Justice Douglas on Freedom in the Welfare State: Constitutional Rights in the Public Sector [Part 1]

Twenty-five years, in constitutional law, is a long enough span that at its end a generation is apt to confront the problems created by its solutions to the tasks it inherited at the beginning. In the years before Mr. Justice Douglas took his seat on the Supreme Court in 1939, the attention of the whole nation had been held by an epic of constitutional history—the decision whether American government had the constitutional power to cope with the economic and social crisis of a breakdown in the private economy. In 1937, the Supreme Court had unlocked the federal arsenal. The previous year, in the very course of striking down the first AAA, the Court had given its blessing to a broad, Hamiltonian reading of the spending power, and it had repulsed an attack on the TVA. It looked as if with the opening page of the 301st volume of its Reports, the Court was turning over a new leaf: the commerce clause was held to support regulation of labor relations in industrial production; and an ingenious use of taxes, credits, and payments permitted the nation to place its financial credit rather than that of near-bankrupt and mutually competitive states behind unemployment and retirement benefits through the Social Security Act. The Federal government was not again to be held to lack the tools for an economic task

Schwartz: Rights of the Person

A Review of Rights of the Person by Bernard Schwart

Constitutional Rights in the Public Sector: Justice Douglas on Liberty in the Welfare State

Although the needs of the national economy and national security have vastly expanded the public sector, it is the direct underwriting of individual living standards and social services that characterizes the welfare state. Inevitably, conflicts between the views and objectives of the welfare state\u27s political management and the views of some claimants to welfare state benefits have put in issue the constitutional limitations on the power to deny, withdraw, or condition such benefits. And inevitably, the cry of constitutional rights in public programs has been countered with the cry of privilege. The arguments were already familiar when Mr. Justice Douglas joined the Court. But the growth of the welfare state since 1939 and the political pressures to exclude the unworthy from its earthly paradise have given the issue greater modern importance

Selecting Oregon’s Judges

The cause of reform in the name of “judicial independence” found its Paul Revere in the retired Justice Sandra Day O’Connor, who has rung the tocsin from Washington’s Georgetown University in the East to Washington’s Seattle University in the Pacific Northwest, where she gave the keynote address at a conference on state judicial independence. I participated in the Seattle conference, as well as another conference soon thereafter in Salem, Oregon, in celebration of the Oregon Supreme Court’s 150th anniversary. These were lively discussions before public audiences rather than presentations of scholarly papers (of which there have been many in recent years). These pages summarize a few personal observations on the topic of redesigning state judicial selection. They reflect experience with only Oregon’s courts

First Things First: Rediscovering the States\u27 Bills of Rights

The first annual Judge Irving A. Levine Memorial program was held on May 16, 1979, in College Park, Maryland. The topic of the program was States\u27 Bills of Rights. Justice Linde\u27s speech, set forth below, addressed the failure of state] courts and lawyers to decide questions of constitutional rights under their own state constitutions when state law protects the interest at stake. Justice Linde suggests that a st ate court confronted with a constitutional question should always examine its state constitution before looking to the Federal Constitution.