“Welfare Reform at the Limit: An Essay on the Futility of ‘Ending Welfare as We Know It,’” 30 Harvard Civil Rights-Civil Liberties Law Review 339 (1995).
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Abstract: On June 14, 1994, President Clinton announced an “end [to] welfare as we know it . . . to change it from a system based on dependance to a system that works toward independence . . . to change it so that the focus is clearly on work.” Introduced as the Work and Responsibility Act of 1994, the reform failed to become law. During the early part of 1995, the Republican controlled Congress introduced its own version of radical welfare reform, the Personal Responsibility Act of 1995. My purpose is to demonstrate that neither reform changes anything. I go further: these reforms (or for that matter any politically and socially acceptable substitute for it) can not be formulated in a manner that would change anything. Both the substance and rhetoric of all viable poor relief reform must fall squarely within the limited ambit of the paradigmatic vision of poverty and welfare which has guided thinking in Western Europe and the United States since the early Middle Ages. The critical assumptions about society, the poor, and the proper role of each, subsumed under notions of what I call the static paradigm, substantially limits the conceptual framework within which poor relief reform is considered: the able-bodied must work, the able-bodied could find work if they sought it, sustained unemployment is an individual failing, sustained unemployment is a dangerous form of social and economic deviance that poses a threat to social stability. Examined under these constraints, the “liberal” and “conservative” reform proposals, as well as the current Great Society system of categorical relief, all can be said to take “welfare” to its limit. Beyond these confines reform is practically inconceivable. I use Part I of this essay to describe the foundationalist context in which these reforms were spawned. Parts II though VII examines the current Democratic and Republican reform proposals in light of the foundationalist assumptions of the static paradigm. I examine the ways in which welfare reforms reproduce the social hierarchy within the recipient population (Part II). I then explore the necessity for disjunction between funding and needs, the uses of implementation delay as a means of cost minimization and the efficiency of cost shifting and quality control as a means of minimizing institutional relief burdens (Part III). I thereafter probe the ways in which poor relief is used to punish deviance from accepted cultural norms by examining the ways in which the reforms manipulate eligibility and need rules (Part IV), the ways in which the reforms emphasize work (Part V), the traditional family, and control of anti-social behavior generally (Part VI). Lastly, I examine the reasons why poor relief reform necessarily ignores issues of race, gender and ethnicity. Our foundationalist thinking functions like tinted blinders, cutting our vision of phenomena and rendering us unable to see facts that cannot be reconciled with the core assumptions of the paradigm on which we base our economic and social order. We tend, therefore, to be indifferent to issues of race, gender and ethnicity in the poverty context because we assume these issues away before we begin the analysis. Moreover, our social judgments about women, our expectations of their sole in society, and our desire to police these roles, inevitably results in a system that encourages approved behavior. Our vision of poor relief reform is necessarily limited. It exists within the limitations of our social structuring which permits difference only over the amount of wealth to be made available to the destitute and the means by which we intend to impose our social norms on the recipients. This is as true of “liberals” as it is of “conservatives.” For those who view traditional cultural taboos as evil, and who desire to impose a different set of cultural norms on society, this article may well provide an indictment (to the extent of the discomfort with traditional cultural norms) of the feebleness of legislative reform and the hypocrisy of the rhetoric of reform. On the other hand, for those who share, or want to share, the traditional values represented by the assumptions of the static paradigm, the article may well provide evidence of the necessity of harshness in the treatment of non-conformists and a more efficient means of maximizing the effectiveness of limited purpose poor relief.
“Medieval Poor Law in Twentieth Century America: Looking Back Towards a General Theory of Modern American Poor Relief,” 44 Case Western Reserve Law Review 871 (1995).
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Abstract: American systems of poor relief are both a product of, and limited by, a precisely definable set of critical and fundamental assumptions which this article describes as the static paradigm. The article first identifies and explores the critical assumptions and principles of the static paradigm. It then lays out a general theory of American poor relief. The General theory is then contextualized by examining archetypal Anglo-American poor relief, ecclesiastical poor relief and the Elizabethan Poor Law, in light of the theory. The characteristics of state run systems of general relief are examined in light of the theory. In particular, the systems of American general relief can best be understood by certain characteristics: (1) the categorization imperative; (2) the relationship of categorization to Aid; (3) the drive To quarantine the destitute: separation, isolation, self-containment, and local administration; (4) the right to relief generally and to specific forms of relief; (5) the obsession with cost. Within the context of the static paradigm, change can be understood as gesture: “Reform” functions as the means by which society inflates the language of system reform in order to appear to implement lofty goals (the eradication of poverty) by recharacterizing traditional approaches as new, untried, or otherwise divinely inspired. Our reality is described by the general theory. Current systems of general assistance in the United States are demonstrably static. They are also strikingly similar to each other in basic conception and implementation, as well as to those dusty and irrelevant old systems each claimed to displace. The three systems seem to share a fondness for an understanding of poverty in cultural terms. This makes judgments of deviance and relative worth easy to make and easier to defend at the level of the unconscious. As long as the basic assumptions of the static paradigm itself remain unquestioned, there is unlikely to be anything substantially different in the manner in which our society anytime soon. As such, for those uncomfortable with the message and implications of stasis, for those who actually believe the rhetoric of poverty, the picture is, therefore, quite gloomy.