When first asked to be on the Poverty Law Section's panel on a constitutional right to minimum entitlements, I was flattered but somewhat surprised at the choice of topic. Although the plight of the poor is obviously a serious and growing national disgrace, there is little likelihood that the United States Supreme Court will provide a solution. The current Court is extremely conservative and, with four conservative Justices under age fifty-five, likely will remain that way for decades to come. There is more chance that I will become the starting center for the Los Angeles Lakers (I am five foot seven and very uncoordinated) than that the Court will create a constitutional right to minimum entitlements.
Yet, the more I thought about the topic, the more I realized that this is exactly the time when it is essential that we begin considering a constitutional right to minimum government services. The case for such a right is difficult to establish; it is counter to traditional constitutional doctrine and philosophy. The idea of a constitutional right to livelihood runs against deeply embedded social attitudes. However, some prominent scholars such as Charles Black, Peter Edelman, and Frank Michelman, already have begun to advance arguments for such rights.' Those, like me, who believe in a constitutional right to minimum subsistence must build on their writings to make the case for such entitlements. ...
My goal in this paper is to identify the steps in an argument for a constitutional right to minimum entitlements.'My objective is not to fully make the argument for these rights. Such an elaboration would take far more space than is available here. In fact, an underlying theme of this article is that making the case will be a difficult and time-consuming enterprise. Thus, my task here is to outline what needs to be established to make the case for such constitutional rights. I also identify some of the problems that must be considered in each step of the analysis.
Specifically, I believe that there are seven steps to making the case for a constitutional right to basic subsistence. (1) Poverty and the plight of the poor are serious social problems. (2) The government has a responsibility to provide individuals with the essentials that are necessary for survival. (3) The government can successfully provide people with what is needed for subsistence. (4) Voluntary government programs will be inherently inadequate. (5) The Constitution creates affirmative government duties; the Constitution is not just a charter of negative liberties. (6) Included among the affirmative duties that should be found in the Constitution is the right to basic subsistence: food, shelter, and medical care. (7) It is the judicial role to declare and enforce such rights.
The ultimate task is to make persuasive arguments in support of each of these steps. My goal is to discuss, step-by-step, what that likely will entail.
Erwin Chemerinsky, Making the Case for a Constitutional Right to Minimum Entitlements, 44 Mercer L. Rev. 525 (1993).