The article argues that the non-existence of welfare rights in American Constitutional law, and the non-existence of a widely shared sense of moral obligation to attend to poverty through the use of law, cannot be explained by reference to the Constitutional text or history. Rather, it is a function of the over-identification of ordinary morality with Constitutionalism, of the Constitution with law, and of law, with adjudicative law—what the article calls "the legal question doctrine." As courts cannot, will not, and possibly should not enforce "welfare rights," as a matter of adjudicated Constitutional law, so, we conclude, neither the Constitution, nor Constitutional law, nor Constitutional morality suggest the existence of such rights. But, the article argues, all of these definitional equivalencies are unfounded. Larry Kramer's important book makes the historical argument that this configuration—the legal question doctrine—was not always a part of the understanding of Constitutionalism. The article concludes that a recognition the possibility of Constitutional and moral rights of welfare, and duties to provide it, in the face of adjudicative reluctance to do so, will require a major reorientation of our understanding of Constitutional jurisprudence—the meaning of law and the nature of legal obligation—as well as a re-thinking of our Constitutional history.
Katrina, the Constitution, and the Legal Question Doctrine,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss3/20