Welfare and the Constitution

Chapter 1
INTRODUCTION
EVERY STATE A WELFARE STATE
THIS BOOK examines the constitutional dimensions of the welfare debate in America. The precise shape of state-facilitated welfare here and elsewhere will depend on results of policy experiments either under way or anticipated and on the contest among philosophic frameworks for describing those results. Because I share to some limited extent the conventional view that constitutional questions differ from policy questions, this book proposes few specific policies in the Constitution's name. But I shall emphasize here what I have argued elsewhere: the American Constitution makes sense (and originally made sense) only in light of general substantive ends like national security, freedom of conscience, domestic tranquility, and the people's economic well-being. For this reason, fidelity to the American Constitution entails a concern for more than negative constitutional rights, constitutional procedures, and institutional forms; it also entails a concern for what James Madison called "the solid happiness of the people." And this must be the chief concern--the end to which all other concerns must bend. As Madison reminded critics who saw the ratification debate as a contest between confederated and unitary or "consolidated" forms of government, the American Revolution teaches that "the real welfare of the great body of the people is the supreme object to be pursued; and . . . no form of Government whatever, has any other value, than as it may be fitted for the attainment of this object."1
I try here to defend Madison's statement about the end of government and to show what it imports for the basic normative nature of the American Constitution, for the cultivation and maintenance of a people that appreciates such a constitution as its own, and for constitutional theory as a field of academic inquiry. I try to persuade constitutional theorists to take the Constitution's Preamble seriously and turn to the hard philosophic and scientific work of formulating a forthrightly substantive theory of "the general Welfare." I contend against scholars who argue on multiple philosophic grounds against the possibility of such a theory. I show that the Constitution itself presupposes such a theory and implies guidelines for developing it. I derive these guidelines from the constitutional text and then use them to formulate a working theory of the general welfare, which theory I submit to the debate about the substance of the nation's values and character. According to this working theory, the Constitution not only permits but under some social conditions can even require such benefits as Social Security pensions for the aged and disabled, Medicaid for the poor, the late Aid to Families with Dependent Children (AFDC), and, above all, a liberal or self-critically secular education at public expense for the children of all who want it.
I also argue that because enforcing many such state duties falls more to the taxpaying electorate than to the judiciary, declining public sympathy for the poor (and other developments, like religious-based hostility to the public schools as fonts of secular reasonableness) indicates that the authors of The Federalist erred in thinking they could maintain the Constitution by relying mostly, if not exclusively, on what they called "the private interest of every individual" to be "a centinel over the public rights" (51:349). They erred in thinking they could avoid active governmental efforts to foster a citizenry whose members were at once personally responsible and public-spirited. By book's end I hope to persuade the reader that the debate over welfare for the poor is really a debate about constitutional and even cultural reform, a debate about the meaning of "responsibility" and the character and true well-being not just of the poor but of the nation as a cultural whole.
Following my discussion later in this introductory chapter about matters of terminology and argumentative strategy, my first step is to describe the basic normative properties of the American Constitution as a legal document. I contend in chapter 2 that the Constitution is more a charter of positive benefits--a positive or welfarist constitution, if you will--than a charter of negative liberties and that a central question for constitutional theory is not whether state-facilitated welfare but what state-facilitated welfare and for whom. Answering this question involves issues with philosophic and scientific dimensions, like the best conceptions of personal and national well-being both in theory and reasonably within the nation's aspirations. This book would persuade constitutional theorists to do what they can to help answer this complex of questions and to publicize its importance for the social sciences and the humanities generally.