Erwin Chemerinsky puts forth the unlikely proposition that now is the time to develop a revitalized argument for a constitutional right to subsistence- level entitlements. While not detailing the actual content of such an argument, he outlines what he believes to be the necessary steps of the argument, leaving for another day the task of actually defining and defending those steps. In Chemerinsky's view, the argument would entail recognition that (i) [p]overty and the plight of the poor are serious social problems; (ii) the government has a responsibility to provide individuals with the essentials that are necessary for survival; (iii) the government can successfully provide people with what is needed for subsistence; (iv) voluntary government programs will be inherently inadequate; (v) the Constitution creates affirmative government duties; (vi) food, shelter, and medical care are among those duties which government is obligated to provide; and (vii) it is the judicial role to declare and enforce such rights.
Chemerinsky's paper is difficult for me to respond to because I endorse his goal of alleviating the desperate situation of poor people in the United States. Nevertheless, I am troubled by the manner in which he purports to go about the task he has set. How one describes "the poor" and their situation, and constructs solutions to that situation, inevitably privileges certain conceptions of the world over others, and I am not sure that Chemerinsky's conceptions are ones that I want to live with.
Chemerinsky argues that, despite the antipathy of the current Supreme Court to individual rights claims, legal scholars ought to be elaborating the empirical and theoretical premises for a constitutional argument for minimum entitlements in millennial anticipation of a more compassionate (read liberal) Supreme Court.8 This bothers me in several respects. First, it puts legal scholarship at center stage in the battle to improve the social situation of poor people, which may not be to their advantage. Second, Chemerinsky's argument threatens to eclipse the very people he proposes to help, abstracting them and their humanity out of existence. Finally, Chemerinsky's argument betrays a deep disconnection between legal academics and the lives of other Americans.
Frederick Mark Gedicks, The Poverty of Academic Rhetoric, 44 Mercer L. Rev. 543 (1993).