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Another Look at Goldberg v. Kelly
David Weisberg

Question: If the majority opinion in Goldberg v. Kelly is dangerously misleading and the case was wrongly decided, does it follow that the due process clause in the 5th or 14th Amendment has no application whatsoever to welfare payments provided by government?  Prof. Ramsey’s recent post, and Prof. John McGinnis’ essay which is discussed in that post, would both support an affirmative answer.  I disagree.  I think Goldberg was wrongly decided because the State did provide adequate due process, not because due process is inapplicable to termination of welfare benefits.    

In constitutional interpretation, I consider myself a textualist, not an original-public-meaning originalist (for reasons set forth here and here).  Originalists sometimes (not always) ascertain the time-dated meaning of a word or phrase by examining the practices that were current when the word or phrase became part of the Constitution.  A classic example is Justice Scalia’s dissent in the same-sex marriage cases, Obergefell vHodges: “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” 

I agree that Obergefell was wrongly decided, but Justice Scalia’s reasoning is flawed.  It is true that in 1868 no one doubted the constitutionality of States limiting marriage to opposite-sex couples, but it is equally true that, at that time, no one explicitly affirmed that States could constitutionally prohibit same-sex marriage.  The whole truth is that, in 1868, no one even imagined same-sex couples marrying each other, so no one thought either way about constitutional issues concerning such marriages. 

If a certain set of facts (such as same-sex couples desiring to wed) was not, so to speak, in the public domain when a constitutional provision was adopted, what does the absence of any reference in that provision to that set of facts tell you about how the provision applies to those facts?  Nothing.  This is very different from a case involving facts with which the drafters were clearly familiar at the time of adoption.  Justice Scalia himself appreciated that important difference. 

In his book, A Matter of Interpretation, he discussed Maryland vCraig, 497 US 836 (1990), where the Court (over Scalia’s dissent) held that the 6th Amend’s confrontation clause was not violated when, in a criminal case of alleged child abuse, the young child testified in a room from which the defendant was excluded, while the defendant watched on closed-circuit television.  Justice Scalia wrote (p. 44, emphases in original):

[N]o extrinsic factors have changed since [the confrontation clause] was adopted in 1791.  Sexual abuse existed then, as it does now; little children were more easily upset than adults, then as now; a means of placing the defendant out of sight of the witness existed then as now (a screen could easily have been erected that would enable the defendant to see the witness, but not the witness the defendant).  But the Sixth Amendment nonetheless gave all criminal defendants the right to confront the witness against them[.]    

Prof. Ramsey asserts, with respect to Goldberg, that “the key is that ‘property,’ given its original public meaning, did not include rights to future gratuitous payments from the government.  Thus the due process clause does not protect welfare payments.”  This reasoning incorporates the same flaw found in Scalia’s Obergefell dissent.  I accept arguendo that, in 1791 or 1868, no one understood ‘property’ to refer to welfare payments, but that is not because in either of those eras people drew a sharp distinction between ‘property’ and ‘welfare payments’.  Rather, it is because in those eras the notion of poor people receiving gratuitous payments from government was not given serious consideration at all; it wasn’t, to use another phrase, on anyone’s radar.  

If the due process clause does not protect welfare payments, it would follow that government could distribute such payments in an entirely arbitrary manner, and no person would have a legal remedy.  Suppose the government decided to exclude people whose last names begin with “W” from an otherwise general welfare scheme.  Or, perhaps more realistically, suppose some government decided to bar all gun owners (whether legal or not) from an otherwise general welfare scheme.  If these exclusions had no reasonable relationship to the purposes of the welfare scheme, would they nevertheless be exempt from challenge under the due process clause?

I would argue that the due process clauses prohibit government from depriving anyone of anything of value without due process of law.  In 1791 or 1868, before the welfare state, the valuable things government might take from a person were life, liberty or property.  Today, an individual loses something of value if the government terminates welfare benefits.  The drafters of the 5th and 14th Amendments never rejected the idea that welfare recipients should be provided some due process upon termination; they never thought about that question at all.

One might ask: if the above interpretation is correct, why doesn’t the 5th Amend read: “…nor be deprived of anything of value without due process of law...”,  and the 14th: “…nor shall any State deprive any person of anything of value without due process of law….”?  One always wishes that one’s interpretation of a constitutional provision is identical to the actual provision.  That of course is the virtue of the stance Profs. Ramsey and McGinnis take: ‘property’ did not encompass rights to welfare benefits, so due process does not apply.

Here I can only reiterate that, when the 5th and 14th Amendments were adopted, welfare benefits from government were not something that was widely discussed—perhaps that idea had not even been conceived.  Is there anything in the 5th or 14th Amendment, or in any other provision of the Constitution, suggesting that it is permissible for a government to arbitrarily grant or deny valuable benefits?  To my mind, the Constitution is manifestly designed to prohibit arbitrary governmental action and to ensure that governments act fairly and reasonably.  So, I think the better view is that some measure of due process must be provided whenever government deprives anyone of anything of value.  In Goldberg, the plaintiff had a colorable cause of action, but the due process provided by New York State was more than adequate.