional structure."'1 74 Conversely, when Congress canoverride the Court by a simple majority and a constitutional amendmentis not necessary, doubts about judicial legitimacy are somewhat miti-gated. 17 The availability of this kind of legislative veto offers an explana-tion for judicial activism under the negative commerce clause. 176

Rationality review thus acts prudentially to limit those areas in whichthe Court - unelected, undemocratic, and unaccountable - might oth-erwise assume the role of the Constitution's final arbiter. State court deci-sions, however, often lack the finality that is associated with Article II[ re-view. A state court's decision is of course final as to the parties, but thecourt does not always have the last word in the articulation of state consti-tutional doctrine. For one thing, a rampant "amendomania" describessome state constitutional decisionmaking. 1 77 If the Federal Constitution is

171 Cf. Louis FISHER, CONSTITUTIONAL DIALOGUES: INTERPRETATION AS POLITICAL PRO-

CESS 85 (1988) (stating that a federal court's "deliberate withholding of judicial power often re-flects the fact that courts lack ballot-box legitimacy").

172 Wellington, supra note 168, at 499.173 Goldberg v. Kelly, 397 U.S. 254, 271-79 (1970) (Black, J., dissenting). See Tushnet, supra

note 71, at 1082-83 (discussing Justice Black's reluctance to make welfare "experiments" constitu-tionally required).

174 Goldberg, 397 U.S. at 279 (Black. J., dissenting). The Court has since retreated from themajority's holding in Goldberg. See Mathews v. Eldridge, 424 U.S. 319, 349 (1976) (holding thatan evidentiary hearing is not required prior to termination of disability benefits).

175 See Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials:Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247, 293 (2988)("[Dloubts about judicial competence, though not eliminated, are mitigated somewhat if Congresshas the power to override the initial decisions by judges.").

176 Cf. Henry P. Monaghan, The Supreme Court, r974 Term-Foreword: Constitutional Com-mon Law, 89 HARV. L. REV. 1, 15-17 0975) (discussing congressional consent doctrine under theCommerce Clause as an aspect of constitutional common law).

177 See Donald E. Wilkes, Jr., First Things Last: Amendomania and State Bills of Rights, 54MISS. L.J. 223, 233 (I984) (using the term "amendomania" to describe frequent state constitutionalchange by amendment). Wilkes borrows the term from Note, California's Constitutional Amend-omania, I STAN. L. REV. 279, 279 (I949). G. Alan Tarr reports: "As of January 1995 the Ameri-can states had held over 230 constitutional conventions and adopted 146 constitutions. They hadalso adopted over 6,ooo statewide amendments to their current constitutions." Tarr, State Consti-tutional Politics: An Historical Perspective, supra note 22, at 3; see also Donald S. Lutz, Patternsin the Amending of American State Constitutions, in CONSTITUTIONAL POLITICS, supra note 12,at 24, 31-44 (providing empirical data on state constitutional amendment patterns from 2776 toi992). The Federal Constitution has been amended 26 times; only four of these amendmentsoverturned the Supreme Court's constitutional interpretation. Alabama's constitution, by con-trast, has been amended as many as 582 times. See THE BOOK OF THE STATES, supra note 151,at 3-4 tbl.i.i (listing the frequency of state constitutional amendment); cf. Gerald Benjamin &Melissa Cusa, Constitutional Amendment through the Legislature in New York, in CONSTITU-

1162 [Vol. i112:ii31


'9991 POSITIVE RIGHTS AND STATE CONSTITUTIONS 1163

"incorrigible," subject to change only through the most "obdurate" of pro-cesses,' 78 then state constitutions are, by contrast, more plastic and po-rous, subject to revision through a variety of structural mechanisms ab-sent in Article V.179 Perhaps the most acute divergence between Article Vand many state constitutional amendment procedures is the citizen initia-tive, which allows a minority of a state's voters to place a proposed consti-tutional change on the ballot for consideration by the electorate as awhole.'80 Because state constitutional amendments are relatively ordi-nary events in a state's political life,' 8 ' state court judges can demonstratea greater willingness to experiment with legal norms, 8 2 on the assumptionthat their judgments comprise only the opening statement in a publicdialogue with the other branches of government and the people.' 83

TIONAL POLITICS, supra note 12, at 47, 53 (stating that "New York's current constitution wasamended 207 times between its adoption in i895 and i99i").

178 Sager, supra note i68, at 895 ("[T]he Constitution is markedly obdurate to textual change.").179 See THE BOOK OF THE STATES, supra note i5i, at 5-13 (describing amendment procedures

in the fifty states).180 See John F Cooper, The Citizen Initiative Petition to Amend State Constitutions: A Con-

cept Whose Time Has Passed, or a Vigorous Component of Participatory Democracy at the StateLevel?, 28 N.M. L. REV. 227, 227-28 (1998) (describing the basic features of the citizen initiativemethod of constitutional amendment); Hans A. Linde, Practicing Theory: The Forgotten Law ofInitiative Lawmaking, 45 UCLA L. REv. 1735, 1739 (i998) (examining "[t]he numerous short-comings of lawmaking by ballot measure").

181 See G. Alan Tarr, Introduction, in CONSTITUTIONAL POLITCS, supra note 12, at xiii, xv("Far from viewing their constitutions as sacrosanct and above politics, the states have treatedthem as political documents to be changed in accordance with the shifting needs and opinions oftheir citizens.").

182 See Project Report: Toward an Activist Role for State Bills of Rights, 8 HARV. C.R.-C.L. L.REV. 271, 294-96 (1973) [hereinafter Project Report] (observing that state judges can make bolderdecisions in state constitutional cases because of the greater potential for amendment).

183 See Cohen, supra note 16, at 656 (characterizing state constitutional decisions as the "first

statement in a dialogue between the court and the electorate"); John Devlin, Constructing an Al-ternative to "State Action" as a Limit on State Constitutional Rights Guarantees: A Survey, Cri-tique and Proposal, 21 RUTGERS L.J. 81g, 88i (iggo) (describing state constitutional decisions as"interim" statements); Ronald J. Krotoszynski, Jr., Constitutional Flares: On Judges, Legislatures,and Dialogue, 83 MINN. L. REv. i, 56 (igg8) ('[A]t the state level at least, the metaphor of a dia-logue between judges and legislators has been grounded in reality."); Project Report, supra note182, at 274 ("[A] decision under the Federal Bill of Rights tends to be more permanent than a de-cision under a state bill which.., can be overruled by the electorate in a matter of months.").

Thus, one state chief judge describes the role of her court as "engag[ing] the Legislature inopen dialogue [ - ] especially when the crucible of real-life facts demonstrates that a statute ...simply does not provide the intended result." Judith S. Kaye, Things Judges Do: State StatutoryInterpretation, 13 TOURO L. REv. 595, 603 (1997). An early example of this dialogic relation con-cerus New Yprk's worker's compensation program. After the establishment of this program, thebusiness community attacked its constitutionality under state law, and the New York Court ofAppeals struck it down as "a taking of property without due process of law." Ives v. South Buf-falo Ry. Co., 94 N.E. 431, 448 (N.Y. 1911). The people responded by amending the New YorkConstitution to remove any state prohibition; the legislature enacted a new program; and thecourt sustained the new legislation under state law. See Edward Hartnett, Why Is the SupremeCourt of the United States Protecting State Judges from Popular Democracy?, 75 TEx. L. REv.907, 933-37 (1997) (recounting the history of New York's first worker's compensation program).


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In addition, the availability of common law alternatives to state consti-tutional decisionmaking may affect the applicability of Article III notionsof judicial finality to state welfare rights cases. 184 As one state court judgeexplains, "the common law and state constitutional law often stand as al-ternative grounds for individual rights.'1 5 A common law approach al-lows the court to frame an issue in principled terms, while affording thelegislature an explicit opportunity to develop programmatic content - be-fore a somewhat more permanent state constitutional solution takesshape. 186 For example, whether a "right to die" emerges as a matter ofstate law could be seen in constitutional terms as a matter of due process,but a state court may prefer a more modest articulation in terms of the"common-law principles of privacy and 'fundamental fairness.""' 8 7 In thewelfare context, state courts can define the adequacy of emergency shelterprovided by a municipality to homeless families in terms of a state consti-tutional welfare or due process clause, or it can draw from common lawnotions of the warranty of habitability. 18 The state courts' long traditionas common law generalists affords legitimacy to this nonconstitutionalelaboration of public issues and gives the judge an explicit role in policy-making. 89 Moreover, "while we may disagree strongly with particulardecisions," Dean Harry H. Wellington observes, "we rarely question theauthority of common-law courts, even in pivotal cases."'190

184 For discussions of the relation between the common law and federal constitutionalism, see

Monaghan, cited in note 176, and David A. Strauss, Common Law Constitutional Interpretation,63 U. CHI. L. REv. 877, 877 (1996).

185 Kaye, Dawn of a New Century, supra note 52, at 15; see also Ellen A. Peters, Capacity andRespect: A Perspective on the Historic Role of the State Courts in the Federal System, 73 N.Y.U.L. REV. IO65, 1070-71 (1998) (explaining, as Senior Justice of the Connecticut Supreme Court,that "[miany of us who serve on state supreme courts see the creation of an integrated state juris-prudence, without sharp lines of demarcation between constitutional law, statutory law, and judgemade law, as part of our judicial responsibility").

186 Cf. GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 165-66 (1982) (de-

scribing a form of judicial review in which "the appropriate technique will be to enter into a dia-logue, to ask, cajole, or force another body (usually the legislature but sometimes the agencies) todefine the new rule"); Kaye, Foreword, supra note 52, at 727, 745 ("By common law solutions ...courts leave it open for legislatures to fix comprehensive standards ...

187 Kaye, Dawn of a New Century, supra note 52, at I5.188 See, e.g., McCain v. Koch, 511 N.E.2d 62 (N.Y. 1987).189 See Linde, supra note 126, at 248 (discussing accepted legitimacy of policymaking by com-

mon law courts); G. Alan Tarr & Mary Cornelia Porter, Gender Equality and Judicial Federalism:The Role of State Appellate Courts, 9 HASTINGS CONST. L.Q. 919, 920 (1982) ("Historical surveysdemonstrate that, far from being a recent development, state court policymaking has been a stan-dard feature of American law.").

190 Wellington, supra note 168, at 486; see Kaye, Dawn of a New Century, supra note 52, at io-i i ("No one disputes our [common law] role - indeed our responsibility .... One might disagreewith particular policy choices we make, but no one questions our authority to make them." (cita-tion omitted)). But cf. Robert A. Kagan, Bliss Cartwright, Lawrence M. Friedman & StantonWheeler, The Evolution of State Supreme Courts, 76 MICH. L. REv. 961, 978 n.42 (1978) (ex-plaining that "the due process activism" of late nineteenth century and early twentieth centurystate courts generated great controversy because it was perceived as blocking future legislativeaction).

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Finally, concerns with judicial finality are inapposite at the state levelfor another reason. Although rationality review allows the Court to avoidunnecessary constitutional decisionmaking, it works as a fairly blunt in-strument, leaving little space for interbranch dialogue on important publicquestions.'19 Unlike the federal courts, however, at least some state courtsmake use of strong hortatory devices, such as the advisory opinion, whichin some situations works to foster judicial collaboration with the coordi-nate branches in resolving complicated public controversies. 192 Advisoryopinions lack binding effect "within the doctrine of stare decisis,"'193 butthey "are characteristically viewed as authoritative by all parties."'194

Typically involving questions of "internal government mechanics," par-ticularly the scope of government power and the interrelationship be-tween the executive and legislature, 95 advisory opinions allow statecourts to perform a mediating role in the state system that is said to reduceinterbranch conflict and prevent political gridlock.196

Recent education reform litigation in the Alabama state courts pro-vides a good example of the way in which the advisory opinion can en-courage collegial dialogue among the branches of government.' 97 Theplaintiffs in this litigation challenged the adequacy and equity of the Ala-bama public school system under the Due Process Clause of the FederalConstitution, as well as under various state constitutional guarantees, in-cluding a provision requiring the legislature to "establish, organize, andmaintain a liberal system of public schools throughout the state."'98 After

191 Article IM judges make strategic use of dicta, concurrences, and dissents for this purpose.See generally Neal Kumar Katyal, Judges as Advicegivers, 5o STAN. L. REV. 1709, 1710-12 (1998)(urging a strong advice-giving role for Article Ell judges).

192 See ALBERT R_ ELLINGWOOD, DEPARTMENTAL COOPERATION IN STATE GOVERNMENT257 (1918) (discussing advisory opinion procedure as a source of interbranch cooperation). I ex-plore this idea further in Hershkoff, "Passive Virtues," cited above in note 30.

193 Patrick C. McKeever & Billy Dwight Perry, The Case for an Advisory Function in the Fed-eral Judiciary, 5o GEo. L.J. 785, 790 (1962); see also William A. Fletcher, The "Case or Contro-versy" Requirement in State Court Adjudication of Federal Questions, 78 CAL. L. REv. 263, 268(iggo) (observing that advisory opinions may be "useful in predicting what the state court mightlater do," but that they have "neither the force of precedent nor of res judicata").

194 TARR & PORTER, supra note 138, at 43.

195 Charles M. Carberry, The State Advisory Opinion in Perspective, 44 FORDHAM L. REV. 81,104 (1975).

196 See McKeever & Perry, supra note 193, at 786 (stating that advisory opinions work to secure"the cooperation of the individual justices with the people's elected representatives in a purelyadvisory capacity"); Comment, The Advisory Opinion and the United States Supreme Court, 5FORDHAM L. REV. 94, 96 (1936) (noting that advisory opinions "obviate to some degree the neces-sity for social conflict"). But see Felix Frankfurter, A Note on Advisory Opinions, 37 HARv. L.REV. 1002, ioo6-o7 (1924) (discussing the tendency of advisory opinions to weaken "legislativeand popular responsibility" in the federal context).

197 See Alabama Coalition for Equity, Inc. v. Hunt, Nos. CV-9o-88 3-R, CV-91-0117 (Ala. Cir.CL Montgomery County filed Apr. 1, 1993), reprinted in Opinion of the Justices No. 338, 624 So.2d 107 (Ala. 1993). I was co-counsel until 1995 to the Harper plaintiff class in Harper v. Hunt,No. CV-91-ol,7-R (Ala. Cir. CL Montgomery County 1993), which was consolidated with Ala-bama Coalition for Equity.

198 ALA. CONST. art. XIV, § 256.

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the trial court had entered a liability order against the state, the AlabamaSenate asked the Justices of the Supreme Court for an advisory opinion onthe legislature's obligation to obey the decree. Although the Justices ac-knowledged that the advisory opinion procedure "is not without diffi-culty,"199 they rendered a purely hortatory decision advising the legislatureon its duty of compliance. In theory, at least, the court's advice helped thelegislature to formulate a response to the judiciary's finding of constitu-tional default. 00

D. Rationality Review and Federalism

Federal rationality review also rests on the related assumption thatstates and localities are normatively superior to the national governmentin dealing with the everyday stuff of life: family relations, public school-ing, and the like. This view of federalism, which rests on a theory of dualsovereignty, fails to account. for what is metaphorically described as the"marble cake" nature of American governance - the extent to which "thenational government can and does exercise any function performed bystate and local governments. '20 However, it explains, at least in part, thefederal courts' hands-off20 2 attitude toward a cluster of issues that are re-garded as inherently local.20 3 As Justice Black stated in Younger v. Har-ris,20 4 "the National Government will fare best if the States and their insti-tutions are left free to perform their separate functions in their separateways. '20 Rationality review is thus defended on the ground that it worksto allocate maximum decisionmaking authority to those entities bestsuited to deal with "local problems. '20 6 Various benefits theoretically ac-crue from this division: government units are able to develop expertise inspecialized areas of law and public life; citizens have greater opportunities

199 Opinion of the Justices No. 338, 624 So. 2d at IO9 (citation omitted).200 See id. (advising the legislature "that the order has the force of law unless modified by the

trial court, until it is modified or reversed on appeal, and the Legislature, like other branches ofgovernment, must comply with it").

201 PAUL E. PETERSON, CITY LIMITS 13 (1981).

202 See Gerald Gunther, The Supreme Court, 1971 Term-Foreword: In Search of EvolvingDoctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. I, 21

(1972) ("[E]xtreme deference to imaginable supporting facts and conceivable legislative purposeswas characteristic of the 'hands off' attitude of the old equal protection.").

203 See, e.g., Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV.1297, 1310 (1998) (observing that "[flamily law has become the quintessential symbol of federalnoninvolvement").

204 401 U.S. 37 (971).205 Id. at 44; see also United States v. Lopez, 514 U.S. 549, 581 (995) (invoking federalism to

strike down federal law so "the States may perform their role as laboratories for experimenta-tion").

206 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 41 (1973); cf. Henry J. Friendly,Federalism: A Foreword, 86 YALE L.J. 1019, 1034 (1977) (noting that federalism "leav[es] to thestates the final decision on the bulk of day-to-day matters that can best be decided by those whoare closest to them"). See generally Sager, Fair Measure, supra note 26, at 12 12 (describing insti-tutional features of rationality review).

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to participate in decisions that affect their daily lives; and localities areable to find solutions free from the heavy hand of centralized planning. 2 7

In addition, state and local governments are said to have the necessary in-centives "to advance the relative well-being of their citizens."20 8

Federal courts often invoke principles of federalism to justify their re-fusal to review the substantive sufficiency of welfare and other social pro-grams.20 9 The courts contend, first, that it is institutionally improper forunelected federal judges to "second-guess" the policymaking judgments ofdemocratically elected state officials; 210 and second, that the federal courtslack expertise compared to state decisionmakers on these issues.211 As theCourt stated in Dandridge v. Williams, rationality review as applied to theadministration of public assistance "is true to the principle that the Four-teenth Amendment gives the federal courts no power to impose upon theStates their views of what constitutes wise economic or social policy. '212

However, federalism concerns disappear altogether when we shift ourfocus to state court enforcement of a state constitutional welfare right.213

207 See Larry Kramer, Understanding Federalism, 47 VAND. L. REv. 1485, 1490 (X994) (dis-cussing the values of federalism); cf. Richard B. Stewart, Federalism and Rights, ig GA. L. REv.917, 918-20 (1985) (discussing the loss of federalism values caused by "excessive centralization").But see Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41UCLA L. REv. 903, 907 (1994) (questioning the standard story).

203 Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path" A Theoryof Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447, 1469 (1995); see Craig Volden,Entrusting the States with Welfare Reform, in THE NEW FEDERALISM: CAN THE STATES BETRUSTED? 65, 67 (John A. Ferejohn & Barry R. Weingast eds., 1997) ("[S]tates ... have betteraccess to information about the needs of recipients and about community employment opportuni-ties.., along with increased incentives to move people off welfare .... ).

209 Cf Lindsey v. Normet, 405 U.S. 56, 68 (1972) ('The Constitution has not federalized the

substantive law of landIord-tenant relations .... ").210 See Dandridge v. Williams, 397 U.S. 471, 487 (1970); see also Parham v. J.R., 442 U.S. 584,

6o8 n.16 (1979) (As the scope of governmental action expands into new areas creating new con-troversies for judicial review, it is incumbent on courts to design procedures that protect the rightsof the individual without unduly burdening the legitimate efforts of the states to deal with diffi-cult social problems."); cf. PHILLIP J. COOPER, HARD JUDICIAL CHOICES: FEDERAL DISTRICT

COURT JUDGES AND STATE AND LOCAL OFFICIALS 350 (1988) (exploring the dynamics of institu-tional reform litigation and how they are affected by "both the more formal doctrinal constraintsand the less formal judgmental factors associated with a prudent sense of the court's relationshipto the community and its administrative and elected officials").

211 See, e.g., Lewis v. Casey, 518 U.S. 343, 387 (1996) ('State prisons should be run by the stateofficials with the expertise and the primary authority for running such institutions."); San AntonioIndep. Sch. Dist., 411 U.S. at 41 (contending that Supreme Court Justices "lack both the expertiseand the familiarity with local problems so necessary to the making of wise decisions with respectto the raising and disposition of public revenues").

212 Dandridge, 397 U.S. at 486.213 See, e.g., Cohen, supra note 16, at 651. I do not suggest that state-based programs are a

necessary incident of federalism. I intend only the more limited point that state court review ofstate programs under state constitutional provisions does not present the kinds of federalism con-cerns that are said to implicate the Tenth Amendment or to raise prudential barriers to Article HIcourt intervention. To the extent that federalism plays a role in state court adjudication, it is aninternal concern, implicating such matters as home rule and local control. See Richard Briffault,Our Localism: Part I - The Structure of Local Government Law, go COLUM. L. REv. r, 6-18(iggo) (discussing the structure of local government law).

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As Daniel B. Rodriguez observes, "[w]hereas states occupy an essentialrole in the American constitutional system, there is no equivalent principleof federalism ... in state constitutionalism. ''214 State courts are concernedwith separation of powers -- but separation of powers in a context quitedifferent from the federal experience because there are no analogous fed-eral constitutional provisions guaranteeing affirmative rights. 215 Statecourts themselves cite an absence of federalism concerns, to justify boththeir enforcement of positive rights, such as rights to a public education,and their use of non-Article Ili interpretive techniques. 21 6 As Chief JudgeJudith S. Kaye of the New York Court of Appeals explains, "state courtsare generally closer to the public, to the legal institutions and environ-ments within the state, and to the public policy process. This both shapestheir strategic judgments and renders any erroneous assessments they maymake more readily redressable by the People."'2 17 Moreover, state courtsdo not establish state constitutional remedies of nationwide scope, 218 andtherefore have greater latitude in devising remedies that respond to localconcerns and that reflect the benefits of decentralized learning.219 Indeed,state judicial review may be said to foster the values of federalism by al-lowing a community to participate in the elaboration of welfare policy;this participation takes place through the interpretive activity of courts,

214 Rodriguez, supra note 135, at 278.215 Cf. Stanley H. Friedelbaum, State Courts and the Separation of Powers: A Venerable Doc-

trine in Varied Context, 61 ALB. L. REV. 1417, 1458-59 (1998) (noting the greater scope of statejudicial review of a legislature's "extraconstitutional practices," such as senatorial courtesy, butconcluding that "separation [of powers] has become more meaningful in a conventional sense inthe states'.

216 See, e.g., Robinson v. Cahill, 62 N.J. 473, 490 (1973) (cautioning against "too expansive aview of a federal constitutional limitation upon the power and opportunity of the several States tocope with their own problems in the light of their own circumstances"); People v. Scott, 593N.E.2d 1328, 1348 (N.Y. 1992) (Kaye, J., concurring) ("States ... by recognizing greater safe-guards as a matter of State law can serve as 'laboratories' for national law."); SouthCenter JointVenture v. National Democratic Policy Comm., 780 P.2d 1282, 13o6 (Wash. 1989) (Utter, J, con-curring) ("Federalism allows the states to operate as laboratories for more workable solutions tolegal and constitutional problems."); State v. Seibel, 471 N.W.2d 226, 238 n.i (Wis. 1991)(Bablitch, J., dissenting) ("States should be encouraged to be the laboratories of the nation.").

217 Kaye, Contributions, supra note 52, at 56. Burt Neuborne comments:Whatever the validity of the concern, federal judges have occasionally been pictured as"outsiders," rendering their controversial decisions subject to more resistance than anequally controversial opinion handed down by the "local" judge. To the extent the "local"judge can be relied upon to check a local majority, some friction may be avoided and thepotentially unpopular decision may be received with better grace.

Burt Neuborne, Toward Procedural Parity in Constitutional Litigation, 22 WM. & MARY L. REv.725, 732 (I98I).

218 See Cohen, supra note 16, at 652--54 (discussing "the limited scope of state court rulings").219 See John A. C. Hetherington, State Economic Regulation and Substantive Due Process of

Law, 53 Nw. U. L. REv. 226, 250 (1958) (contending that "[s]tate courts, since their precedents arenot of national authority, may better adapt their decisions to local economic conditions andneeds"); cf. People v. Scott, 593 N.E.2d at 1348 (Kaye, J., concurring) (referring to "the role of theSupreme Court in setting minimal standards that bind courts throughout the Nation, and the roleof the State courts in upholding their own Constitutions').



which many see as a "form of self-government" 220 -Article XVII casesthus provide a point of entry into a state's democratic life in a way that isalternative and complementary to other government institutions, and thatenables citizens to engage more fully in important public decisions.221

E. Rationality Review Revisited

A cluster of arguments concerning positive rights, democratic legiti-macy, and federalism supports the view that federal rationality reviewfails to comport with the institutional position of state courts that areasked to review state constitutional welfare claims. As we have seen, theexplicit textual commitment of some state constitutions to welfare rightsactively engages the state court in the elaboration of substantive normsand also legitimates this interpretive process. In addition, the counterma-joritarian difficulty, and attendant concerns about the democratic basis ofjudicial discretion, carry less force in state systems. In part, this differenceexists because some state judges are elected and, in that limited sense, maybe regarded as popularly accountable. Moreover, state judges workwithin a common law tradition that has long accepted policymaking as animportant and, indeed, essential aspect of the judicial role. State constitu-tions are also closer to "ordinary law" in their subject matter and in theirease and frequency of amendment. As such, state court decisions are notthe last word, in a political conversation, but rather the first, opening adialogue with the legislature and the people and spurring the developmentof shared solutions to important public problems. Finally, federalism con-cerns that give rise in the Article III context to the prudential doctrines ofcomity and abstention are absent from state systems; instead, state courts,working collaboratively with the elected branches, afford citizens greateropportunities to participate in the process of governance.

III. TOWARD A NEW STANDARD OF REVIEW

State constitutional doctrine has yet to account sufficiently for positiverights that guarantee government services. Instead, state courts, includingthe New York court, have borrowed extensively from federal doctrine,which assumes the absence of welfare rights and accords maximum dis-cretion to the elected branches in setting welfare policy. Arguably, a fed-eral court asked to assess social and economic legislation can limit its re-view to whether a challenged law is within the scope of legislative power.A state court asked to enforce a state constitutional welfare right, how-ever, faces a different adjudicative task: the court must foster compliancewith a substantive norm. This Part contends that a state constitution's

220 Note, Over-Protective Jurisdiction?: A State Sovereignty Theory of Federal Questions, 102

HARV. L. REv. 1948, x959 (i989).221 Cf Gregory v. Ashcroft, 5oi U.S. 452, 458 (iggi) (arguing that federalism "increases oppor-

tunity for citizen involvement in democratic processes").

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commitment to positive rights requires a reviewing court to examinewhether a challenged law actually helps effectuate the constitutionalmandate.

In so arguing, I recognize that assessing the adequacy of a state's wel-fare system is not an easy task.222 Indeed, it would be foolish to suggestthat merely changing the venue of welfare litigation from federal to statecourt is sufficient to eliminate all doubts about the efficacy or legitimacyof the enterprise. Assuming judicial review is normatively appropriate,however, the question is whether the task, even if difficult, is beyond thecourt's competence in a world of imperfect institutional alternatives. 223

Scholarly discussion of these questions has, for the most part, occurredwithin an Article II framework. 224 As I showed in Part II, however, stateand federal courts are not interchangeable for analytic purposes. If, by theconventional wisdom, federal courts are remote from the people, statecourts are populist; if federal courts are independent of the electedbranches, state courts are interdependent; if federal courts are final intheir constitutional decisionmaking, state courts are conditional. Equat-ing the comparative competence of federal courts with that of state courtsmay constitute an essentialist error that further analysis could avoid.225

This Part proceeds in three steps. First, it considers whether an af-firmative case can be made for judicial review of state constitutional wel-fare rights. Second, it attempts to meet concerns that judicial review ofsuch rights is beyond the institutional competence of state courts. Finally,it sets out an alternative standard to federal rationality review for assess-ing whether a state constitutional welfare mandate is fulfilled.

A. The Need for Judicial Review

So far, I have argued that the three institutional concerns that limit Ar-ticle II enforcement of federal welfare rights - separation of powers,federalism, and democratic legitimacy - should not similarly constrain

222 See NICHOLAS RESCHER, WELFARE: THE SOCIAL ISSUES IN PHILOSOPHICAL PERSPEC-

TIVE 133-34 (1972) (observing that welfare planning, while necessary, is not easy, and that a"prime difficulty is that of assuring that the actual effects of a measure in fact conform to its in-tended objectives").

223 See NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW,

ECONOMICS, AND PUBLIC POLICY 3, 12 (1994) (urging "comparative institutional analysis" thatavoids reliance on "idealized institutional conceptions").

224 Earlier works considering the distinct features of state judicial capacity include G. ALANTARR, JUDICIAL PROCESS AND JUDICIAL POLICYMAKING (1994); Russell S. Harrison, StateCourt Activism in Exclusionary-Zoning Cases, in STATE SUPREME COURTS: POLICYMAKERS,cited in note 147, at 55; Russell S. Harrison & G. Alan Tarr, School Finance and Inequality inNew Jersey, in CONSTITUTIONAL POLITICS, cited in note 12, at 178; and G. Alan Tarr & RussellS. Harrison, Legitimacy and Capacity in State Supreme Court Policymaking: The New JerseyCourt and Exclusionary Zoning, i5 RUTGERS L.J. 513 (1984).

225 See Keith 0. Boyum, Introduction: Toward Empirical Theories About Courts, inEMPIRICAL THEORIES ABOUT COURTS I, 2 (Keith 0. Boyum & Lynn Mather eds., 1983) (distin-guishing between nominalist and essentialist theories of courts).

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state courts from enforcing state welfare rights. Putting aside these con-cerns, however, does not resolve the more important question whether itwould be prudent for state courts to undertake such review. In this sec-tion, I consider whether an affirmative case can be made as to why statejudicial review would be normatively appropriate.

Unlike the Federal Constitution, but like other similar state constitu-tional welfare clauses, New York's Article XVII commits the state to aparticular policy judgment; Article XVII contains a specific, affirmativecommand compelling the political branches to provide for the "aid, careand support of the needy."226 On this issue, at least, the legislator is notmerely a conduit for the shifting preferences of voters. She is instead aconstitutional agent charged with carrying out a fundamental public pol-icy.2 27 Because constitutional principles already inform legislative deci-sionmaking on welfare matters, one might argue that judicial review isunnecessary and even counterproductive, insofar as it runs the risk of un-dermining legislative leadership.

Variations on this theme, of course, appear throughout federal dis-course.228 One response would be to acknowledge the possibility of statelegislative apathy, and to emphasize the unique features of state court de-cisionmaking that potentially mitigate the predicted harm. The verymodesty of state constitutionalism should facilitate, rather than discour-age, legislative initiative, for it invites dialogue with the other branches ofgovernment in developing provisional, rather than final, answers to com-plex social and economic problems.2 29 Another response would look skep-tically on the claim that we should entrust controversial but fundamentalpolicies to elected representatives. We all know the considerable difficul-ties that even the"conscientious legislator" faces in transcending ordinarypolitics and enacting legislation sensitive to public needs.230 The enact-ment and implementation of all legislation must hurdle significant barri-ers, barriers that are even higher for welfare programs.2 31

226 N.Y. CONST. art. XV11, § I.227 Cf. HANNA FENICHEL PiTKIN, THE CONCEPT OF REPRESENTATION 154 (1967) ("[R]epre-

senting need not necessarily be of a person or persons; abstractions, too, can be represented in thesubstantive sense of acting for them.").

228 See, e.g., ARCHIBALD Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERN-MENT 103 (1976) (stating that "excessive reliance upon courts instead of self-government throughlegislative processes may deaden a people's sense of moral and political responsibility for theirown future"); sources cited supra note 170.

229 Constitutional scholars urge a spirit of provisionalism in Article III constitutional decision-making to reflect epistemic limits and post-modern uncertainty. See, e.g., Michael C. Dorf, TheSupreme Court, 1997 Term-Foreword: The Limits of Socratic Deliberation, 112 HARV. L. REv. 4,59 (1998) (calling for "provisional adjudication"); Nagel, supra note 113, at 66i (discussing the re-lation between the judicial role and the "assumption that the availability of relevant legal stan-dards was a matter of volition and experimentation").

230 Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 STAN.L. REV. 585, 589-94 (i975).

231 See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Inter-pretation: An Interest Group Model, 86 COLUM. L. REv. 223, 227-33 (1986); Meltzer, supra note

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Indeed, welfare legislation illustrates a classic public choice problem.Although the poor are not a suspect class under federal law for purposesof heightened scrutiny,232 the) tend, nevertheless, as a group to be diffuseand powerless.2 33 Political scientists recognize that the poor function asan "ineffectual minority 234 -- prime candidates for the position of Man-cur Olson's "forgotten groups," those who "suffer in silence" because they"have no lobbies and exert no pressure. '23 The poor are thus unlikely toattract the attention of their legislators, who will tend to focus on the bet-ter organized and better financed groups.236

Structural conditions at the state and local level exacerbate the publicchoice problem. For one thing, the ease of state constitutional amendmentallows the people to second-guess an elected representative's reading ofwelfare requirements. Moreover, the availability of local exit strategiesmakes an already limited tax base vulnerable to a "form of capital strike,"as businesses and households relocate to other areas. 237 Even if taxpayersremain, voters can always retaliate at the ballot box, more directly andprecisely than at the federal level. 238 Not surprisingly, poor people -even in political alliance - have never consistently been able to persuadelocal majorities to enact reasonable public assistance laws.239

175, at 287. ("There are numerous obstacles to legislative action, the most important of which arethe power of inertia [and] the lack of time ... .

232 See Loffredo, supra note 2, at 1278.233 See Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 729 (1985).234 RESCHER, supra note 222, at 139 (defining an ineffectual minority as a group "whose par-

ticipation in the voting process is unable to shift its outcome to a socially and patently more desir-able result").

235 MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEO-

RY OF GROUPS 165 (1977); see also CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THE-

ORY I0 (1970) (observing that "lower socio-economic groups are the least politically active").236 See William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice

Theory for Statutory Interpretation, 74 VA. L. REv. 275, 287 (1988).237 Frances Fox Piven, Reforming the Welfare State: The American Experience, in A

DIFFERENT KIND OF STATE? POPULAR POWER AND DEMOCRATIC ADMINISTRATION 66, 69-70

(Gregory Albo, David Langille & Leo Panitch eds., 1993) [hereinafter A DIFFERENT KIND OFSTATE?] (explaining that "[s]tate and local governments are even more vulnerable to businesspressures in the form of capital strike than is the national government, and both state and localtax laws and social policies are shaped by that vulnerability'); see also Thomas A. Ault, Federal-State Relations and Income Support Policy, in INCOME SUPPORT: CONCEPTUAL AND POLICYISSUES 57, 76 (Peter G. Brown, Conrad Johnson & Paul Vernier eds., 1972) ("[T]here is good rea-son for local governments to be concerned primarily with the economic prosperity of local citizensand businesses and to rely more on regressive taxes; and for the central government to addresswhatever distributional anomalies result.").

238 See David A. Skeel, Public Choice and the Future of Public-Choice-Influenced Legal Schol-arship, 50 VAND. L. REV. 647, 652 (1997) ("Self-interested legislators are likely to focus principallyon getting reelected, since legislators who fail to do so quickly become ex-legislators.'); Michael R.Sosin, Legal Rights and Welfare Change, 196o-.98o, in FIGHTING POVERTY: WHAT WORKS AND

WHAT DOESN'T 260, 265 (Sheldon H. Danziger & Daniel H. Weinberg eds., 1986) (stating that"welfare reform costs money and may cause a severe backlash").

239 See EDWARD AINSWORTH WILLIAMS, FEDERAL AID FOR RELIEF i (1939) (referring to the

"inadequacy" of local relief efforts before the Federal Emergency Relief Administration); Piven,supra note 237, at 69-70 (lamenting the fact that "[n]o one seems even to remember the local and

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Centralizing and nationalizing welfare resolved these problems tosome extent First, federal grant-in-aid programs created financial incen-tives for states and localities to provide assistance;240 second, federal judi-cial review created political leverage for the poor.241 Congress's decisionin 1996 to eliminate the AFDC program reverses both of these effects.242

By devolving block-grant authority to the states, federal law now createsincentives for the states to withhold assistance from poor people who pre-viously received AFDC benefits. 243 Moreover, the law purports to elimi-nate public assistance as a federal entitlement, and therefore may diminishthe force of federal due process claims for loss of assistance. 244

State judicial review of state constitutional welfare claims would allowthe poor to leverage legal activity into political power.245 The literature onjudicially precipitated reform offers no clear account of the relation be-

private tyranny that bedevilled relief programs for the poor before they Were at least partially na-tionalized in the 1930s").

240 See Ault, supra note 237, at 75.241 See Matthew Diller, Poverty Lawyering in the Golden Age, 93 MICH. L. REV. 1401, 1432

(i995) (reviewing MARTHA F. DAvis, BRUTAL NEED: LAwYERS AND THE WELFARE RIGHTS

MOVEMENT, 196o-I973 (1993)) (characterizing the gains brought by federal welfare litigation as"no small accomplishment").

242 The Aid to Families with Dependent Children program (AFDC) began in 1935 as the "Aidto Dependent Children" program under the Social Security Act of r935, 42 U.S.C. § 602 (i935).For 61 years, AFDC served as the federal government's most important income support programfor indigent families with dependent children. In '995, over 13.6 million people, including 9.3million children, received AFDC benefits. See STAFF OF HOUSE COMM. ON WAYS AND MEANS,

I04TH CONG., 2D SESS., OVERVIEW OF ENTITLEMENT PROGRAMS: 1996 GREEN BOOK, BACK-GROUND MATERIAL AND DATA ON PROGRAMS WvITHIN THE JURISDICTION OF THE COMMITTEEON WAYS AND MEANS 386 tbl.8-i (Comm. Print 1996). In 1996, Congress replaced AFDC with aprogram of block grants that states may use to provide "temporary assistance for needy families."Personal Responsibility, Work Authorization, and Medicaid Restructuring Act of 1996, Pub. L.No. 104-193, 1io Star 2105 (1996) [hereinafter 1996 Welfare Reform Act].

243 For a discussion of the 1996 Welfare Reform Act and how federal requirements are expectedto affect state assistance programs, see HERSHKOFF & LOFFREDO, cited in note i5, at 32-54 &nn.172-289, 98-104 & nn.495-537. As one policy analyst observes, "[t]he 1996 welfare reformsboost the incentives for state governments to decrease the number of people on welfare in theirstates.... States will reap financial rewards either from cutting benefit levels or from helping (orforcing) recipients off welfare." Volden, supra note 208, at 92.

244 Arguably, Congress lacks power to define statutory welfare benefits in a way that subvertsdue process. See Arlo Chase, Note, Maintaining Procedural Protections for Welfare Recipients:Defining Property for the Due Process Clause, 23 N.Y.U. REV. L. & Soc. CHANGE 571, 572, 594-97 (I997) (arguing "that the Court should incorporate the importance of the benefit at issue whendeciding whether it is 'property' for the purposes of Due Process"); Nancy Morawetz, A Due Pro-cess Primer: Litigating Government Benefit Cases in the Block Grant Era, 30 CLEARINGHOUSE

REV. 97 (I996) (presenting litigation strategies).245 See Richard Briffault, Distrust of Democracy, 63 TEx. L. REV. 1347, 1364 (1985) (reviewing

DAVID B. MAGLEBY, DIREcT DEMOCRACY: VOTING ON BALLOT PROPOSITIONS IN THE UNI-TED STATES (1984)) (discussing the importance of judicial review to mitigate the antiminority biasof direct democracy, and noting that "in times of fiscal stringency, states may be more prone to cutprograms that help minorities and the poor than those that serve more politically powerfulgroups"); Thshnet, supra note 71, at io82 (C'R]ecipients of public assistance lack substantial politi-cal power and must call on the courts for aid in controlling the bureaucracy.").

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tween court decrees and social change.2 4 6 Nevertheless, by allowing thepoor a juridical space, the state court provides an important point of entryinto political life. 247 Commentators thus analogize the court's function tothat of a surrogate "pressure group activity," potentially working to pre-vent parochial or special interests from subverting a state's constitutionalcommitment to its poor.248 Judicial review - indeed, the mere threat oflitigation - places the claims of the poor "on the table," giving them a sa-lience that they would ordinarily lack.249 In addition, judicial articulationof state constitutional goals can change political discourse as legal actorsinternalize judicial explanations and keep them in mind as a matter ofcourse. 250 Judicial review also facilitates productive political activity,"stirring the governmental entities to action to make sure that issues areaddressed and choices made."251

Doubts may linger as to whether judicial review will discourage legis-lators from facing up to their constitutional responsibilities. Certainly, theavailability of judicial review will protect elected representatives from"taking the heat" for controversial welfare decisions. 2 2 The usual criti-cisms of judicial review, however, carry less force when transported to thestate court context. Unlike the federal system, where concerns about judi-cial finality may weigh against. Article Ill intervention, maybe the collabo-

246 See, e.g., Lawrence Baum, Judicial Impact as a Form of Policy Implementation, in PUBLICLAW AND PUBLIC POLICY 127, 128 (John A. Gardiner ed., 1977) (developing a "compliancemodel" of judicial impact); Marc Galanter, The Radiating Effects of Courts, in EMPIRICALTHEORIES ABOUT COURTS, supra note 225, at 117, 118 (offering a "centrifugal view" of judicialinfluence).

247 Cf. Stuart Scheingold, Constitutional Rights and Social Change: Civil Rights in Perspective,in JUDGING THE CONSTITUTION, supra note I 15, at 73, 8o (contending that civil rights decisions"serve[] ... as mobilizing designs contributing to the broadening of American pluralism"); Eliza-beth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Move-ment, 61 N.Y.U. L. REV. 589, 642 (1986) (suggesting that the radical feminist vision "began withthe formulation of rights claims in the courts").

248 See Clement E. Vose, Litigation as a Form of Pressure Group Activity, 319 ANNALS 20(1958) (presenting a classic account of test-case litigation as a form of political pressure).

249 See Michael W. McCann & Helena Silverstein, Social Movements and the American State:Legal Mobilization as a Strategy for Democratization, in A DIFFERENT KIND OF STATE?, supranote 237, at 131, 137 (contending that "[piressure from a legal strategy can be derived simply fromthe prospect of litigation and the attendant costs, delays, and loss of control over policy disputesthat it poses to adversaries both in and outside the state").

250 See MICHAEL W. MCCANN, RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS

OF LEGAL MOBILIZATION 277 (1994) (stating that litigation, as part of a multidimensional strate-gic campaign, opens up "new ideological and organizational possibilities for expanding rights andincreasing power"); Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Spacefor Clients to Speak, 6 N.Y.U. REV. L. & SOC. CHANGE 535, 538-42 (1987) (discussing the em-powering potential of litigation).

251 Colin S. Diver, The Judge as Political Powerbroker: Superintending Structural Change inPublic Institutions, 65 VA. L. REV. 43, 79-82 (1979).

252 See Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of PublicInstitutions, 1983 DUKE L.J. 1265, 1282 ("Had the courts not broken the ice on segregation, thecivil rights legislation of the i96o's would have been more problematical. There is no straightcause and effect operating here, so much as there is interaction and circularity.").

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rative and conditional nature of state decisionmaking, combined with thepublic choice problem, argue in favor of judicial intervention.

B. Institutional Competence and Welfare Litigation

Even if state judicial review of state constitutional welfare rights maybe normatively justified, realization of this enterprise would still have tohurdle three additional arguments. The first relates to the judiciary's lackof institutional capacity to gather the facts necessary for an informedjudgment about complicated questions of public policy. The second re-lates to the absence of manageable standards commanding sufficient so-cial consensus on the redistributive questions associated with welfarequestions. The third relates to the likelihood of public resistance to in-creased welfare payments and the consequent difficulty of judicial en-forcement. This section briefly assesses the strength of these arguments asapplied to state, rather than federal, actors. It then reconsiders these ar-guments in light of recent state court decisions involving challenges, understate constitution education clauses, to the adequacy of public school sys-tems.

r. State Courts as Fact Gatherers. - Commentators frequentlyrefer to the courts' limited ability to gather facts about complex socialissues.25 3 The adversarial system restricts the ability of all courts inthe United States to marshal evidence,25 4 and state-specific proceduresmay limit state courts even more. Discovery rules in some states areless generous than under the Federal Rules of Civil Procedure,255 anddisclosure may also be more tightly regulated when the state is a partyto the litigation.2

-6 Moreover, because a legislature has no duty to

253 Whether this concern is well-grounded with respect to federal courts is beyond the scope ofthis discussion. There is no question that federal jurisprudence reflects this concern in a numberof doctrinal approaches, such as rationality review, void-for-vagueness, and overbreadth, all ofwhich allow a court to avoid examining legislative facts. See Archibald Cox, The Role of Con-gress in Constitutional Determinations, 40 U. CIN. L. REV. 199, 213-14 (1971). Nevertheless,when legislative action suppresses a fundamental right in favor of a compelling state interest, see,e.g., West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638-40 (1943), or relies on race or gen-der as an explicit legislative classification, see, e.g., Adarand Constructors, Inc. v. Pena, 5i 5 U.S.200, 226-31 (1995), a reviewing court will carefully scrutinize legislative facts to ensure that thepredicate on which a policy or compelling interest ostensibly rests actually exists. Although thesubstantive contexts differ, doctrinal requirements in these diverse areas share a structural shape:the government bears the burden of establishing "the factual necessity" of its stated justificationby showing "that the recited harms are real, not merely conjectural, and that the regulation will infact alleviate those harms in a direct and material way." Turner Broad. Sys. v. FCC, 512 U.S.622, 665-66 (1994) (plurality opinion).

254 See Lillian R. BeVier, Judicial Restraint: An Argument from Institutional Design, I7 HARV.J.L. & PUB. POL'Y 7, 8 (1994) (discussing the limited fact-gathering capacity of courts and legisla-tures).

255 See generally John B. Oakley & Arthur F. Coon, The Federal Rules in State Courts: A Sur-vey of State Court Systems of Civil Procedure, 6I WASH. L. REv. 1367, 1424-26, app. at 1428-34(1986) (surveying the laws of civil procedure of various states).

256 Until 1993, a party in a New York court action could not use the interrogatory or notice toadmit to secure disclosure from the state. See DAVID D. SIEGEL, NEw YORK PRACTICE 511 n.14

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develop a record, the state court lacks the empirical guidance providedby administrative agencies subject to "hard look" review by federalcourts.

2 5 7

Institutional competence, however, is a comparative question, and therelevant question is whether the state legislature enjoys a comparative ad-vantage 2 8 over the state court. We know the advantages of Congressrelative to Article III courts: a well-formed committee structure with staffand resources, virtually year-round sessions, support from resource centerssuch as the Congressional Research Service and the Congressional BudgetOffice, and control over the legislative agenda.2 5 9 Just as state courts lackthe benefits of a Ways and Means Committee to provide assistance withempirical questions, 260 so too do many state legislatures. 261 Indeed, legis-latures in many states suffer from numerous institutional deficits that af-fect their ability to focus on complex issues in a sustained and informedmanner. As Professor John Devlin explains, "[Miany state legislaturesmeet for only short and intermittent sessions, and the legislators them-selves are often only part-time politicians with other livelihoods that re-

(2d ed. 1991) (discussing the prior restrictive rule and stating that "[t]he reason for these excep-tions is unconvincing").

257 Administrative "hard look" is a doctrinal device that controls the ways in which agenciescarry out their statutory mandates. It is facilitated by the requirement that an agency construct ameaningful record for its decision. The approach responds directly to the need to constrain ad-ministrative discretion and to the desire to effectuate values that are at the core of regulatory leg-islation. Hard look review is thus a quasi-procedural tool with explicit substantive consequences:the court insists on a meaningful decisionmaking process that gives due consideration to legallyprotected interests and affords reasoned explanation for policy choices made and rejected. Proce-dural irregularity becomes a signal that a decision lacks empirical support. See Richard B. Stew-art, The Discontents of Legalism: Interest Group Relations in Administrative Regulation, 1985Wis. L. REV. 655, 666-67; Cass R. Sunstein, Deregulation and the Hard-Look Doctrine, 1983 SuP.CT. REV. 177, 181-84.

258 See Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Pro-fessors Levinson and Eisgruber, 83 GEo. L.J. 385, 391 (1994) (using the economic term "compara-tive advantage" to explain comparative institutional competence).

259 See Robert A. Burt, Miranda and Title II: A Morganatic Marriage, 1969 SuP. CT. REv. 81,114-18 (discussing the superior fact-gathering capacity of Congress). But see Harry H. Welling-ton, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83YALE L.J. 221, 240 (1973) (raising questions about legislative fact-finding capabilities).

260 See Geoffrey C. Hazard, Jr., Lau' Reforming in the Anti-Poverty Effort, 37 U. CHI. L. REV.242, 249 (1970) (noting the availability of a Ways and Means Committee to legislatures but not tocourts).

261 See Hans A. Linde, Observations of a State Court Judge, in JUDGES AND LEGISLATORS:TOWARD INSTITUTIONAL COMITY 117, 118 (Robert A. Katzmann ed., 1988) (describing manystate legislatures as having "relatively weak institutional structures or traditions of pursuing acomplex subject"). Jerry Mashaw writes:

Perhaps no governmental institution is held in as little esteem as our state legislatures.Cataloguing their weaknesses has provided professional employment for generations ofpolitical scientists. And telling tales of their inanities, irregularities, and outright dishon-esty is a favorite indoor sport for those "in the know" about the state legislative process.

Jerry Mashaw, Constitutional Deregulation: Notes Toward a Public, Public Law, 54 TUL. L. REv.849, 859 (i98O).

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quire attention. State legislative staffs are smaller and less regimentedthan their federal counterparts. '262

By subjecting welfare laws to judicial review, and insisting that thelegislature demonstrate the empirical bases for its choices, state courtscould improve lawmaking by encouraging representatives to consider realworld facts, as well as social science evidence, in state policymaking.These legislative facts would then become a part of the record for judicialreview and would fill in some of the gaps in the judiciary's own fact-finding capabilities. Professor Kenneth L. Karst explains the healthy ef-fect that judicial attention to facts is likely to have on constitutional adju-dication:

While we cannot be sure that exposure of the judge to information willproduce a decision based on information, we can hope that the develop-ment of the legislative facts will produce something of that effect. If wecannot be certain of informed decisions, we can hope that informed judgeswill give us better decisions. Such a position requires no apology. Afterall, much of our constitutional law rests on propositions which cannot beproved. When we hold a truth to be self-evident, we mean we believe iton faith. The traditional American faith in the value of education seemsno less justified when applied to judges who make choices of communitypolicy than when applied to the community itself.26 3

Moreover, the state courts by now have had substantial practice withprocedural devices that allow them to utilize the knowledge of other legalactors, to gather facts, and to marshal expertise needed for the enforce-ment of positive rights.264 They can also look to federal practice for guid-

262 John Devlin, Toward a State Constitutional Analysis of Allocation of Powers: Legislators

and Legislative Appointees Performing Administrative Functions, 66 TEMP. L. REv. 1205, 1228

(r993); see also Note, State Economic Substantive Due Process: A Proposed Approach, 88 YALELJ. 1487, 1490 (1979) (stating that 1[s]ome state and local legislatures meet for brief periods andlack the resources needed for sophisticated policy analysis").

263 Kenneth L. Karst, Legislative Facts in Constitutional Litigation, i96o Sup. CT. REV. 75,I 11-I2; see also Rachael N. Pine, Speculation and Reality: The Role of Facts in Judicial Protec-tion of Fundamental Rights, 136 U. PA. L. REv. 655, 656 (1988) (positing "that the law's ignoranceof its actual impact is one of the most severe threats to civil liberties"); Richard A. Posner, AgainstConstitutional Theory, 73 N.Y.U. L. REV. 1, 11-12 (1998) (urging greater judicial reliance on so-cial science research); cf United States v. Kras, 409 U.S. 434, 460 (I973) (Marshall, J., dissenting)("It is perfectly proper for judges to disagree about what the Constitution requires. But it is dis-graceful for an interpretation of the Constitution to be premised upon unfounded assumptionsabout how people live."); Poe v. Ullman, 367 U.S. 497, 508 (i96I) (urging the Court not "to close[its] eyes to reality").

264 See Ralph Cavanagh & Austin Sarat, Thinking About Courts: Toward and Beyond a Juris-prudence of Judicial Competence, 14 LAW & Soc. REV. 371, 373 (1980) ("Critics of court compe-tence ... underestimate the demonstrated ability of courts to evolve new mechanisms and proce-dures in response to implicit or explicit societal demands.").

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ance with such devices.265 The Brandeis brief,266 expert testimony,267

amicus submissions, 268 special review boards,269 special masters, 270 magis-trates, 271 referees, 272 facilitators, 273 election officers,2 74 and judicial no-tice275 are all established methods for assisting courts in linking their ad-judicative power with forms of knowledge that are critical inunderstanding the effects of law on social life. 27 6 In addition, throughsuch devices as intervention, amicus curiae briefs, and testimony, courts inboth systems can encourage poor people to participate in welfare litigation

265 See Dorf, supra note 229, at 53-60 (describing procedural mechanisms aimed at improving

the Court's ability "to assimilate information").266 The "Brandeis brief' takes its name from the brief filed by Louis Brandeis in Muller v. Ore-

gon, 2o8 U.S. 412 (1908), and refers to any court submission relying on social science data in sup-port of a legal argument. See Clyde Spillenger, Elusive Advocate: Reconsidering Brandeis asPeople's Lawyer, 1o5 YALE L.J. 1445, 1463 n.62 (1995) (citation omitted) (discussing innovativefeatures of the Brandeis brief for legal argument).

267 The standard for assessing scientific and other expert evidence has shifted from that of gen-eral acceptance by the scientific community to substantive validity under reliable scientificmethod. See Gordon J. Beggs, Novel Expert Evidence in Federal Civil Rights Litigation, 45 AM.U. L. REV. 1, 16-36 (I995); Adina Schwartz, A "Dogma of Empiricism" Revisited: Daubert v.Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v.United States, io HARV. J.L. & TECH. 149, 151-52 (997).

268 See Donald R. Songer & Ashlyn Kuersten, The Success of Amici in State Supreme Courts,48 POL. RES. Q. 31, 40 (1995) (discussing the importance of amici in state supreme courts).

269 See, e.g., New York State Ass'n of Retarded Children v. Rockefeller, 357 F. Supp. 752(E.D.N.Y. 1973). From 1979 to 1986, I was co-counsel to the Willowbrook plaintiff class in thiscase.

270 See, e.g., City Stores Co. v. Ammerman, 266 F. Supp. 766, 778 (D.D.C. 1967) (ordering theappointment of a special master to oversee compliance); Linda Silberman, Judicial Adjuncts Re-visited: The Proliferation ofAd Hoc Procedure, 137 U. PA. L. REV. 2131, 2 143-44, 2164-65 (1989).

271 See, e.g., Woody v. Cello-Foil Prods., 546 N.W.2d 226, 229 (Mich. 1996) (remanding to mag-istrate to find facts relevant to a denial of worker's compensation benefits).

272 See, e.g., Zamir v. Rottenstein, 631 N.Y.S.2d 505, 507 (Sup. Ct. 1995) (confirming a refereereport on an issue ordered by the court); Raymond Powers, Court-Appointed Referees: An (Un-derutilized) Adjunct to the Court, A Way Toward Better Management of Discovery, 23WESTCHESTER B.J. 97 (1996) (describing benefits of using court-appointed referees).

273 See Pinto v. Alabama Coalition for Equity, 662 So.2d 894, 896 (I995) (describing appoint-ment of facilitator in case arising from Alabama Coalition for Equity, Inc. v. Hunt, Nos. CV-9o-883-R, CV-9I-OI17 (Ala. Cir. Ct. 1993), reprinted in Opinion of the Justices No. 338, 624 So.2d107 app. (Ala. 1993)). I was co-counsel to proposed-intervenor Teamsters for a Democratic Unionin this litigation until 1995.

274 See, e.g., United States v. International Bhd. of Teamsters, 742 F. Supp. 94, 97 (E.D.N.Y.199o) (noting that a court-appointed independent administrator presented election rules for reviewpursuant to consent decree). I was co-counsel until 1995 to proposed-intervenor Teamsters for aDemocratic Union in this litigation.

275 See, e.g., Kenneth Culp Davis, Judicial Notice, 55 COLUM. L. REV. 945 (955) (arguing thatrestrictive judicial notice provisions in the Model Code are fundamentally unsound).

276 See RESCHER, supra note 222, at 136 (suggesting that effective welfare planning requires"extensive knowledge of the details of particular cases[,] knowledge often more readily availableto the man on the spot than to some remote bureaucrat"); Hilary Wainwright, A New Kind ofKnowledge for a New Kind of State?, in A DIFFERENT KIND OF STATE?, supra note 237, at 112,I 15 (contending that "[u]nless the public authority has a clear sense of the limits of its knowledge,and realizes that its capacity to meet social needs depends on the insights of the people it serves,its participation schemes will just be new forms of benevolent paternalism").

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themselves. Such participation helps to secure the cooperation and con-sent of regulated groups.27 7 It also allows the court to benefit from theviews and insights of "user groups" - indigent families and children, low-income workers, impoverished seniors, members of the so-called under-class - who have unique information about welfare programs and candescribe first-hand the practical consequences of such matters as forms ofbenefits, levels of assistance, and modes of service delivery.278

Finally, even if one assumes that state legislatures are better equippedat fact-gathering than are state courts, it does not follow that legislaturesare better positioned to use the information that they collect to achieveconstitutional goals. Commentators currently describe legislative discus-sions about welfare in disparaging terms, as a discourse "marked byscapegoating, stereotyping, and stigmatization."27 9 Nor should this de-scription come as a surprise. State legislatures, like all legislatures, are notrequired to make fact-based decisions20 - only political ones. Exclu-sively political considerations may be appropriate when the issue is onethat is committed to politics. A state constitutional welfare right, however,is intended to transcend politics, making permanent the state's policycommitment; it therefore requires the principled judgment that commen-tators conventionally associate with courts.28 1

2. State Courts as Policymakers. - Critics further suggest that be-cause of the lack of social consensus on redistributive issues, state courtsare incapable of devising manageable standards for welfare rights cases.The strongest version of this argument posits that "no right answer" existsfor cases raising state constitutional welfare claims - indeed, that it isimpossible to define any public values at all .22 A weaker version shiftsfrom substance to process, contending that "objectively right answers"exist, but that their selection legitimately falls to the more democratically

277 On the value of participation in government decisions that affect one's life, see generally

OWEN M. Fiss, THE STRUCTURE OF PROCEDURE (1979).278 See Gregory Albo, Democratic Citizenship and the Future of Public Management, in A

DIFFERENT KIND OF STATE?, supra note 237, at 17, 30 (observing that "[l]ong-term improvementof service delivery is contingent upon input from user groups").

279 Loffredo, supra note 2, at 1285; see Cass R. Sunstein, Interest Groups in American PublicLaw, 38 STAN. L. REV. 29, 72-73 (i985) (remarking on the absence of deliberative discourse inlegislative discussions about welfare).

280 See Hans A. Linde, Courts and Torts: "Public Policy" Without Public Politics?, 28 VAL. U.L. REv. 821, 836 (1994) (stating that legislatures "[p]aradoxically ... have wider opportunities toobtain and consider factual predicates for policy choices, but they are not obliged to make fact-based and rationally efficient policies").

281 See Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 505-06 (1988) (re-viewing LAURA KALMAN, LEGAL REALISM AT YALE: 1927-196o (1986)) Oinking the idea of insti-tutional competence with the legal-process requirement of "reasoned elaboration" in judicial deci-sionmaking).

282 See DANIEL A. FARBER & PH=L P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICALINTRODUCTION 69-70 (iggi) (discussing the difficulties of defining public values appropriate forjudicial enforcement).

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accountable legislature.28 3 No one can dispute that welfare raises a myr-iad of complex questions that defy easy answer.28 4 Indeed, they constitutewhat more generally has been called an "example of indeterminacy," re-quiring a court to choose from among contested values without any selec-tion criteria, in the face of imperfect information and normative uncer-tainty.28S

John Hart Ely observes, however, that "[t]he Court has come generallyto recognize ... that if the issue is otherwise properly before it, its firstduty is to try to fashion manageable standards. '2 6 Indeed, both state andfederal courts enforce, more or less successfully, substantive norms, almostall of which are without a determinative edge and require value selec-tion. 28 7 For example, courts have considered whether a business mergerfosters monopolization and concentration; 288 whether an institution's psy-chiatric practices protect a mentally retarded individual from harm;28 9

whether the offering price in a merger comports with the shares' fair

283 Lea Brilmayer, Wobble, or the Death of Error, 59 S. CAL. L. REV. 363, 365-71 (i986) (dis-

cussing the problem of indeterminacy in judicial decisionmaking).284 Thus, Larry Sager recites the various barriers that a reviewing court must hurdle:

There is at the outset, of course, the very difficult question of how "adequate" welfare and"reasonable" efforts should be cashed out in this context. But even if we assume somerough operational understanding of these defining terms for each minimum entitlement, allthis and much more would have to be decided: Should the eligible recipients be given di-rect benefits, vouchers, or money? Should the program be administered and financed atthe local, regional, state, or federal level? Who should staff such programs, and howshould the staff be chosen and trained? Who should bear the financial burdens of suchprograms, and how should the burdens be distributed among them? These are immenselycomplex questions of social strategy and social responsibility, questions that are linked toan intricate web of extant social services, taxes, and economic circumstances.

Sager, Plain Clothes, supra note io, at 420; see also AMARTYA SEN, CHOICE, WELFARE ANDMEASUREMENT 446 (1982) (discussing difficulties in the social science process of "assessing ...[poverty] statistics in line with socially held views as to what counts as poverty"). But see Redish,supra note 113, at io6o ("The so-called 'absence-of-standards' rationale borders on the disingenu-ous, because the Supreme Court has never been at a loss to decipher roughly workable standardsfor the vaguest of constitutional provisions when it so desires.").

285 Robert H. Mnookin, Defining the Questions, in THE INTEREST OF CHILDREN: ADVOCACY,LAW REFORM, AND PUBLIC POLICY 16, 17 (Robert H. Mnookin ed., 1985) [hereinafter THEINTEREST OF CHILDREN] (discussing "the value problem" that arises in children's rights cases);cf. Asbjorn Eide, Realization of Social and Economic Rights: The Minimum Threshold Approach,43 INT'L COMM'N JURISTS REV. 40, 40 (1989) (referring to "the fact that... the precise content ofa number of economic, social and cultural rights ... remains extremely vague").

286 John Hart Ely, Suppose Congress Wanted a War Powers Act That Worked, 88 COLUM. L.REv. 1379, 1408 (1988) (emphasis omitted).

287 See Robert A. Katzmann, Making Sense of Congressional Intent: Statutory Interpretationand Welfare Policy, 104 YALE L.J. 2345, 2348 (1995) (reviewing R. SHEP MELNICK, BETWEENTHE LINES: INTERPRETING WELFARE RIGHTS (1994)) (commenting on the prevalence of open-ended statutory terms, such as the requirement, in the Education for All Handicapped ChildrenAct, of a "free appropriate public education").

288 See Hospital Corp. of Am. v. FTC, 807 F.2d 1381, 1389 (7th Cir. 1986). I thank my col-league Eleanor M. Fox for this reference.

289 See Youngberg v. Romeo, 457 U.S. 307, 314-23 (1982).

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value;290 and whether the economic value of a human life should accountfor employment possibilities.291 As common law generalists, state courtshave broad experience in articulating normative frameworks for complexsocial and economic issues. In just the last fifty years, state courts haverevolutionized legal rules affecting family relations, products liability, andtort immunities.29 2 From these perspectives, adjudication of state consti-tutional welfare cases simply iterates a constructive process typical of allareas of law in which substantive norms are enforced. 29 3 Thus, tort lawlooks to professional custom; 29 4 contract law to merchants' customs;295

takings doctrine (at times) to "normal behavior";296 institutional reformcases under the Fourteenth Amendment to "professional judgment";297

and education cases under state constitution educational clauses to

290 See Jay W. Eisenhofer & John L. Reed, Valuation Litigation, 22 DEL. J. CORP'. L. 37, 44

(1997) ("It has been long-recognized that 'fair value' does not mean 'fair market value' as marketvalue is not determinative of price in an appraisal proceeding.").

291 See Ayers v. Robinson, 887 F. Supp. I049 (N.D. Ill. 1995).292 See e.g., Lawrence Baum & Bradley C. Canon, State Supreme Courts as Activists: New

Doctrines in the Law of Torts, in STATE SUPREME COURTS: POLICYMAKERS, supra note 147, at83-85 (describing "dramatic changes in tort law since World War 11").

293 See Jack M. Beermann & Joseph William Singer, Baseline Questions in Legal Reasoning:The Example of Property in Jobs, 23 GA. L. REv. g9i, o16 (i989) (describing the role of baselineanalysis in legal reasoning); Scott & Macklem, supra note 54, at 77-78 (discussing judicial en-forcement of the International Covenant on Economic, Social, and Cultural Rights, and explain-ing that "where a state is required to progressively achieve the realization of a benefit not initiallyenjoyed by all at the time of constitutional entrenchment, the baseline or point of referenceagainst which state action would be assessed by the judiciary would be a moving one").

294 See, e.g., Richard A. Epstein, The Path to The T.J. Hooper: The Theory and History of Cus-tom in the Law of Tort, 21 J. LEGAL STUD. I, 6-io (1992) (analyzing reliance on reasonable cus-tom in the law of tort); cf James A. Henderson, Jr. & John A. Siciliano, Universal Health Careand the Continued Reliance on Custom in Determining Medical Malpractice, 79 CORNELL L.REV. 1382, 1383-98 (2994) (discussing the difficulties of developing reliable health care standardsas norms of customary usage for tort cases).

295 See, e.g., Western Indus., Inc. v. Newcor Canada Ltd., 739 F2d 1198, 1202, 1204 (7 th Cir.1984). In this case, the court found trial court error in refusing to permit qualified industry execu-tives to testify that consequential damages were "unheard of" in their trade, id. at 1202, on theground that "if the custom of the trade is that the buyer shall not receive consequential damages,it is a binding though silent term of the contract and overrides the provisions" in the UniformCommercial Code, id. at 1204. See also Chris Williams, The Search for Bases of Decision inCommercial Law: Llewellyn Redux, 97 HARv. L. REV. 1495, 1499 (1984) (reviewing LEON E.TRAKMAN, THE LAW MERCHANT: THE EvOLUTION OF COMMERCIAL LAW (1983)) (stating thatcourts applying the Uniform Commercial Code "were obliged to scrutinize the habits of merchantlitigants in order to delineate the extent of each merchant's business commitment" (quotingTRAKMAN, supra at 35-36)).

296 Carol M. Rose, Takings, Federalism, Norms, ios YALE L.J. 1121, 145 (1996) (reviewingWILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS (1995)).

297 Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (holding that the state's treatment of an in-voluntarily committed mentally retarded person violates due process "only when the decision ...is such a substantial departure from accepted professional judgment, practice, or standards as todemonstrate that the person responsible actually did not base the decision on such a judgment");see also Susan Stefan, Leaving Civil Rights to the "Experts": From Deference to Abdication Underthe Professional Judgment Standard, 202 YALE L.J. 639, 685 (1992) ("In resolving affirmativeclaims for government services, courts follow an adjudicatory path that appropriately involvesthe professional judgment standard.")

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evolving educational practice.298 So, too, can courts adjudicating welfarecases develop manageable standards that draw guidance from externalsources of information. No doubt evaluating the adequacy of grants is dif-ficult, and certainly more difficult than developing standards for evaluat-ing categorical requirements unrelated to need. We can acknowledge thedifficulty, however, and still insist that a state court rise to the challengerather than abdicate its own constitutional duty by yielding entirely to theother branches. Indeed, in difficult cases, the state court's most appropri-ate stance may be to acknowledge openly the limits of the judicial process- to "[flace up to indeterminacy"2 99 - and to use its power of review toencourage the coordinate branches to work together to develop condi-tional responses to constitutional questions.300 The state court can thuscontribute to the more effective implementation of positive rights by en-couraging, and insisting upon, the gathering of information, the testing ofmethods, and the "learning by monitoring" that commentators associatewith improved decisionmaking.301

3. State Courts as Rights Enforcers. - Finally, commentators suggestthat public recalcitrance -- the electorate's apparent unwillingness tofund increases in social service delivery - poses an insuperable bar to ju-dicial enforcement of welfare norms.30 2 It is too late in the day to denythat the judicial enforcement even of negatively phrased rights hasmarked fiscal consequences on state budgets.30 3 Yet courts, both federaland state, have ordered the desegregation of schools, 30 4 the provision of

298 See Alabama Coalition for Equity, Inc. v. Hunt, Nos. CV-go-883-R, CV-91-OII7 (Ala. Civ.

App. 1993), reprinted in Opinion of the Justices No. 338, 624 So. 2d 107 app. at 127 (Ala. I993)(approving the use of comparisons with educational practices in other states as measures of educa-tional adequacy); Patricia F. First & Louis F. Miron, The Social Construction of Adequacy, 20 J.L.& EDUC. 421 (i99i) (discussing the judicial construction of education adequacy norms).

299 Robert H. Mnookin, Final Observations, in THE INTEREST OF CHILDREN, supra note 285,

at 5io, 526; see Joel F. Handler, Discretion in Social Welfare: The Uneasy Position in the Rule ofLaw, 92 YALE L.J. 1270, 1282 (1983) (discussing "how to structure a discretionary decisionmakingprocess" where facts and statutes are nevertheless indeterminate); cf Thomas Barton, "The Con-stitution of the Bureaucratic State"-- A Response to Professor Tushnet, 86 W. VA. L. REV. I i2o,1122-23 (1984) ("[J]udges abdicate their powers and responsibilities of Constitutional interpreta-tion at the feet of bureaucrats whenever professional norms are held to be synonymous with sub-stantive law.").

300 See Dorf & Sabel, supra note 124, at 288 (discussing ways in which courts encourage rollingbest-practice rulemaking by other legal actors).

301 Charles F. Sabel, Learning by Monitoring: The Institutions of Economic Development, inTHE HANDBOOK OF ECONOMIC SOCIOLOGY 137, 137-39 (Neil J. Smelser & Richard Swedbergeds., 1994).

302 See JAMES W. NICKEL, MAKING SENSE OF HUMAN RIGHTS: PHILOSOPHICAL REFLEC-

TIONS ON THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 164 (1987) (noting that "[olne ofthe largest barriers to the acceptance of welfare rights as universal human rights is the belief thatthey are simply too expensive for many countries today").

303 See id. (observing that negatively phrased rights, by "impos[ing] restraints on actions -such as a right against torture - often rule out tactics that are cheap and dirty and thus requiremore costly or difficult tactics to be used," and that "[r]ights that require the provision of protec-tions will necessitate an expensive police and legal system").304 See Brown v. Board of Educ., 347 U.S. 483, 495-96 0954)-

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health care to the mentally retarded,305 the expansion of the franchise,30 6

the provision of public defenders to the indigent accused,30 7 compensationfor the public use or for the restriction of private use of private prop-erty,308 and the provision of transcripts to indigent civil litigants30 9 - allwith a clear understanding that the remedial decree causes a reallocationof budget priorities and possible increases in public taxes.310

Even as a matter of federal law, there is a well-settled rule that a con-stitutional claim cannot be defeated by the government's lack of funds.3 1'Nevertheless, the idea that taxes might be adjusted to fulfill a state consti-tutional welfare right seems unimaginable.31 2 I do not deny that thetransparency of budget effects in welfare cases could alter the public's re-action to a judicial decree. And certainly, courts usually do not - andshould not - involve themselves directly in the raising of public money.Even the federal courts, however, will order tax levies when a governmen-tal defendant fails utterly and repeatedly to remedy a violation of theFourteenth Amendment.31 Because state judges are closer to local prob-lems, are familiar with local needs, and are the products of local politicalprocesses, 314 they may be better positioned than federal judges to deal re-alistically with the fiscal consequences of decisions; to work coliabora-tively with the other branches to devise new constitutional solutions; andto encourage the public to consider long-term benefits of welfare policiesas well as any short-term costs.

C. A Jurisprudence of Consequences

Theorists have no complete account of how judges create new legaldoctrine.315 This section nevertheless attempts to sketch out what state

30S See Youngberg v. Romeo, 457 U.S. 307, 324 (1982).306 See Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 (1966).307 See Gideon v. Wainwright, 372 U.S. 335, 344 (2963).308 See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482

U.S. 304, 322 (x987).309 See Griffin v. Illinois, 351 U.S. 12, i8-2o (1956).31o See Horowitz, supra note 252, at 1266 (commenting on the prevalence of "[jiudicial budget-

ing").311 See Frank H. Easterbrook, Civil Rights and Remedies, 14 HAV. J.L. & PUD. POL'Y 203,

107 (iggi) (arguing that a federal court's finding of federal constitutional violation "implies anobligation to raise money" that is itself enforceable by the federal court).

312 Cf. William E. Nelson, Two Models of Welfare: Private Charity Versus Public Duty, 7 S.CAL. INTERDiSC. LJ. 295, 297 (I998) (observing that an ideological concern of welfare law priorto the Great Society was "protection of the public purse" (quoting In re Cook, 198 N.Y.S.2d 582,584 (196o))).

313 See, e.g., Missouri v. Jenkins, 495 U.S. 33, 57 (99o) (allowing the levying of taxes despitestatutory limitations "in order to compel the discharge of an obligation imposed ... by the Four-teenth Amendment").

314 See Kaye, Contributions, supra note 52, at 56.31S This broader question is beyond the scope of this Article; however, other commentators

have addressed the issue. See, e.g., Victoria F. Nourse, Making Constitutional Doctrine in a Real-ist Age, 145 U. PA. L. REv. r401, 1404 (1997) (characterizing doctrine as "a practice that developswithin institutions, not simply as the random acts of individual judges"); Edward Rubin &

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judicial review of state constitutional welfare questions might entail, whilerecognizing, to use Justice Frankfurter's apt phrase, the "intractability ofany formula to furnish definiteness of content for all the impalpable fac-tors involved in judicial review."3 16 A state court faced with a state consti-tutional welfare challenge ought to subject a legislative classification torigorous scrutiny to determine whether the provision is likely to effectuatethe constitutional goal. 3 17 Whereas federal rationality review starts from apresumption of constitutionality, the proposed approach would shift theburden of proof, imposing a duty on the state to justify its legislativechoices as a well-grounded means of moving toward a prescribed constitu-tional goal.31 8 In the process of review, the state court would provide a setof institutional arrangements enabling other legal actors - the legislature,social service departments, welfare recipients themselves - to developand share information about workable alternatives that might reasonablycarry out the state constitutional welfare mandate. The proposed stan-dard should not be conflated with some form of heightened scrutiny thatasks, "How does this policy burden a constitutional right?" The questionis instead, "How does this policy further a constitutional right?"

I use the term "consequential" to describe this process of assessingwhether a state action is likely to achieve a mandated policy.3 19 A conse-quentialist approach obviously brings to the surface questions about theeffect of legal pronouncements on society and juridical actors. While rec-ognizing the indeterminacy of legal rules, the proposed standard rests onthe pragmatic view that legal constructs shape public life and have impor-

Malcolm Feeley, Creating Legal Doctrine, 69 S. CAL. L. REv. 1989, 1992 (1996) (suggesting thatnew legal doctrine is formed from "existing doctrine, personal belief or attitude, and the desire tointegrate the two" in a process that entails a "phenomenology of institutional thought"); see alsoCharles E. Clark & David M. Trubek, The Creative Role of the Judge: Restraint and Freedom inthe Common Law Tradition, 71 YALE L.J. 255 (1961) (discussing the making of common law).

316 Universal Camera Corp. v. NLRB, 340 U.S. 474, 476 (051); cf. Gunther, supra note 202, at

48 ("The model is, in sum, not a simple formula capable of automatic problem-free application. Itis a suggestion of a direction for modest interventionism with substantial promise of feasibility

317 Federal rationality review determines whether a legislative act is ultra vires, or outside thescope of assigned power. The standard that I suggest might be called "ultra meta" review: thecourt's function is to ensure that legislative efforts do not fall outside the constitutional goal. Ithank Alexis Jervis, a classics scholar, for help with the term.

318 Cf. NICKEL, supra note 302, at 153 (stating that "[t]he right to life concerns results, not insti-

tutional specifics").319 Cf Miller, supra note 56, at 201-02 (calling for affirmative rights to social and economic as-

sistance, and recognizing the need to develop "[a] jurisprudence of consequences"). See generallyALEXANDER H. PEKELIS, The Case for a Jurisprudence of Welfare, in LAW AND SOCIAL ACTION:SELECTED ESSAYS OF ALEXANDER H. PEKELIS I (Milton R. Konvitz ed., 1950) (emphasizingconsequentialism in legal review); Ernest M. Jones, Law and Society: Impact Research and Soci-ology of Law: Some Tentative Proposals, 1966 Wis. L. REv. 331, 335 n.6 ("The ability to predictlegislative-policy impact with some degree of probability must emerge as the primary justification

of any research design." (quoting Robert C. Sorensen, Sociology's Potential Contribution to Leg-islative Policy Determination, 16 Am. Soc. REv. 239, 243 (1951)) (internal quotation marks omit-ted)).

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tant applications in people's lives. The term is not meant to suggest thatthe court should uphold only those laws that promote the best possibleconstitutional effects. 320 Nor does the emphasis on having the court assessthe consequences of challenged legislation or policies entail a mechanisticview of the relation between judicial decisionmaking and social change.321

For one can believe that there is no single "right" answer to complex socialproblems and still maintain that laws should be purposive in design.

By requiring the court to assess the likelihood that a challenged lawwill achieve a desired result, a consequentialist approach to judicial re-view raises what Robert H. Mnookin has elsewhere called "the predictionproblem" - the difficulty of knowing (as distinct from evaluating) the ef-fects, anticipated as well as unanticipated, of alternative approaches to aproblem. 322 The associated difficulty of boundary marking, or distin-guishing one law from another in a politically complex context, furthercomplicates judicial review, for it requires the court to focus its attentionon a component of a comprehensive issue, rather than develop an inte-grated approach.323 These difficulties, however, are not unique to welfareadjudication but rather pervade adjudication in general. Yet in a varietyof situations even federal courts incorporate consequentialism into theirdecisionmaking, as, for example, when the Supreme Court determineswhether stare decisis ought to bar the overruling of precedent 324 More-over, commentators increasingly emphasize the need for the Court to"pay[] greater attention to the likely consequences of its decisions and to

320 As a philosophical term, consequentialism refers to "those theories that assess the moral

value of actions according to the amount of 'good' (or 'bad') consequences that result from them."Christopher J. Peters, Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis,105 YALE L.J. 2031, 2041 (1996).

321 Cf. Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: SocialChoice Theory, Value Pluralism, and Democratic Politics, go COLUM. L. REV. 2121, 2143 (99o)(criticizing a view of consequentialism that defines choices "only in terms of the outcomes theygenerate" and noting that this "perspective excludes what might be called the expressive dimen-sion of choices, namely, the meanings that outcomes have as a result of having been chosen in dis-tinctive ways, in distinctive contexts, and for particular reasons"). This expressive dimension,however, may give undue emphasis to private, rather than public, concerns.

322 Robert H. Mnookin, The Enigma of Children's Interests, in THE INTEREST OF CHILDREN,

supra note 285, at 16.323 Frank I. Michelman identifies this difficulty as a problem of assessing the economic ration-

ality of legislation. He explains, "A measure viewed in isolation might seem utterly crazy, yet be-come quite understandable when one saw it as the political compensation paid to some group inreturn for its support on some other measure." Frank I. Michelman, Politics and Values or What'sReally Wrong With Rationality Review?, 13 CREIGHTON L. REV. 487, 499-500 (1979). InMichelman's view, "what marks off a legislative output as eligible for independent appraisal of itseconomic rationality is just that the legislature has been willing - by enacting it separately - tolet it stand or fall on its own merits." Id. at 5oo.

324 See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (considering "the consist-ency of overruling" Roe and emphasizing the need for "gaugfing] the respective costs of reaffirm-ing and overruling a prior case").

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the empirical assumptions underlying its doctrines. '3 25 Despite the diffi-culties, the state court - by initiating a process of discussion among af-fected actors - can help to facilitate provisional assessments of welfarepolicies and to foster coordinated responses. 326

D. Why Education and Not Welfare?32 7

Some observers of state constitutional law contend that state courtshave already developed independent standards of review for positive stateconstitutional provisions and are no longer content just to interpret themin the same manner as federal courts.328 In this regard, perhaps the mostnotable state constitutional developments have been in the area of schoolfinance, where state courts increasingly rely on a consequentialist ap-proach to review the sufficiency of public school systems under state edu-cation clauses.3 29 Most, if not all, of the institutional concerns that sup-posedly prevent judicial enforcement of state constitution welfare rightsapply in equal measure to state constitution educational cases. Indeed, asa basis for declining to locate a right to education in the Federal Constitu-tion, the Court drew an explicit analogy between education and welfare,but characterized the former as perhaps even the harder case. 330 This sec-tion briefly looks at the progress of public education reform in the statecourts, and then considers the lessons that are applicable to welfare en-forcement.

The earliest efforts at reforming the public schools through the judi-ciary occurred in the federal courts and focused on the dismantling of thede jure system of segregation that characterized our nation's schools well

325 Dorf, supra note 229, at 8; see David M. Trubek, Where the Action Is: Critical Legal Studies

and Empiricism, 36 STAN. L. REV. 575, 587 (1984) (noting "the pragmatic view that to speak of alegal rule in isolation, as opposed to in application, or as a factor in social relations, [is] to speaknonsense"); cf Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L.REV. 1, 5 (1997) (presenting a collaborative model of agency decisionmaking focusing on "adap-tive problem solving").

326 Robert W. Gordon has criticized certain uses of provisionalism for reflecting a form of res-ignation "that accepts at face value an idealized instrumental view of the role of law in society[.]"Robert W. Gordon, Historicism in Legal Scholarship, 90 YALE L. J. 1017, 1037 (I981). He callson scholars to try "something else" that would explicitly "incorporate the critics' perspective." Id.at 1037. The proposed standard attempts to meet this challenge.

327 Cf. Michelman, On Protecting the Poor, supra note 9, at 59 (asking "why education and notgolf?").

328 See, e.g., Kaye, Dawn of a New Century, supra note 52, at 12 ("[I]t is now clear that thepromise inherent in justice Brennan's challenge has made giant steps toward fulfillment.").

329 The sheer volume of litigation in this area is extraordinary; over twenty states have had at

least some segment of their public education systems overturned as a result of state court litiga-tion. See HERSHKOFF & LOFFREDO, supra note 15, at 301 n.,5 (noting cases that have invali-dated school finance systems on state constitutional grounds).

330 The Court explained: "Education, perhaps even more than welfare assistance, presents amyriad of 'intractable economic, social and even philosophical problems.' ... [W]ithin the limitsof rationality, 'the legislature's efforts to tackle the problems' should be entitled to respect." SanAntonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. I, 42 (,973) (quoting Dandridge v. Williams, 397U.S. 471, 487 (197o), and Jefferson v. Hackney, 4o6 U.S. 535, 546 (1972)).

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into the twentieth century.33' Later, beginning in the i96os, litigationshifted from a strategy based on race to one based on class, as part of abroader movement to reduce the significance of economic inequity inpublic life.332 These equality-based school finance lawsuits are said tohave faltered for reasons relating to doctrine, political theory, and strategy.First, the federal judiciary refused to recognize a fundamental right toeducation under the Fourteenth Amendment, thus rejecting plaintiff'sclaims in a garden-variety application of rationality review. 333 Second,courts considered equality to be an unmanageable engine of social change,to be avoided as a basis for judicial intervention in areas traditionally leftto local politics. 3 34 Third, equality provided an inherently weak strategyto improve educational quality, for it left intact the basic distribution ofpublic funds for education.3 35

A later generation of school reform lawsuits turned from equal protec-tion, whether under federal or state law, to state constitution educationclauses, 336 thereby expanding the focus from an emphasis on fiscal equityto a broader view of educational sufficiency.337 In this "new wave" ofschool reform cases,3 38 state courts explicitly attempt to construct a man-ageable definition of educational adequacy for constitutional purposes bygrappling with issues such as the public mission of public schools, the mo-

331 See JACK GREENBERG, CASES AND MATERIALS ON JUDICIAL PROCESS AND SOCIAL

CHANGE: CONSTITUTIONAL LITIGATION 1-120 (1977) (tracing federal court efforts to dismantlesegregation in higher education and public schools).

332 See Molly McUsic, The Use of Education Clauses in School Finance Reform Litigation, 28HARV. J. ON LEGIS. 307, 312-14 (iggi) (outlining changes in litigation strategy).

333 See Rodriguez, 411 U.S. at 54-55 (rejecting an equal protection challenge to the policies ofTexas public school system and refusing to find broad differentials in per-pupil expendituresamong the state's public school districts unconstitutional). Finding no fundamental right to edu-cation under the Fourteenth Amendment, the Court rebuffed the plaintiff's claim by applying"the traditional standard of review, which requires only that the State's system be shown to bearsome rational relationship to legitimate state purposes." Id. at 4o. The California Supreme Courthad earlier applied heightened scrutiny to a similar challenge under both the California and Fed-eral Constitutions. See Serrano v. Priest, 487 P.2d 1241, 1250 (Cal. 1971). The Supreme Court,however, has suggested that the decision to withhold absolutely educational services from a dis-tinct minority group would violate the Fourteenth Amendment. See Plyler v. Doe, 457 U.S. 202,

230 (1982).334 As the New Jersey Supreme Court explained in Robinson v. Cahill, 303 A.2d 273, 283 (NJ.

1973), equality is "unmanageable if it is called upon to supply categorical answers in the vast areaof human needs, choosing those which must be met and a single basis upon which the State mustact."335 See Martha I. Morgan, Adam S. Cohen & Helen Hershkoff, Establishing Education Pro-

gram Inadequacy: The Alabama Example, 28 U. MICH. J.L. REFORM 559, 560 (1995) ('Under anequity theory, a school system could be judged legally satisfactory even if students are receiving... the same poor education.").

336 See Betsy Levin, Current Trends in School Finance Reform Litigation: A Commentary, 1977DuKE L.J. io99, i099-iio0 (describing the shift in school finance litigation from a focus onequal protection to a focus on educational sufficiency).337 See id. at 1107.338 See Michael Heise, State Constitutions, School Finance Litigation, and the "Third Wave":

From Equity to Adequacy, 68 TEMP. L. REv. 1151, 1152-62 (1995).

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tivating aims of educational clauses, and the range of programs that seemconducive to carrying out these goals. 339 In doing so, judges have taken aconsequentialist approach to their decisionmaking; as the New Jersey Su-preme Court explained in the landmark Robinson decision,340 "the endproduct must be what the Constitution commands. '34

1

The judicial process of elaborating enforceable standards of educa-tional adequacy has been slow and incremental. The earliest state casesworked in the shadow of the Supreme Court's decision in San AntonioIndependent School District v. Rodriguez,342 which emphasized the im-pact of funding disparities on educational policy.343 State judges thuslooked almost exclusively to funding inputs (the level of state fundingprovided for public schools on a per capita basis) as the measure of educa-tional sufficiency. Over time - and in the best common law tradition -courts and litigants successfully expanded their definition of "input" bydeveloping more sophisticated perspectives on public schooling.344 Thelatest state cases, taking their cue from education research on effectiveschool practices, 345 have enlarged their focus to include educational out-puts and their relation to educational inputs, and emphasize the constitu-tional goal of providing programs that enable all of a state's children tolearn and to succeed. Recognizing that society's existing commitment

339 See generally William H. Clune, New Answers to Hard Questions Posed by Rodriguez: End-

ing the Separation of School Finance and Educational Policy by Bridging the Gap Between

Wrong and Remedy, 24 CONN. L. REV. 721, 722 (1992) (discussing flexible remedial approaches,derived from recent state cases, to the question of educational adequacy); James S. Liebman, Im-plementing Brown in the Nineties: Political Reconstruction, Liberal Recollection, and LitigativelyEnforced Legislative Reform, 76 VA. L. REV. 349, 428-35 (iggo) (defining sources for a judiciallyenforced approach to educational adequacy).

340 Robinson v. Cahill, 303 A.2d 273 (N.J. 1973).341 Id. at 294.342 411 U.S. 1 (1973).343 See id. at 4-9. See also Kenneth Fox, The Suspectness of Wealth: Another Look at State

Constitutional Adjudication of School Finance Inequalities, 26 CONN. L. REV. 1139, 1147 (094).344 Factors include the purpose of public schooling under specific state educational clauses; pro-

fessional standards, both national and regional, that define the constituent elements and goals ofeducation at different grade levels; and an explicit recognition of the need for evolution and flexi-bility in reforming any bureaucratic institution. See Julie K. Underwood, School Finance Ade-quacy as Vertical Equity, 28 U. MICH. J L. REFORM 493, 513-19 (1995) (tracing evolution of inputfactors in state constitution educational cases).345 See EFFECTIVE PROGRAMS FOR STUDENTS AT RISK viii (Robert E. Slavin, Nancy L. Kar-

weit & Nancy A. Madden eds., 1989) (presenting "the best available information on what isknown now about effective programs for students at risk of school failure, particularly those whoare currently served in compensatory and special education programs"); FOURTEENTH ANNUALYEARBOOK OF THE AMERICAN EDUCATION FINANCE ASSOCIATION, REFORMING EDUCATION:

THE EMERGING SYSTEMIC APPROACH (Stephen L. Jacobson & Robert Berne eds., 1993) (exam-ining school reform initiatives in the U.S. and abroad); GARY NATRIELLO, EDWARD L. MCDILL &AARON M. PALLAS, SCHOOLING DISADVANTAGED CHILDREN: RACING AGAINST CATASTROPHE

45-138 (I99o) (reviewing some positive consequences of educational and social programs designed

for disadvantaged children); Robert Berne, Preface to OUTCOME EQUITY IN EDUCATION xi(Robert Berne & Lawrence 0. Picuss eds., 1994) (collecting scholarly papers "to summarize exist-ing knowledge and [to] put forward recommendations to enable [New York] to define and imple-ment policies to achieve outcome equity").

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does not suffice to effectuate the constitutional purpose, these cases alsoconfront ways to expand public support for school reform. Enforcementof the judiciary's remedial decrees has not proved easy3 46 and has re-quired state courts to engage in a process of persuasion and coercion. 347

Progress reports suggest, however, that implementation, while arduous,has been somewhat effective in terms of improving educational conditionsand altering the terms of public discourse.3 43

Litigation in Alabama illustrates well the state court's new, consequen-tialist approach to state constitution educational questions. Harper v.Hunt349 involved the constitutionality of Alabama's public school systemunder its state constitution educational clause.350 In entering an order ofliability against the state, the state court first developed a normative base-line against which to assess educational sufficiency: nine capacities that allAlabama students must have to ensure an opportunity to achieve.351 Stateand national standards on inputs and outputs provided benchmarks inevaluating the constitutional right and the state system's current pro-grammatic content 352 Moreover, the state court interpreted the AlabamaConstitution to "impl[y] a continuing obligation to ensure compliance withevolving educational standards" by providing "an education that will infact benefit [students] by offering them appropriate preparation for the re-sponsible duties of life."353 The court did not specify how the nine capaci-ties that define educational adequacy were to be effectuated. Instead, thecourt articulated broad principles, directing the Alabama Board of Educa-

346 See Douglas S. Reed, The People v. the Court: School Finance Reform and the New Jersey

Supreme Court, 4 CORNELL J.L. & PUB. POL'Y, 137, 172 (1994) (discussing public opposition totax increases to pay for improved educational opportunities ordered by the New Jersey court).

347 See Margaret E. Goertz, Steady Work: The Courts and School Finance Reform in New Jer-sey, in STRATEGIES FOR SCHOOL EQUITY: CREATING PRODUCTIVE SCHOOLS IN A JUST SOCI-ETY 101, 101-13 (Marilyn J. Gittell ed., i998) [hereinafter STRATEGIES FOR SCHOOL EQUITY](tracing judicial enforcement of school reform measures in New Jersey).

348 See Interview with Steven R. Shapiro, ACLU Legal Director, & Christopher A. Hansen,ACLU Senior Counsel, in New York, N.Y. (Oct. 1998) (discussing the effect of school litigation inAlabama and Connecticut); see also HELEN HERSHKOFF & DAVID HOLLANDER, FORD FOUNDA-TION, U.S. Case Study, in GLOBAL LAW PROGRAM LEARNING INITIATIVE (forthcoming Nov.1999) (draft report on file with the author) (discussing the role of state court litigation in reformingeducation policy).

349 No. CV-91-oII7-R (Ala. Cir. Ct. Montgomery County 1993). Harper v. Hunt was consoli-dated with Alabama Coalition for Equity, Inc. v. Hunt. Alabama Coalition for Equity, Inc. v.Hunt, Nos. CV-9o-883-R, CV-9I-OII7 (Ala. Cir. Ct 1993), reprinted in Opinion of the Justices No.338, 624 So.2d 107 app. (Ala. 1993).

350 The clause provides that the legislature "shall establish, organize, and maintain a liberal systemof public schools throughout the state for the benefit of the children thereof between the ages of sevenand twenty-oneyears." ALA. CONST. art XIV, § 256.

351 See Alabama Coalition for Equity, Inc., 624 So.2d at i65-66.352 See Morgan, Cohen & Hershkoff, supra note 335, at 586-94 (discussing the role of bench-

marks in state constitutional interpretation of education rights).353 Alabama Coalitionfor Equity, Inc., 624 So.2d at 154.

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tion and the Legislature to develop programmatic policy,3 54 and appointeda facilitator to help develop information about workable approaches tocarry out the state constitutional mandate.35 5

The Alabama court, like other state courts addressing alleged viola-tions of state constitutional provisions, proceeded on the assumption thatit was establishing a structure for institutional reform, and not fixing theprecise content of such reform for all time. The remedial decree, for ex-ample, contemplated that the plaintiffs could return to court to adapt itsprovisions in light of circumstances, intended and otherwise, that devel-oped once the process at reform began. Moreover, the state court candidlyfaced the limits of its institutional competence while making innovativeuse of procedural devices - such as establishment of a facilitator's office- to gain access to multi-faceted information from government and pri-vate actors. The Harper case, like other school finance lawsuits, has notachieved immediate success, but social reform always involves a long andincremental process.

35 6

At some level, the lessons of these education cases should be transfer-able to the welfare context. Both education and welfare involve impor-tant, contested values that require a strong mix of institutions, programs,and funding to carry out explicit constitutional mandates.35 7 I believe thatalthough a genuine difference exists between the enforcement of educationand welfare rights, the difference is not one of institutional competence. Itis, instead, a political difference relating to theories about equality and thelimits of redistributionist aims in American society. Guaranteeing a publiceducation comports well with accepted ideas about equality of opportu-nity. Members of a society have a strong self-interest in supporting publicschools; the idea of a level playing field holds intuitive appeal.3 58 Welfarepayments, however, in this context seem to implicate the more controver-sial collectivist goal of achieving equality of resources. Because the idea ofpublic assistance is itself so politically charged, even when the legislaturevotes to provide benefits, the state court's remedial options seem limited in

354 See Helen Hershkoff, School Finance Reform and the Alabama Experience, in STRATEGIESFOR SCHOOL EQUITY, supra note 347, at 24, 24, 30.

355 See id. at 29.356 See, e.g., ARYEH NEIER, ONLY JUDGMENT: THE LIMITS OF LITIGATION IN SOCIAL

CHANGE (1982) (describing the slow and not always predictable trajectory of efforts to secure ju-dicially precipitated social reform); James B. Jacobs, Judicial Impact on Prison Reform, inPUNISHMENT AND SOCIAL CONTROL: ESSAYS IN HONOR OF SHELDON L. MESSINGER 63, 73

(Thomas G. Blomberg & Stanley Cohen eds., 1995) (recounting history of incremental changes inprison conditions and concluding "that judicial intervention in prisons has been the most signifi-cant vehicle of prison reform in the latter quarter of the twentieth century"); James S. Liebman,Desegregating Politics: "All-Out" Desegregation Explained, 90 COLUM. L. REV. 1463, r587-96(ggo) (discussing the "massive" and ongoing resistance to school desegregation that followedBrown).357 For examples of how courts outside the U.S. interpret and enforce positive rights, see Scott

& Macklem, cited in note 54, at 77-82, in which the authors discuss Canadian examples.358 See generally Amy Gutmann, DEMOCRATIC EDUCATION (1987).

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comparison to those that have been available in the public school cases.359

This political difference, however, makes collaboration between the courtand other branches more imperative, for the difference provides no legiti-mate reason to underenforce values to which the state constitution iscommitted.

E. Implications for Welfare Litigation

The implications of the proposed consequentialist approach for wel-fare rights enforcement can be seen in a series of examples that track thecurrent typology of Article XVII decisionmaking. Recall that Type-I casesrequire the state to provide assistance to individuals who are indigent asdefined by state positive law, even where the applicant cannot produce aspecific document as proof of need. Assume a state program that providesspecial assistance to battered women on the view that as a group theyhave greater economic needs.360 To avoid fraud, the state requires appli-cants to produce a court order of protection as proof of prior battery.Imagine an applicant who has been too frightened to file a police report orto seek help from a court, but who does seek medical attention and con-fides details of her domestic abuse to a nurse at a local emergency room.The woman applies for assistance and is denied benefits because she can-not document her eligibility through the standard mode of proof. Thissituation presents a classic 1pe-I claim, and the court should apply abright-line rule, requiring the state to provide assistance, as long as theapplication is corroborated by, for example, a letter or affidavit from theemergency-room nurse, even if not accompanied by the required order ofprotection. Arguably, the New York judiciary's approach to ITpe-Iclaims already goes this far, preventing the state from indirectly refusingaid to the needy through documentation requirements "having nothing todo with need. '"361

Type-II claims, which bar the state from picking and choosing fromamong categories of indigents, would involve different reasoning underthe proposed standard. Consider a state policy of giving transportationallowances to indigent children so that they can travel to and from publicschool. The state denies the allowance to a U.S.-born child because herparents are noncitizens. Under the Lee principle,362 the state has no dis-cretion to withhold assistance, for otherwise the child of noncitizen par-ents will have to "survive on lesser amounts than are granted to other

359 Cf. Robert C. Ellickson, The Untenable Case for an Unconditional Right to Shelter, 15HARV. J.L. & PUB. POL'Y 17, 31-32 (1992) (distinguishing between rights to shelter and to educa-tion).

360 Cf Jennifer M. Mason, Note, Buying Time for Survivors of Domestic Violence: A Proposalfor Implementing an Exception to Welfare Time Limits, 73 N.Y.U. L. REV. 621, 638-52 (1998) (ar-guing that states should create a welfare regime specially designed for survivors of domestic vio-lence).

361 Tucker v. Toia, 371 N.E.2d 449,452 (N.Y. 1977); see supra pp. 1147-48362 See supra pp. 1148-49.

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needy persons in the State."3,

3 The state cannot plausibly defend the ex-clusion in economic terms,364 and existing doctrine would forbid the dif-ferential treatment.

A more difficult Type-il claim would arise when the state excludes acategory of indigents from a public assistance program and plausibly de-scribes the exclusion as serving the constitutional goal of meeting theneeds of the poor. For example, assume a state program that imposes afive-year cap on welfare assistance, on the view that employable individu-als should not develop habits of welfare dependency. Under federal ra-tionality review, the state has almost absolute discretion to structure eligi-bility requirements. With a more rigorous form of means-end scrutiny,however, the reviewing court is required to take a closer look at the wel-fare exclusion and examine whether the means chosen to enforce ArticleXVII - an arbitrary cut-off after a fixed number of years - can be ex-pected to meet an indigent's legitimate need for public assistance undercurrent labor market conditions. 36s Hence, using the proposed standard,the court would carefully review the regulation at issue in Baie v. La-vine,366 which imposed an automatic, thirty-day suspension of welfarebenefits on a recipient who failed to attend a workfare interview, to de-termine whether the denial was in fact linked to a refusal to accept em-ployment. Under the facts presented, I suggest that the Baie plaintiffwould now prevail in her Article XVII claim.

Type-I claims involve the legislature's discretion to define the pack-age of assistance that the state provides to needy individuals. Assume thatthe state adopts a "tough love" approach to welfare and fixes family bene-fit levels at one-half of the federal poverty level of $15,600 for a family offour,367 subject to incremental percentage decreases in cash assistance foreach year on welfare. 368 The state defends the adequacy of its paymentstandard, first by citing its exclusive power to set the "manner and ...means"369 of public assistance, and second, by justifying the benefit levelas a way to encourage self-sufficiency 37 0 Federal rationality review wouldaccept this defense as a knock-down argument, effectively reducing Arti-cle XVII's mandate to a discretionary government function that can besatisfied through provision of a mere peppercorn of assistance. The pro-

363 Lee v. Smith, 373 N.E.2d 247, 252 (N.Y. 1977); see supra p. 1148.364 To the extent the provision is designed to discourage immigration to the U.S., the state is

legislating in an area in which the federal government has exclusive control. See HERSHKOFF &LOFFREDO, supra note 15, at 41 & n.224.

365 Cf Welfare Working Group, Review of the Pataki Welfare Plan, 52 REC. Ass'N B. 13, I8-I9

(1997) (examining the economic assumptions in the proposed plan to time-limit welfare in NewYork).

366 357 N.E.2d 349 (N.Y. 1976); see supra pp. 1148-49.367 See HERSHKOFF & LOFFREDO, supra note 15, at i (describing generally the federal poverty

index).368 See Welfare Working Group, supra note 365, at 20-21.369 N.Y. CONST. art. XVII, § i.370 See Welfare Working Group, supra note 365, at 15, 22.

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posed standard, by contrast, demands that the court make a more criticalexamination of the means-end nexus, by undertaking an empirical analy-sis of the law's substantive sufficiency.

In our hypothetical 'Tyrpe-mII claim, the court would presumably look,in part, to professional benchmarks involving minimum cost-of-livingstandards to determine the adequacy of the proposed benefit levels.3 7 1

Indeed, the court can contribute to the evolution of these benchmarks byexamining successful or model practices in other states or abroad, to theextent that they inform the situation at hand. Analogies can also bedrawn to other substantive cases dealing with the cost of raising a family:child support orders require courts to determine how much it takes toraise a child within the financial framework of an individual family;3 72

wrongful death awards require human life to be valued in terms of lostwages, family roles, and other factors; 373 and statutory challenges to wel-fare payments require a court to assess the validity of a state's standard ofneed against economic measures of well-being.3 74 Other sources can befound in the Bureau of Labor Standards and federal research on the pov-erty standard. These standards are not "professional" in a scientific sense,because "the drawing of poverty lines [is] a social process - not merely a

371 See, e.g., General Accounting Office, Consumer Price Index: Cost-of-Living Concepts and

the Medical Care Components (1996); CAROLYN S. EDWARDS, U.S. DEP'T OF AGRIC., MISC. PUB.No. 1411, USDA ESTIMATES OF THE COST OF RAISING A CHILD: A GUmE TO THEIR USE ANDINTERPRETATION (i98I) (assessing the average cost of raising a child in the U.S. as of 198o);A.A.M.F. STAATSEN, GENERAL ASSISTANCE IN THE NETHERLANDS, DISCRETIONARY JUSTICEIN EUROPE AND AMERICA 133 (Kenneth Culp Davis ed., 1976) (calculating the "necessary cost ofliving" under a Netherlands assistance statute). For a collection of domestic and internationalbenchmarks, refer to Cass R. Sunstein, Well-Being and the State, 107 HARv. L. REV. 1303 (1994).See generally Alicia Ely Yamin, Reflections on Defining, Understanding, and Measuring Povertyin Terms of Violations of Economic and Social Rights Under International Law, 4 GEO. J. ONFIGHTING POVERTY 273 (1997) (discussing different approaches to measuring poverty in the con-text of international human rights).

372 See Nan D. Hunter, Women and Child Support, in FAMILIES, POUTICS, AND PuLCPOLICY: A FEMINIST DIALOGUE ON WOMEN AND THE STATE 203-15 (1983) (discussing the de-termination and adequacy of child support levels). Child support enforcement guidelines, de-veloped in response to the federal child support guideline mandate, seek to achieve economic par-ity between custodial and noncustodial parents and are pegged to a percentage of parentalincome.

373 See Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, 23 HOFSTRA L.REV. 763, 763 (i995) (criticizing the lack of benchmarks); James Ciecka & Seth Epstein, A Com-ment on the Use of Value of Life Estimates in Wrongful Death Litigation, 5 J. LEGAL ECON. 75,78-79 (1995) (noting the effect on wrongful death awards of the victim's wealth and earningpower); Mark Geistfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries De-termine Damages for Nonmonetary Injuries, 83 CAL. L. REV. 773, 780 (1995) (proposing an exante perspective to guide a jury in the absence of a well-defined legal standard).

374 See, e.g., Jiggetts v. Grinker, 553 N.E.2d 570, 575 (N.Y. 199o) (holding that New York wel-fare payment for rent must be "adequate" under statutory law); see also Nancy Morawetz, WelfareLitigation to Prevent Homelessness, x6 N.Y.U. REV. L. & SoC. CHANGE 565, 568-71 (1987) (de-scribing state standards of benefit adequacy); Kurt Emhoff, Note, Jiggetts v. Grinker: Does It Es-tablish a Right to "Adequate Shelter Allowance" in New York State?, 3 CARDOZO WOMEN'S L.J.97, 102 (1996) (discussing a statutory obligation to provide adequate shelter allowances).

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technical economic exercise. '375 These standards do, however, providebenchmarks as a source of guidance for the court and the legislature intheir elaboration of program and policy. In this process, the court candraw together the social knowledge that lays dormant in the poor them-selves - offering a forum for their insights and drawing the legislature'sattention to their views. And, finally, it can uncover the assumptionsmade about poverty and the poor and subject those assumptions to closerexamination in light of state constitutional commitments.

rv. CONCLUSION

As states begin to administer their welfare block grants,376 advocatesmay turn to state courts for interpretation of state constitutional welfareprovisions.37 7 The standard of review that state courts use in these casescould have a constitutive effect on public policy, profoundly affecting theshape of welfare reform for the next generation. State courts have facedconsiderable barriers, however, in developing a principled approach tostate constitutional interpretation. 378 As an academic field, state constitu-tionalism is still in a state of infancy,379 and has not yet fully developed theinterpretive material needed for what Burt Neuborne calls "a successfuladjudicative enterprise."380 More importantly, state constitutionalism re-mains intellectually isolated from a great deal of public law scholarship.381

Constitutional law courses at U.S. law schools not only ignore state consti-

375 Gordon M. Fisher, U.S. Census Bureau, From Hunter to Orshansky: An Overview of (Unof-ficial) Poverty Lines in the United States from 1904 to 1965 (1993), available at U.S. Census Bu-reau Poverty Measurement Working Papers (last modified February 3, 1999) <http://www.cen-sus.govlhhes/poverty/povmeas/paperslhstorsp4.html>.

376 See supra notes 242-243 and accompanying text.377 See Paul W. Kahn, State Constitutionalism and the Problems of Fairness, 30 VAL. U. L.

REV. 459, 465 (1996) (predicting state constitutional challenges to new welfare programs); cf Nel-son, supra note 312, at 295-97 (discussing welfare reform and erosion of federal constitutional pro-tection).

378 See Joseph R. Grodin, State Constitutionalism in Practice, 30 VAL. U. L. REV. 6oi, 6o6(1996) (reviewing A REVIEW OF INTELLECT AND CRAFT: THE CONTRIBUTIONS OF JUSTICE

HANS LINDE TO AMERICAN CONSTITUTIONALISM (Robert F. Nagel ed., 1995)) (describing diffi-culties in developing independent state constitutional arguments). But see G. Alan Tarr & RobertF. Williams, Foreword: Western State Constitutions in the American Constitutional Tradition, 28

N.M. L. REV. 191, 192 (1998) (contending that "the best current research on state constitutional-ism reveals that the field has been transformed").

379 See Bierman, supra note 49, at 1404 (observing that "only in the last half of the twentiethcentury has significant attention been paid to the state constitutional phenomenon").

380 Burt Neuborne, A Brief Response to Failed Discourse, 24 RUTGERS L.J. 971, 972 (1993).381 Cf. Kahn, supra note 377, at 459 ("State constitutionalism has always seemed a poor step-

sister to federal constitutionalism.").

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1999] POSITIVE RIGHTS AND STATE CONSTITUTIONS "I95

tutions,38 2 but also more generally avoid any comparative approach.383

Constitutional theorists are as unlikely to consider the Utah Constitutionas they are the Swiss constitution.3 84 This scholarly gap reflects an intel-lectual bias: the tendency to conflate questions of how a civil society canand should constitute itself with the more specific question of how theFederal Constitution does and should resolve this problem. 385 State con-stitutions that deviate from the federal model, because they are longer,more detailed, or concerned with such matters as local government 3 6 ordirect democracy,387 are often dismissed in the literature (if mentioned atall) as nonconstitutional.388 State constitutions indeed contain a number

382 See Linde, supra note 138, at 933 (noting that the "[gleneral constitutional law courses,

which everyone takes, create the impression that contemporary majority opinions and dissents inthe United States Supreme Court exhaust the terms as well as the agenda of constitutional litiga-tion").

393 Cf. Donald C. Wintersheimer, Relationship Between Federal and State Constitutional Law,25 N. Ky. L. REV. 257, 257 (i998) (observing that "the primary focus of constitutional law in theUnited States has been the Federal Constitution and its judicial interpretations"). But see, e.g.,David A.J. Richards, Comparative Revolutionary Constitutionalism: A Research Agenda for Com-parative Law, 26 N.Y.U. J. INT'L L. & POL. I, 2-3 (1993) (introducing the perspective of "com-parative revolutionary constitutionalism" to "American constitutionalism").

384 See J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, iii HARV. L.REv. 964, 1-04 (1998) (discussing the absence of comparative materials from the standard peda-gogic canon of constitutional law); Lawrence Lessig, The Limits of Lieber, 16 CARDOZO L. REv.

2249, 2253 (1995) (discussing the perceived irrelevance of "cross-national constitutional experi-ence" to U.S. constitutional thinkers). Bruce Ackerman notes the "emphatic provincialism" offederal constitutional practice and theory: "[tihe standard judge or lawyer would hardly raise aneyebrow when told, for example, that existing American law on capital punishment or welfarerights offends basic constitutional principles as the rest of the civilized world has come to under-stand them." Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L. REV. 771, 773(1997). For a counterexample, see Gerald L. Neuman, Casey in the Mirror: Abortion, Abuse andthe Right to Protection in the United States and Germany, 43 AM. J. CoMP. L. 273 (1995), inwhich the author compares German and U.S. federal constitutional approaches to a positive rightto protection against harm.

395 See James A. Gardner, The Positivist Revolution That Wasn't: Constitutional Universalismin the States, 4 ROGER WILLIAMS U. L. REv. io9, I1o (i998) (referring to "a long, powerful tradi-tion on the state level of constitutional universalism - the belief that all American constitutionsare drawn from the same set of universal principles of justice and good government"). But cfW.F. Dodd, The Problem of State Constitutional Construction, 20 COLUM. L. REV. 635, 645 (1920)

(using the general term "constitutional provisions" to refer specifically to state, and not federal,constitutions).

386 See, e.g., Richard Briffault, Local Government and the New York State Constitution, iHOFSTRA L. & POL'Y SYMP. 79, 82-83 (1996).

387 See, e.g., James M. Fischer, Ballot Propositions: The Challenge of Direct Democracy to StateConstitutional Jurisprudence, ri HASTINGS CONST. L.Q. 43 (1983).388 See Tarr, supra note 12, at 2 (observing that "to those enamored of the federal model, most

state constitutions appear decidedly 'nonconstitutional'"). In 1893, Lord Bryce criticized stateconstitutions for including "a great deal of matter which is in no distinctive sense constitutionallaw but general law,... matter therefore which seems out of place in a constitution because it isbetter fit to be dealt with in ordinary statutes." I LORD BRYCE, THE AMERICAN COMMON-WEALTH 443 (3d ed. 1895); see Gardner, supra note 49, at 829-2o (referring to state constitutionalprovisions involving corporations, interest rates, prisons, and bingo as embracing "concerns en-tirely absent from the U.S. Constitution that are handled on the federal level exclusively as legis-lative matters" and dismissing those provisions as the result of "a frivolous people who are unable


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of provisions - relating to public obligation,389 private autonomy,3 90 andgovernment ordering 39 1 - that are wholly outside the Federal Constitu-tion. Such provisions, I suggest, should not be viewed as merely thickerelaborations of a national norm;392 to the contrary, they may potentiallyconstitute democratic arrangements that "contest the meaning of Ameri-can political life" as the Federal Constitution defines itA93 This Articleprovides an independent framework that allows state courts to act withgreater fidelity to these alternative state constitutional norms.

to distinguish between things that are truly important and things that are not'; James A.Gardner, What Is a State Constitution?, 24 RUTGERS L.J. 1025, 1026 (1993) ("[S]tate constitu-tions, to put it bluntly, are not 'constitutions' as we understand the term.'); Daniel R. Gordon,Protecting Against the State Constitutional Law Junkyard: Proposals to Limit Popular Constitu-tional Revision in Florida, 20 NOVA L. REV. 413, 420 (1995) (arguing that "a state constitutionshould reflect the core of state government avoiding what would reasonably be considered legisla-tive matters"); Pope, supra note 156, at 985 (stating that "the problem with state constitutionalismis ... that state constitutions just aren't all that constitutional").389 For example, every state constitution obligates the state government to establish a system of

free public education. See Robert M. Jensen, Advancing Education Through Education Clausesof State Constitutions, 1997 BYU EDUC. & L.J. I, 3.

390 For example, some state constitutions authorize judicial enforcement of constitutional normsagainst private actors. See Helen Hershkoff, State Constitutions: A National Perspective, 3WIDENER J. PUB. L. 7, 20-21 (1993) (discussing the state action doctrine under state constitu-tions). But see Kevin Cole, Federal and State "State Action". The Undercritical Embrace of aHypercriticized Doctrine, 24 GA. L. REV. 327, 329 (199o) (contending that "state courts, with fewexceptions, have embraced the state action requirement as a limitation on the reach of state con-stitutional provisions").

391 Some state constitutions permit legislators to perform administrative functions. See Devlin,supra note 262, at 1250 (discussing different models whereby legislators perform administrativefunctions).

392 See Gardner, What Is a State Constitution?, supra note 388, at 1042; Paul W. Kahn, Inter-pretation and Authority in State Constitutionalism, io6 HARv. L. REV. 1147, 1148, 1159 (1993)(characterizing state constitutionalism as "unique interpretation of that common object" which is"American constitutionalism"); cf MICHAEL WALZER, THICK AND THIN: MORAL ARGUMENT ATHOME AND ABROAD 16-17 (1994) (distinguishing between "minimal morality" and "thickly con-ceived values").393 Paul W. Kahn, Two Communities: Professional and Political, 24 RUTGERS L.J. 957, 969

(1993); cf ROBERTO MANGABEIRA UNGER, FALSE NECESSITY: ANTI-NECESSITARIAN SOCIALTHEORY IN THE SERVICE OF RADICAL DEMOCRACY 1 (1987) (describing individuals as "context-revising agents").

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