Commentary: The Impossibility of Finding Welfare Rights in the Constitution

Abstract

There is a certain difficulty today –one, I think, of communication. Professor Michelman and I tend to operate in different universes of constitutional discourse. His universe is somewhat more abstract and philosophical than mine, and considerably more egalitarian, in keeping with the Zeitgeist. I would claim, although I think Professor Michelman would deny it, that the argument for welfare rights is unconnected with either the Constitution or its history. The welfare-rights theory, therefore, offers inadequate guidelines and so requires political decisionmaking by the judiciary. If that is not true—if there are criteria other than social and political sympathies—I certainly do not see the legal sources from which Professor Michelman’s form of constitutional argumentation arises.