Welfare And The Constitution

Welfare and the Constitution defends a largely forgotten understanding of the U.S. Constitution: the positive or "welfarist" view of Abraham Lincoln and the Federalist Papers. Sotirios Barber challenges conventional scholarship by arguing that the government has a constitutional duty to pursue the well-being of all the people. He shows that James Madison was right in saying that the "real welfare" of the people must be the "supreme object" of constitutional government. With conceptual rigor set in fluid prose, Barber opposes the shared view of America's Right and Left: that the federal constitutional duties of public officials are limited to respecting negative liberties and maintaining processes of democratic choice. Barber contends that no historical, scientific, moral, or metaethical argument can favor today's negative constitutionalism over Madison's positive understanding. He urges scholars to develop a substantive account of constitutional ends for use in critiquing Supreme Court decisions, the policies of elected officials, and the attitudes of the larger public. He defends the philosophical possibility of such theories while also offering a theory of his own as a starting point for the discussion the book will provoke. This theory holds, for example, that voucher schemes which drain resources from secular public schools to schools that would train citizens to submit to religious authority are unconstitutional; First Amendment issues aside, such schemes defeat what is undeniably an element of the "real welfare" of the people, individually and collectively: the capacity to think critically for oneself.

The U.S. Constitution calls on the government to "promote the general welfare." In this provocative and innovative book, a distinguished roster of political scientists and economists evaluates its ability to carry out this task. The first section of the book analyzes government performance in the areas of health, transportation, housing, and education, suggesting why suboptimal policies often prevail. The second set of chapters examines two novel and sometimes controversial tools that can be used to improve policy design: information markets and laboratory experiments. Finally, the third part of the book asks how three key institutions—Congress, the party system, and federalism—affect government's ability to solve important social problems. These chapters also raise the disturbing possibility that recent political developments have contributed to a decline in governmental problem-solving activity. Taken together, the essays in this volume suggest that opportunities to promote the common good are frequently missed in modern American government. But the book also carries a more hopeful message. By identifying possible solutions to the problems created by weak incentives, poor information, and inadequate institutional capacity, Promoting the General Welfare shows how government performance can be improved. Contributors include Eugene Bardach (University of California-Berkeley), Sarah Binder (Brookings Institution and George Washington University), Morris P. Fiorina (Stanford University), Jay P. Greene (University of Arkansas), Robin Hanson (George Mason University), Charles A. Holt (University of Virginia), David R. Mayhew (Yale University), Edgar O. Olsen (University of Virginia), Mark Carl Rom (Georgetown University), Roberta Romano (Yale Law School), William M. Shobe (University of Virginia), Angela M. Smith (University of Virginia), Aidan R. Vining (Simon Fraser University), David L. Weimer (University of Wisconsin-Madison), and Clifford Winston (Brookings Institution).

Traces the course of the constitutional controversy over the spending power and the role of that power in driving an expansion in federal activity and authority from 1787 forward.

The welfare state rests on the assumption that people have rights to food, shelter, health care, retirement income, and other goods provided by the government. David Kelley examines the historical origins of that assumption, and the rationale used to support it today.

Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.