Susan Bandes, a strong proponent of the theory that positive rights are encompassed by the Constitution, nevertheless dismisses arguments for a constitutionally mandated minimum subsistence as "utopian." A brief critique of Erwin Chemerinsky's "Making the Case for a Constitutional Right to Minimum Entitlements" may tell us why.
Professor Chemerinsky sets a somewhat modest goal for his article. He seeks to delineate what he believes to be the main steps in the development of a viable argument in support of a constitutional right to minimum entitlements.' He does this provocatively, summarizing and invoking, although not going far beyond, the relatively small body of literature contending that the Constitution provides such protections.
Yet, his sketchy and rough-hewn article, which resembles a law office memorandum on case strategy, shows that he does far more. He argues candidly that the Supreme Court should create a constitutional right to "(minimum government services" or "resources for survival" or "a livelihood."' Indeed, he at least intimates that,*with the retirement or death of the Reagan and Bush Justices, a future Court might well employ such an approach to effect a solution to the serious national problem of poverty.
I agree with Chemerinsky that legitimating such roles for the Court and the Constitution will be "difficult and time-consuming . . . ." But I would also add "and probably impossible." And, with one significant reservation, I find such an undertaking inadvisable.
It must already be obvious that Professor Chemerinsky and I differ substantially in our conceptions of the Court's and the Constitution's natures and functions. Perhaps this divergence might best be illuminated by our respective treatments of two questions: Do the federal government and the states have a moral duty to ameliorate, to a very large degree, the conditions of the poor? And, if so, should the Supreme Court attempt to compel them to do so by articulating a positive constitutional right to basic subsistence? In addressing these questions, I. will rely considerably upon Justice Benjamin Nathan Cardozo's method of social engineering as well as my conceptualization of the characteristics of civil rights and liberties.
Dennis D. Dorin, Utopian Dangers: Chemerinsky's "Right to Minimum Subsistence", 44 Mercer L. Rev. 553 (1993).