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03/20/2020

John McGinnis on Goldberg v. Kelly
Michael Ramsey

At Law & Liberty (recently redesigned!), John McGinnis, Brennan’s Best or the Court’s Worst? From the introduction:

Goldberg v. Kelly, a landmark Supreme Court decision creating constitutional rights for “new property,” like welfare, turns 50 this month. William Brennan, the leading liberal justice of the 20th century, called it one of his best, if not his best opinion. He described it as “injecting passion into a system whose abstract rationality had led it astray” and “declaring that sterile rationality is no more appropriate for our administrative officials than for our judges.”

Yet Goldberg‘s birthday is not one to celebrate—and not just because Brennan denigrates the formal methods of legal reasoning that are guardrails of the rule of law. The opinion elides the essential distinction between private property and government benefits. Indeed, read with full force, it may suggest that both welfare and private property have the same status: both exist at the sufferance of government. Their only protection, then, are the due process rights the Court chooses to grant. Moreover, the opinion embodies judicial overreach. The Court pretends that it can calibrate the procedures for determining continued eligibility for welfare benefits, although it has no expertise in the subject.

While the decision has been distinguished and cabined, it has never been overruled. Its blurring of the distinction between private property and government benefits could easily gain new energy from some future justices—like those appointed by a socialist, to take a purely hypothetical example!

As the post goes on to show, Goldberg is one of many examples refuting the common critique (see for example here from Neil Buchanan and Michael Dorf) that there's no material difference between modern originalism and nonoriginalism.  For an originalist, 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.  Simple.  It may well be true, as Justice Brennan wrote, that welfare recipients have a "brutal need" for their payments -- even a greater need, perhaps, than property owners have for their property.  And it may be true that one can redefine "property" to include future payments from the government, as Charles Reich famously did in calling them the "new property" -- and that "property" is in that sense ambiguous.  These may be important, even decisive, questions for nonoriginalists like Brennan, and they might be reasons to consider a constitutional amendment, but for an originalist analysis they don't matter.

As importantly, if it turns out that I'm wrong (as I might be) and that future gratuitous payments were considered property when the clause was enacted, then the originalist analysis comes out differently -- again without regard to modern conditions that might cut the other way, such as the great expansion of the welfare state.

Goldberg is fundamentally a nonoriginalist opinion, an express contrast to originalism (as Brennan intended).  Its outcome could be defended on originalist grounds only by completely rewriting the opinion, and only if particular facts about the meaning of property at the time of enactment could be established (and I doubt they could be).  The idea that these two modes of analysis are essentially the same is, at best, odd.