Does the Law Morally Bind the Poor?

Or What Good's the Constitution When You Can't Buy a Loaf of Bread?

R. George Wright

• Publisher: NYU Press
• Year: 1996
• ISBN:
  9780814795026
• Topic: Law
• Subtopic: Public Law
• Index: Law

Consider the horror we feel when we learn of a crime such as that committed by Robert Alton Harris, who commandeered a car, killed the two teenage boys in it, and then finished what was left of their lunch. What we don't consider in our reaction to the depravity of this act is that, whether we morally blame him or not, Robert Alton Harris has led a life almost unimaginably different from our own in crucial respects.

In Does Law Morally Bind the Poor? or What Good's the Constitution When You Can't Buy a Loaf of Bread?, author R. George Wright argues that while the poor live in the same world as the rest of us, their world is crucially different. The law does not recognize this difference, however, and proves to be inconsistent by excusing the trespasses of persons fleeing unexpected storms, but not those of the involuntarily homeless. He persuasively concludes that we can reject crude environmental determinism without holding the most deprived to unreasonable standards.

chapter one
Does the Constitution Morally Bind the Poor?

This chapter explores a crucial, but largely undiscussed, problem in American constitutional jurisprudence. The problem is not difficult to state: Many Americans live through remarkable deprivation and disadvantage. Their stories differ widely, but common elements include inadequate nutrition, desperate poverty, sheer physical danger, or even homelessness. It is nevertheless widely assumed that such persons are morally obligated, or generally morally bound, by the United States Constitution. Much of the Constitution does not impose direct duties of compliance on ordinary citizens. But it is still assumed that the poor, along with others, must work within the established constitutional framework. Further, they must accept, as authorized and legitimate, actions undertaken in carrying out constitutional provisions. But it is not clear why this should be so. This chapter critically examines the arguments for holding those we may call the abject poor to be morally bound by the Constitution. Those lines of argument turn out to be unsatisfactory, for reasons that are unique to the circumstances of the abject poor. The chapter concludes by briefly reflecting on the moral limits that may still legitimately bind those persons not genuinely morally bound by the Constitution.

In the American constitutional tradition, the most natural explanation of why the abject poor, or indeed anyone else, should be held bound by the Constitution relies on consent or social contract. The courts have commonly referred to at least some such understanding, and the framers are commonly thought to have done so as well. The idea of a social contract has been interpreted in a number of ways. Our focus, however, is simply on the presence or absence of some form of voluntary consent in determining whether persons should be held morally obligated to obey a particular government. Social contract theory holds that only by intentional and voluntary consent signaled to another can a free and autonomous person come to be obligated to obey. Even if consent is not by itself sufficient to create a morally binding obligation, consent is at least a necessary condition for such an obligation to exist.

It is plainly possible to launch broad attacks against any form of a social contract or consent theory of obligation. Classic as well as contemporary versions of such broad-based attacks are well known. Our purpose, however, is not to add to or respond to this literature. We will instead assume that all the theories of obligation we discuss in this chapter are coherent and can be sensibly applied in some cases. Thus our initial focus is on whether consent theory can establish a moral obligation specifically on the part of the chronically abject poor to adhere to the American Constitution, including its amendment process, along with the moral implications for such persons if consent theory fails in this regard. While the Constitution does not, for the most part, command abjectly poor people to obey or to do particular things, the Constitution does claim to establish a uniquely authorized, legitimately binding framework that the poor and others are to recognize and work within.

Whether the abject poor are thus rightly bound by the Constitution may depend on the substantive provisions of the Constitution, the process of proposing, negotiating, and ratifying the Constitution, or some combination of the two. We must therefore consider both the substance of the Constitution and the procedures associated with its adoption when we consider the ways in which persons might be said to consent.

We may begin by thinking about the Constitution in a general way. It is often observed that the Constitution is largely, if not exclusively, a guarantor of what are referred to as “negative,” as opposed to “positive,” liberties or rights. Of course, the Constitution does far more than recognize or protect rights and liberties. But we may, for our purposes, safely focus on the Constitution insofar as it speaks, or fails to speak, to such rights and liberties. The differences between negative and positive liberties and between negative and positive rights are actually quite murky, but rough distinctions may be attempted.

Let us begin with a few examples. Rights to education, housing, or welfare, whether actually recognized or merely proposed, and whether they are legal rights or moral rights, are commonly thought of as positive rights. In contrast, a right to not be deprived, via false imprisonment by the government, of one’s liberty without due process would be a negative right. To not be defrauded or assaulted by some private actor would also typically be thought of as negative rights.

These examples suggest that at least in some cases, positive rights tend to be more publicly expensive or more difficult to fulfill than negative rights. In addition, given some arbitrary historical baseline or some assumed status quo, positive rights may redistribute wealth more than negative rights. Positive rights may seem to require more affirmative or active government intervention than do negative rights, at least from the perspective of the chosen historical baseline.

Bringing these strands together, we might argue that a private party may respect the negative right of every person to not be directly assaulted by that particular party merely by doing nothing at all, or by doing anything other than engaging in an assault. On the other hand, it may be difficult for a private party, or even a government, to so inexpensively or so passively fulfill, universally or even for a single person, a positive right to welfare. Most of us can refrain from assaulting more people than we can readily afford to feed. Not assaulting one person rarely makes it more difficult to not assault another person, whereas feeding one person may, in more cases, diminish the resources by which we might also feed another person.

This gives us some idea of the distinction between negative and positive rights. The distinction, on the other hand, between negative and positive liberties is rarely formulated in the same way twice, but we can at least bring out some of the recurring themes. In the sense in which we are most interested, negative liberty means something like the absence of socially imposed restraints on the range or value of one’s choices and actions. Positive liberty, on the other hand, means liberty to obtain what one wants or what is really in one’s interests, generally through the affirmative assistance and support of other people. Positive liberty is often associated with some conception of self-realization, self-development, growth, or even rationality itself. Again, the distinction between negative and positive liberty may be suspect, but we may for our purposes think of positive liberty as the actual attainment by some party of some desirable state of affairs.

Using these distinctions, we may ask about the nature of the federal Constitution and its substantive rights provisions. Often, the Constitution is associated with negative rights or liberties. But the Constitution cannot be categorized as purely “negative,” along these dimensions, in any simple and exceptionless way. If we look to admittedly recent, but apparently stable, Supreme Court interpretations of basic constitutional rights, we can recognize at least a few “positive” elements.

For example, in Gideon v. Wainwright the Court interpreted the Sixth Amendment, via the due process clause of the Fourteenth Amendment, to require the states to provide legal counsel for at least some indigent criminal defendants requesting such assistance. Thus not all due process claims involve only clearly negative rights. Under Gideon, the indigent criminal defendant has an enforceable legal claim to services the market value of which might far exceed the defendant’s net wealth. Substantial wealth redistribution may thus occur. This right is of direct, immediate value only to criminal defendants, and is not readily transferrable or convertible into other sorts of rights or values. But this does not mean that the right is not “positive” in character. The right takes the form not merely of government noninterference in the indigent defendant’s likely futile attempt to hire private counsel, but of affirmative government provision of a valuable, otherwise unaffordable service. One might also say that indigent persons, whether charged with a crime or not, may have some sort of a right to police protection from private criminal acts. This right, too, might well be redistributive, or of a value beyond the indigent’s ability to pay. But such a right is, currently, not of constitutional dimension, and is certainly not legally enforceable in any specific way, as a right to appointed counsel might be.

Even the classically “negative” right to freedom of speech may have at least some minimal, if difficult to specify, positive or affirmatively redistributive elements under the case law. It may well be that the Constitution, in at least some cases, requires the government to foot the bill, in the form of increased costs of police protection, insurance, or merely increased maintenance and sanitation costs, for parades or rallies. It may thus be that the free speech clause sometimes prevents the government from requiring the organizer or speaker to either fully internalize these costs or refrain from speaking. It is at least unclear, for example, that a government could require an organization of poor persons to demonstrate its financial ability to pay the reasonable additional costs of, say, state employees’ picking up discarded leaflets.

These examples certainly do not exhaust the range of federal constitutional rights in which the government assumes an affirmative, at least modestly redistributive role. But as we have seen, the general tenor and character of the rights protected by the Constitution is indeed largely “negative.” The positive rights protected by the Constitution are few in number and of less than vital practical significance for most of the abject poor.

This is not to suggest that, for example, their currently recognized positive constitutional right to a waiver of a divorce filing fee must be regarded by all abjectly poor persons as trivial. But such a positive constitutional right must pale into insignificance in comparison with many of the potential positive constitutional rights currently denied by the Court. This is also not to suggest that the abject poor all share common histories, ideologies, priorities, or even circumstances beyond some level of detail. But on any view of reasonable choice, most chronically abjectly poor persons will recognize their interest in access to food, shelter, education, physical safety, or employment as more vital than most of the currently recognized positive constitutional rights. And it is precisely those most basic interests in food, shelter, education, physical safety, and employment that our society leaves contingent, substantially uncertain in practice, and unprotected by our federal Constitution.

To be sure, some individual states recognize some sort of state constitutional right to an education, but this is neither universally meaningful among the states nor guaranteed at the federal constitutional level. The idea of any sort of federal constitutional right to employment has not even been taken seriously, nor has a general right to even minimal government efforts to provide for some degree of sheer physical safety or security from private assault. This is, upon reflection, an extremely odd and striking state of affairs, even given classical liberal distrust of government. Such rights are, in one way or another, strongly emphasized in liberal and social contract theorists as diverse as Hobbes, Spinoza, Harrington, Locke, Hume, and Condorcet.

These vital interests are, at least for the abject poor, often not only not constitutionally or otherwise legally guaranteed, but quite likely unfulfilled by any means in practice. The absence of a constitutional right would be arguably inconsequential if, in practice, one’s private efforts, the market, other sorts of law, or private charity almost invariably provided what the Constitution had failed to guarantee. But this is, in varying degrees, simply not the case for the most vital interests of the abject poor. Can we say, for example, that even in the absence of any constitutional protection for physical safety, the poor and homeless really need not worry about their own physical safety?

In addition, there is no reasonable certainty that any, let alone all, of the most vital interests of the abject poor will eventually be constitutionally recognized, at least within the next generation or so. While such recognition is possible, it would be plainly imprudent for the abject poor to assume that it is likely. It would thus be imprudent for many of the abject poor to endorse the present Constitution on the grounds that it will, over the reasonably near term, likely be transformed to accommodate their most basic needs and interests. It is, of course, possible to assume that the abject poor care only about events that will be occurring decades from now, but that unrealistic assumption would serve only to rob social contract theory of most of its interest.

We are left with a Constitution featuring only few and generally less than practically crucial positive rights and liberties, and no strong likelihood of this changing dramatically in the near future. Let us then consider how this state of affairs fits with a social contract or consent theory of why the chronically abject poor should be held morally bound to obey or work within the established constitutional framework.

There are two important general lines of consent-based argument. According to the first line of argument, the substance and content of the Constitution are such that the abject poor ought reasonably to consent to its terms, whether they actually consent or not. The second line of argument holds that the abject poor have in fact consented or agreed to the Constitution, expressly or tacitly, in circumstances under which that consent may rightly be held morally binding.

We may consider the first possible line of argument to involve merely the hypothetical consent of the abject poor, in that the argument aims not at showing any actual consent, but at showing that insofar as the abject poor are reasonable, they, perhaps along with the nonpoor, would freely consent to the Constitution if presented with the choice.

Let us take the chronically abject poor as they are, and as knowing themselves to be chronically, abjectly poor. Concretely, we may think of them as chronically, abjectly poor precisely because their relationship to basic sustenance, shelter, education, physical safety, and employment is known to them to be substantially uncertain, unreliable, or subject to disruption for personally uncontrollable reasons. Of course, not all such persons may care about all these dimensions of life. The very elderly, for example, may have only a limited direct interest in practical access to a safe primary education. We shall, however, treat this as a noncrucial complication.

If the poor know their own general circumstances, along with some basic facts about our economy and society, including the availability of great collective wealth and discretionary income, and the practical possibilities for redistributing wealth at some possible cost in inefficiency and disincentives, they reasonably must ask how the current Constitution promotes their basic interests and values by comparison with other possible constitutional regimes. They will reasonably ask whether a different feasible mixture of negative and positive constitutional rights might, from the standpoint of their basic interests and values, be significantly preferable.

We are assuming that the abject poor, along with everyone else, will be thinking partly in terms of rights and claims of right. This is perhaps a controversial assumption, as the proper role of rights claims is itself controversial. Talking in terms of rights is sometimes thought to lend itself to excessive individualism, selfishness, absolutism, or evasion of responsibility and lack of civic-mindedness. We will nevertheless assume some degree of rights talk, and that any constitution consensually arrived at will incorporate some sorts of rights protection. Our task, after all, is to determine whether our current Constitution could reasonably be consented to by the poor, or otherwise morally bind the poor. Avoiding rights talk is no less controversial than relying on rights talk, and avoiding a rights analysis may actually bias the inquiry against any moral obligation to our current rights-laden Constitution. If talk of rights should be avoided, we can, admittedly, hardly condemn the Constitution for not protecting the rights of the poor. But on the other hand, why should the poor reasonably endorse our current Constitution if, by assumption, that Constitution is misguided insofar as it focuses on any sorts of rights?

We have also assumed that the poor, along with everyone else, will decide whether to consent to the Constitution based largely on their own most crucial interests, individually or collectively, over some reasonable time frame, perhaps in conjunction with other basic values. It is difficult to see how some such assumption could be avoided by a consent theory. We could instead assume that the poor strongly identify with the interests of the rich, but this would not be of much interest for our purposes unless we also assumed that the rich strongly identified with the interests of the poor. We will instead assume only limited cross-class interest.

Now, we can imagine some poor persons who do not mind starving or being homeless, on the theory that such starvation or home-lessness makes it possible and likely that their children or other family members will be quite well-off financially. We may fairly assume, however, that many poor people will detect no such iron linkage between the remarkably severe impoverishment of some and otherwise unattainable well-being for the families of those thus severely impoverished.

These assumptions are not meant to restrict the sorts of considerations to which the poor may wish to attend. It is commonly thought that rights are often based on some idea of interests. But the poor may equally look to basic needs, which may of course overlap with interests, or to dignitary values. We do not wish to insist that the reasonableness of the poor take any special form.

The question then becomes whether the abject poor, perhaps along with others, should reasonably consent to our present Constitution or something essentially similar. They would presumably look generally to compatibility with their basic interests, needs, and values under alternative constitutional regimes, in practice, over time.

Some theorists may assume that even the poorest should sacrifice possible gains under some possible constitutions in order to minimize the risk of someday occupying the most horrifying social roles. We need not assume that the poor will seek to avoid as much risk as possible. On the other hand, if the poor are asked to consent without knowing whether they will be rich or poor, prudence would dictate that they avoid authorizing a regime in which one might well be chronically unemployed or even homeless. Guarding against the possibility of extreme poverty hardly requires that typical persons live under near-poverty conditions. Thus it seems unlikely that the homeless would consent to a regime involving significant involuntary homelessness even if they did not know who would turn out to be homeless. There is also no reason to assume masochistic self-denial on the part of the poor. Nor would it be reasonable on the part of the poor to assume that no constitutional regime can improve or worsen what would otherwise be their lot in life. Whether the chosen constitution permits slavery, for example, makes a difference.

When the abject poor consider our current Constitution, they will see a document that generally protects negative rights, along with a limited number of generally less than vital positive rights. They should recognize that there is no clear reason to believe that this will dramatically change anytime soon. But for the abject poor, the difference between negative and positive rights is often crucial in practice: given some chosen baseline, positive rights generally require more affirmative government assistance, redistribution, and provision than negative rights.

For these reasons, alleged rights to minimal subsistence, minimal housing, education, some degree of physical safety, or employment are normally thought of as positive rights. An alleged right to minimal subsistence may, along with the other potential positive rights, vary greatly in its scope and stringency. But if such a right is to be useful and valuable for the most poor, it must extend beyond a negative right to be free of direct state interference in one’s lawful attempts to earn one’s bread. Similarly, an alleged right to some degree of physical safety might be conceived of in many ways. But if the aim or underlying interest is as we would suppose it to be, the right to physical safety must extend beyond the merely negative right against government interference with lawful self-defense, and beyond the largely negative rights to due process and freedom from cruel and unusual punishment or other governmental threats to safety. Most reasonable poor persons object to being beaten in the streets not only by police, but by purely private persons as well.

The poor are likely to reason that there is something seriously incomplete in a right not to be inappropriately shot by government actors if the government could, but ...