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61 Stan. L. Rev. 203 (2008-2009)
Rethinking Constitutional Welfare Rights

handle is hein.journals/stflr61 and id is 207 raw text is: ARTICLES RETHINKING CONSTITUTIONAL WELFARE RIGHTS Goodwin Liu* A generation ago, Harvard law professor Frank Michelman advanced an influential and provocative vein of scholarship theorizing the content and justiciability of constitutional welfare rights. Michelman's writings, which endure as the most insigh ful and imaginative work in this area, sought to anchor the Supreme Court's welfare rights jurisprudence in a comprehensive theory of distributive justice, in particular John Rawls's theory ofjustice as fairness. In this Article, I reappraise Michelman's seminal work and argue that his effort to ground the adjudication of welfare rights in a comprehensive moral theory ultimately confronts intractable problems of democratic legitimacy. My thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcendent moral principles for an ideal society, but to the culturally and historically contingent meanings of particular social goods in our own society. Informed by the central themes of Michael Walzer's Spheres of Justice, I argue that judicial recognition of welfare rights is best conceived as an act of interpreting the shared understandings of particular welfare goods as they are manifested in our institutions, laws, and evolving social practices. On this account, the existence of a welfare right depends on democratic instantiation in the first instance, typically in the form of a legislated program, with the judiciary generally limited to an interstitial role. Further, because the shared understandings of a given society are ultimately subject to democratic revision, courts cannot fix the existence or contours of a welfare right for all time. So conceived, justiciable welfare rights reflect the contingent character of our society's collective judgments rather than the tidy logic of a comprehensive moral theory. * Associate Dean and Professor of Law, University of California, Berkeley School of Law. For helpful comments and conversations on this project, I thank Kathy Abrams, Catherine Albiston, Jesse Choper, Dan Farber, Willy Fletcher, Phil Frickey, Robert Gordon, Chris Kutz, Frank Michelman, Ann O'Leary, Sarah Song, Steve Sugarman, and my colleagues in the Junior Working Ideas Group at Boalt. I also benefited greatly from workshops with faculty and students at Columbia, Georgetown, Stanford, and the University of Chicago, and I am grateful to Gillian Metzger, Trevor Morrison, Robin West, Larry Kramer, and David Strauss for those opportunities and for their insightful comments too. 203

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