Selinger, Carl M.

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Volume 94 | Issue 1 Article 6September 1991Equal Protection and Minimum Social Benefits: AnAddendum to Professor West's Abolitionist TheoryCarl M. SelingerWest Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Civil Rights and Discrimination CommonsThis Article is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted forinclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationCarl M. Selinger, Equal Protection and Minimum Social Benefits: An Addendum to Professor West's Abolitionist Theory, 94 W. Va. L. Rev.(1991).Available at: https://researchrepository.wvu.edu/wvlr/vol94/iss1/6EQUAL PROTECTION AND MINIMUM SOCIALBENEFITS: AN ADDENDUM TO PROFESSORWEST'S ABOLITIONIST THEORYCARL M. SELINGER*Back in 1953, when I was an undergraduate at Berkeley, I re-ceived one day a compliment that I hope I still deserve. ProfessorJacobus tenBroek had just "proven" Socratically to our (pre-Brownv. Board of Education) class on the equal protection clause that oneshould willingly acquiesce in being made a slave as long as the systemis colorblind (Robin West's test case for a merely formalist theoryof equal protection') and was adopted by a democratic majority.When I alone timorously registered an objection, he turned his sight-less but insightful eyes in my direction and roared approvingly,"Selinger, you would have been an abolitionist!" - and that fromthe author of The Antislavery Origins of the Fourteenth Amend-ment.2As a student, and then briefly a faculty colleague of that seminalscholar,3 peerless teacher of a generation of future lawyers, and pas-sionate champion of the rights of the poor,4 minorities 5 and thedisabled 6 I am sure that Jacobus tenBroek would have been pleased* Professor of Law, West Virginia University College of Law; A.B. 1955, University of Cal-ifornia at Berkeley; J.D. 1958, Harvard University.1. Robin West, Toward an Abolitionist Interpretation of the Fourteenth Amendment, 94 W.VA. L. REv. 111, 134-35 (1991).2. JACOBUS TENBROEK, Tim ANTISLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT (1951).3. See, e.g., Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37CAL. L. REv. 341 (1949).4. See, e.g., THE LAw OF THE POOR (Jacobus tenBroek ed., 1966); Jacobus tenBroek, Cali-fornia's Dual System of Family Law: Its Origin, Development, and Present Status (pts. 1-3), 16 STAN.L. REV. 257, 900 (1964), 17 STAN. L. Rv. 614 (1965); Jacobus tenBroek, California's Welfare Law-Origins and Development, 45 CAL. L. REV. 241 (1957).5. See, e.g., JACOBUS TENBROEK, ET AL., PRETUDICE, WAR AND TIm CONSTnTUON (1954) (trac-ing the origins of, and challenging, the evacuation of Japanese-Americans during World War II).6. See, e.g., Jacobus tenBroek & Floyd W. Matson, The Disabled and the Law of Welfare,54 CAL. L. REv. 809 (1966); Jacobus tenBroek, The Right to Live in the World: The Disabled inthe Law of Torts, 54 CAL. L. REv. 841 (1966). Jacobus tenBroek founded, and for 21 years servedas President of the National Federation of the Blind, which he described as "an aggressive, militant,activist organization of the blind themselves." Id. at 841 Author's Note.1Selinger: Equal Protection and Minimum Social Benefits: An Addendum to ProfPublished by The Research Repository @ WVU, 1991WEST VIRGINIA LAW REVIEWindeed with the way that Robin West has drawn upon his historicalresearch and analysis to construct a striking new constitutional the-ory.7The purpose of this brief addendum to Professor West's article8is, first, to emphasize how peculiarly difficult it is today to derivea constitutional claim to welfare rights for those at the bottom ofthe American economic ladder from her abolitionist, denial-of-pro-tection interpretation of the equal protection clause; second, to sketchout an argument that under the clause the government must nev-ertheless take reasonable steps to insure that all persons receive asmuch protection from our laws as people in general receive; andthird, to suggest that the satisfaction of such an obligation to affordprotection could well require the provision to the poorest of min-imum social benefits.I.On February 13, 1990, public television's Frontline series broad-cast an excellent documentary, narrated by Roger Wilkins, on theAfrican-American underclass in Washington, D.C. The title of theprogram, "Throwaway People," succinctly sums up the poignantsituation of today's poorest Americans - as contrasted with theircounterparts a hundred, or fifty, or even twenty years ago.In the past, the services of the poorest were a sought-after com-modity. If they could no longer be enslaved, they could still beexploited in the workplace, mobilized to win elections, used sexually,etc. It was realistic to talk about a governmental obligation underthe Fourteenth Amendment to protect them from the "dual sov-ereignty" of the more affluent. Because their services were wanted,this protection could be accomplished by direct governmental reg-ulation of the terms of the relationships in question (through, forexample, the enactment of wage and hour, and occupational safetylaws), and also by empowering the poorest to obtain more favorable7. Jacobus tenBroek died at the age of 56, in 1968 - a year in which too many extraordinarypeople died too soon.8. West, supra note 1.[Vol. 942West Virginia Law Review, Vol. 94, Iss. 1 [1991], Art. 6https://researchrepository.wvu.edu/wvlr/vol94/iss1/6ADDENDUM TO WESTterms on their own (through, for example, the sanctioning of col-lective bargaining).Today, however, due to an array of factors ranging from tech-nological developments to enhanced international economic com-petition to the presence of much larger numbers of women in theworkforce to greater sexual freedom and other value changes, itseems that hardly anyone wants to employ the poorest (or even, forthat matter, to enslave, exploit, or use them if possible). ProfessorWest acknowledges that others might not want the labor of thepoorest, but suggests that "a general pattern of obedience, acqui-escence, and subservience" on their part might still be in demand,as it were.9 While one could hardly fail to recognize a Lord of theFlies,0 kind of desire on the part of many persons to dominate oth-ers, I frankly doubt that the affluent and powerful of today needthe poorest even for that purpose.In fact, most people seem to want nothing more from the poorestthan for them to just disappear, and take with them the rest ofwhat the majority doesn't want: taxes for social benefits, the squalorof homelessness, aggressive panhandling, drugs, crime, indisciplinein the schools, and teen pregnancies. They are indeed throwawaypeople; and - to return to Professor West's theory - it just doesn'tseem realistic to talk about protecting them from the more affluent,except from their lack of compassion, which would rise to the levelof a constitutional violation, if at all, only under an antisubordi-nationist interpretation of the Fourteenth Amendment which she ar-gues against.II.Who in this society lacks protection from other people? ProfessorWest points to three groups: the wives of sexually abusive hus-bands," the children of abusive parents,12 and economically de-pendent homemakers. 3 Another group that comes readily to mind9. Id. at 130.10. WILLIAM GOLDING, LORD OF THE FIEs (1962).11. West, supra note 1, at 140-41.12. Id. at 141-42.13. Id. at 146.1991]3Selinger: Equal Protection and Minimum Social Benefits: An Addendum to ProfPublished by The Research Repository @ WVU, 1991WEST VIRGINIA LA W REVIEWare non-violent prisoners in many of our nation's penal institutions.But I want to focus here on a variety of groups who have in commonthe fact that they are trying, first, to just stay alive, and then tolive relatively conventional lives, by American middle-class stan-dards, in neighborhoods that are not only very poor but also dan-gerous, physically, emotionally, and socially.One such group consists of infants who were born prematurelyfollowing exposure to drugs or who are liable to contract infectionsfrom unsanitary surroundings. Toddlers who may be killed orwounded in drive-by shootings make up another. There are childrenwho are at risk of being assaulted on the way to school for theirlunch money, tennis shoes, or for just being different in one wayor another, children who may not learn at school because of thedisruptiveness of other children or because they may be persuadedthat trying to learn will make them appear to be different, andchildren who could be pressured into using or even selling drugs.There are adults who are in constant jeopardy of being mugged,burglarized, or vandalized (including homeless people who are afraidto go into public shelters); and adults who are discouraged fromusing community services and amenities (subways, libraries, parks)because of their squalid, if not dangerous condition. And there areolder people who are so frightened that they rarely go out into thestreets at all. All of these groups are desperately in need of pro-tection - from some of their poorest fellow citizens.As Professor West points out, the provision of a lower level ofpolice services, or other protective services, to poor and dangerousneighborhoods than is provided to more affluent neighborhoodswould clearly confound an abolitionist interpretation of the equalprotection clause. 14 But what if such a disparity cannot be shown?What if the same level of protective services is already being pro-vided to dangerous neighborhoods, albeit to little avail? Clearly, theresidents of such neighborhoods are nevertheless less protected -are receiving less protection - than the residents of other neigh-borhoods. The constitutional guaranty, however, is not one of "equal14. Id. at 141.[Vol. 944West Virginia Law Review, Vol. 94, Iss. 1 [1991], Art. 6https://researchrepository.wvu.edu/wvlr/vol94/iss1/6ADDENDUM TO WESTprotection" simpliciter, but of "equal protection of the laws" whichcould be understood narrowly as calling only for an equalization ofgovernmental protective services in relation to whatever services arealready being provided to people in general.Even this narrow interpretation may require that some limitedadditional protective services be provided to dangerous neighbor-hoods, even at some additional expense; and that is often the prac-tice. To return to Professor West's metaphor of parents raisingchildren on a sometimes dangerous island, 15 it is difficult to imaginea parent saying at one and the same time that she is going to protectall of her children equally, and that she will do nothing more forthe smallest and weakest than for the others.More broadly, however, since the presence of official protectionis expressly postulated in the Constitution - as the presence of suchother social benefits as housing, food and clothing, health care, andeducation is not - constitutional claims can be advanced with re-spect to the receipt of protection without the necessity of readingthe Fourteenth Amendment as embodying a general guaranty of sub-stantive equality.At a minimum, the equal protection clause would appear to guar-antee that the poor will not be stripped of even a minimum levelof governmental protective services in the current trend toward defacto partial privatization of public services:Those who can't afford to pay [for abortion counseling] will have to continueto live with a level of public service that many middle-class Americans wouldregard as inadequate but don't have to worry about - not as long as they canafford private health care, to say nothing of the private schooling, private mailservice, private security, privately reconstructed playgrounds, and private trashcollection that are becoming the requisites of a decent life in this country.* [A]s middle-class taxpayers use public facilities and services less and less,they are less and less inclined to subsidize them. Every effort to solve a socialproblem these days seems to inspire some policymaker to come up with a meansfor people to buy their way out of it.1615. Id. at 126-27.16. Talk of the Town, THE NEw YORKER, June 24, 1991, at 22. Already some owners of low-income apartment buildings in Brooklyn are employing a private security force "to oust drug dealerswhen the police cannot." Chris Hedges, In Brooklyn, Private Police as Violent as Their Enemy, N.Y.Tumzs, June 16, 1991, at 1.1991]5Selinger: Equal Protection and Minimum Social Benefits: An Addendum to ProfPublished by The Research Repository @ WVU, 1991WEST VIRGINIA LA W REVIEWHowever, I think that we can and should go farther. The com-mand that the government not deny to any person "the equal pro-tection of the laws" can and should be given a plain-meaninginterpretation that the government must take reasonable steps (thatare otherwise constitutional) to insure that all persons receive asmuch protection from our laws as people in general receive - andthis would usually require taking steps to insure that our laws doachieve the protective goals that they are supposed to achieve.Professor West argues, with Judge Posner, that "the wave ofKlan lynchings and private violence undeterred and unpunished bythe state that characterized the post-Civil War era is the paradigmaticequal protection violation .... ,,17 If the government could not haveavoided a finding of unconstitutionality by showing merely that itwould have been difficult and quite costly to afford a victim oflynching the protection both contemplated by its laws against hom-icide and received by people in general, a similar explanation fornot actually protecting the residents of dangerous neighborhoodstoday should also be rejected.Criminal laws clearly have protective goals. But so, implicitly,do laws establishing school systems and providing for other com-munity services and amenities. These laws assume that students willbe protected from acts or conditions (at least man-made conditions)that interfere with their ability to learn or pressure them into nottrying to learn, and that people generally will be protected from actsor conditions that will significantly impede their access to trans-portation, books, and other information sources, and recreationalfacilities. When people in general receive such protection - the af-fluent may not need to use the subways, public libraries, or parks,or even the public schools, but they do have unimpeded access totheir equivalents - and residents of dangerous neighborhoods donot, the latter are effectively denied the equal protection of the laws.While not relying on the Fourteenth Amendment, the U.S. Courtof Appeals for the Second Circuit seemed to be concerned aboutequal protection for New York City subway riders in its recent de-17. West, supra note 1, at 139.[Vol. 946West Virginia Law Review, Vol. 94, Iss. 1 [1991], Art. 6https://researchrepository.wvu.edu/wvlr/vol94/iss1/6ADDENDUM TO WESTcision upholding a regulation prohibiting panhandling in the subwaysystem:The subway is a not a domain of the privileged and powerful. Rather, it is theprimary means of transportation for literally millions of people of modest means,including hard-working men and women, students and elderly pensioners who livein and around New York City and who are dependent on the subway for theconduct of their daily affairs. They are the bulk of the subway's patronage, andthe City has an obvious interest in providing them with a reasonably safe, pro-pitious and benign means of public transportation. 18III.Plainly, it would be pointless to say that governments are ob-ligated to take reasonable steps to insure that all persons are as wellprotected by its laws as people in general are if such an obligationwere in practical terms impossible to discharge. And that might oftenbe the case if the only way to afford increased protection in dan-gerous neighborhoods would be to increase the police and otherprotective services provided to them. In some instances, even massiveincreases in protective services would not achieve the desired pro-tective results. In other instances such increases would have to beviewed as unreasonable because they would impose on the neigh-borhoods concerned a deadeningly oppressive atmosphere.In still other instances, increases in protective services for somepersons could conflict with the constitutional rights of other persons.To cite one example, although the unimpeded use of public libraries,as sources of books and other information or simply as calm andquiet places to study or write, has historically been of tremendousvalue to new immigrants and other poor people in this country, afederal district judge in New Jersey, H. Lee Sarokin, ruled recentlythat the homeless could not constitutionally be prevented from loi-tering in public libraries, and annoying other patrons by their noise,staring, and poor bodily hygiene. 1918. Young v. New York City Transit Auth., 903 F.2d 146, 158 (2d Cir. 1990), cert. denied,111 S. Ct. 516 (1990).19. Kreimer v. Bureau of Police, 765 F. Supp. 181 (D.N.J. 1991). However, New York Cityofficials have recently rousted the homeless from permanent encampments in Tompkins Square Parkand Columbus Circle on the ground that the community was being prevented from using these publicspaces. Sam Roberts, Evicting the Homeless, N.Y. TiMas, June 22, 1991, at 1, 26.1991]7Selinger: Equal Protection and Minimum Social Benefits: An Addendum to ProfPublished by The Research Repository @ WVU, 1991WEST VIRGINIA LA W REVIEWFortunately, increased protection can often be afforded to a dan-gerous neighborhood not only through increased protective services,but also by providing all of its residents with minimum social ben-efits such as adequate housing, food and clothing, health care, andpossibly even guaranteed employment. As Judge Sarokin observedwith respect to protecting would-be library users from the squalorof homelessness, "If we wish to shield our eyes and noses from thehomeless, we should revoke their condition, not their library cards."20Under a broad denial-of-protection interpretation of the Equal Pro-tection Clause, if that's what it takes, that's what's required.In her article, Professor West emphasizes correctly that the mainresponsibility for implementing a denial-of-protection interpretationof the equal protection clause must rest with the political branchesof government, the legislature and the executive, rather than withthe judiciary, and that therefore our attitudes as citizens are criticallyimportant. 21For his part, Jacobus tenBroek professed that "the basic prin-ciples of our political and constitutional system" call on us to:Protect the essential dignity of the individual: by recognizing the worth of thehuman personality and treating it as a community asset rather than a communityliability ... [and] by making possible [for recipients of public assistance] a stan-dard and circumstance of living not conspicuously different from that enjoyedby the rest of the community .... 220. Kreimer, 765 F. Supp. at 183.21. West, supra note 1, at 152-55.22. Jacobus tenBroek & Richard B. Wilson, Public Assistance and Social Insurance - A Nor-mative Evaluation, 1 U.C.L.A. L. REv. 237, 263 (1954).[Vol. 948West Virginia Law Review, Vol. 94, Iss. 1 [1991], Art. 6https://researchrepository.wvu.edu/wvlr/vol94/iss1/6

Equal Protection and Minimum Social Benefits: An Addendum to Professor West\u27s Abolitionist Theory

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Equal Protection and Minimum Social Benefits: An Addendum to Professor West\u27s Abolitionist Theory

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