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Article Excerpt
INTRODUCTION
I. ON PROTECTING THE POOR II. ONE VIEW OF RAWLS'S THEORY OF JUSTICE A. Judicial Review in Ideal and Nonideal Theory B. The Uneasy Role of Moral Theory in Adjudication III. TOWARD AN INTERPRETIVE APPROACH TO JUDICIAL RECOGNITION OF WELFARE RIGHTS A. Michelman Revisited B. One View of Walzer's Spheres of Justice C. Some Examples D. Limiting the Judicial Role IV. OBJECTIONS A. Conservatism and Criticism B. Indeterminacy and Judicial Activism CONCLUSION
INTRODUCTION
Once a subject of intense interest in the courts and legal academy, the idea that our Constitution guarantees affirmative rights to social and economic welfare has for some time been out of fashion. In 2001, William Forbath observed that "like Banquo's ghost, the idea of constitutional welfare rights will not die down, but it is not exactly alive, either. No flesh or even sustained arguments on its behalf have appeared for over a decade; only nods, and glancing acknowledgments." (1) As a doctrinal matter, the prevailing view is that issues of poverty and distributive justice should be resolved through legislative policymaking rather than constitutional adjudication. (2) Some commentators (myself included) have argued that such policymaking may yet have constitutional significance if the existence and binding force of constitutional welfare rights are distinguished from the question of judicial enforcement. (3) But it remains a fact of our legal culture that what counts as a constitutional right is deeply shaped by the courts, and for a generation, our courts have steered clear of social or economic rights, (4) even as severe deprivation and inequality continue to pose serious challenges to our commitment to human dignity and equal citizenship.
Things were not always so. During the 1960s and 1970s, welfare rights held a prominent place on the public agenda not only in the legislative process but also in mainstream constitutional discourse. (5) In the Supreme Court, the subject percolated long enough in equal protection and due process doctrine for us to see justiciable welfare rights as more than an idle aspiration, and the resulting precedents remain on the books. (6) Moreover, as Cass Sunstein has argued, the judicial retreat from welfare rights was a near thing, occurring in the wake of President Nixon's narrow electoral victory in 1968 and his improbable opportunity to appoint four new Justices to the Court between 1969 and 1972. (7) The four Nixon appointees joined Justice Stewart to form a bare majority in San Antonio Independent School District v. Rodriguez, the pivotal 1973 case upholding unequal school funding based on differences in local wealth. (8) And yet, for all of Rodriguez's skepticism toward judicial recognition of social and economic rights, the Court felt compelled to reserve the question, still dangling today, whether the Constitution guarantees a minimally adequate level of educational opportunity. (9)
Of course, no prudent advocate would bring this type of claim before the politically conservative Court now sitting. But that is not a reason to leave such questions unattended. "A period of no power is a period for the reformation of thought," the late Charles Black once said, "to the end that when power returns it may be more skillfully, more fittingly, used." (10) In that spirit, I attempt in this Article a small step toward "reformation of thought" on how welfare rights may be recognized through constitutional adjudication in a democratic society.
In approaching this large and difficult subject, my goal is not to offer anything like a comprehensive defense of the justiciability of welfare rights (if such a defense were possible). Instead, I proceed by revisiting an important strand of the subject's intellectual history--the early work of Frank Michelman (11)--to frame the problem of judicial legitimacy, to consider how moral theory should inform possible responses, and ultimately to probe the proper role of courts within a dynamic, socially situated account of how constitutional welfare rights come into being. My primary aim is not to determine whether the Supreme Court should presently recognize a constitutional right to education, health care, or some other social good. It is rather to suggest a way of thinking about such questions that captures the socially contingent character of welfare rights and the contours and limitations of the judicial role that flow from it.
My point of departure is Professor Michelman's justly famous 1969 Foreword to the Harvard Law Review, titled On Protecting the Poor Through the Fourteenth Amendment. (12) In that article, Michelman sought to rationalize an emerging line of equal protection decisions by the Supreme Court under a theory of minimum welfare rights. His key insight was that, in attacking the ills of poverty, claims nominally styled as wealth "discrimination" are better understood as claims of material "deprivation"--that is, as claims of inadequate rather than unequal provision of certain basic goods. This characterization, he argued, provides not only a better descriptive account of judicial decisions on welfare rights but also a better tactical approach for engaging the courts in this area within the limitations of the judicial role. As well-developed as these claims were, however, Michelman said little about the source of the minimum-welfare thesis and why it would be legitimate for courts to act on it.
Four years later, Michelman turned to those issues in a second important article, In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice, (13) one of the first and most insightful efforts to bring constitutional theory into conversation with John Rawls's signature work. (14) Michelman argued that Rawls's theory aids the legitimacy of justiciable welfare rights in two ways. First, by providing a substantive basis for deriving the content of minimum welfare rights, Rawls's principles of justice enable us to see that judges who act on the minimum welfare thesis are responding not to ad hoc intuition but to a systematic moral theory. Second, because the principles of justice under Rawls's theory are what the public would accept in an ideal society with a fully developed sense of justice, judicially enforceable welfare rights serve as an appropriate corrective device in a nonideal society like ours to "cop[e] with evolutionary deficiencies in the public's sense of justice." (15) Michelman sought to ease the tension between democracy and judicial review by positing that constitutional adjudication serves to reveal and clarify the moral principles latent in the public's own evolving sense of justice.
Michelman's reading of Rawls has many interesting complexities, which I examine in due course below. The main theme that emerges is the idea that judicial recognition of welfare rights, instead of appearing "fitful, unprincipled, and apologetic," (16) can achieve a desired measure of intellectual coherence by appealing explicitly to a comprehensive moral theory. Such a theory would help explain how the judiciary, functioning as a "forum of principle," (17) may confidently identify and protect welfare rights under the open-textured guarantees of equal protection and due process. (18)
Predictably, Michelman's work has drawn praise from scholars sympathetic to welfare rights (19) and criticism from those opposed to a judicial role in vindicating affirmative rights or economic equality. (20) Yet legal scholars have devoted little attention to Michelman's careful treatment of Rawls's theory not only as a source of substantive content for welfare rights but also as a framework for legitimizing their recognition by the courts. (21) The most sustained critique of Michelman's reading of Rawls occurs in an article by Professor Forbath arguing that Rawls's theory supports a vision of social citizenship whose entailments go beyond welfare rights to include "a right to decent work" as a core element of the social bases of self-respect. (22) But Forbath was not concerned with Michelman's basic claim that Rawls's theory can help legitimize the justiciability of welfare rights. (23) That claim is what I explore here.
Even as Michelman sought to bring coherence to welfare rights jurisprudence, he worried a great deal about the democratic legitimacy of grounding constitutional adjudication in moral theory. The normative thesis I shall advance begins with the contention that his worries were well justified. However alluring it may be to posit that our Constitution embodies substantive moral principles reflecting the terms of a rational if hypothetical consensus, judicial reasoning in this vein faces serious obstacles to gaining broad public acceptance. As Michelman acknowledged, the derivation of welfare rights through philosophical argument from first principles seems unlikely to capture the ways in which our nonideal society actually develops and understands its moral commitments. Our basic commitments to mutual provision are bound to reflect collective judgments that are more contingent, eclectic, and historically and culturally particular than the neat entailments of a comprehensive moral theory. My central claim is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to abstract moral principle but to our society's own understandings of our fundamental values.
In elaborating this thesis, I approach the issue of welfare rights through a novel application of the contrasting theoretical perspective developed by Michael Walzer in Spheres of Justice. (24) Whereas Rawls sought to elucidate transcendent principles of justice for an ideal society, Walzer proposed an account of distributive justice whose requirements take shape through the history, social practices, and shared understandings of a particular society. On Walzer's theory, fairness in the distribution of social goods cannot be specified by a general formula. It instead turns on the social meaning of each particular good--its nature, purpose, and value--as informed by the evolving culture and traditions of the society where it exists. Importantly, defining a just distribution by reference to shared understandings means that "ordinary men and women" in a given society may "know it concretely [and] realize it in fact." (25) For this reason, I argue, Walzer's theory provides an attractive paradigm for how courts should approach claims seeking recognition of welfare rights. Instead of invoking moral principles hypothetically agreed to by rational persons denuded of culture and social context, courts should interpret the shared understandings of particular welfare goods as they are manifested in the institutions, laws, and practices of our own society. (26)
Much of this Article is devoted to providing examples and exploring the implications of this interpretive approach. Three implications are worth noting by way of introduction. First, because the existence of any welfare right depends on democratic instantiation of our shared understandings, the judiciary is generally limited to an interstitial role within the context of a legislated program. Courts do not act as "first movers" in establishing welfare rights not merely because they have limited powers of enforcement as a practical matter, but because conceptually a welfare right does not come into being for a court to recognize without democratic instantiation in the first instance. Second, judicial recognition of welfare rights need not be thoroughgoing in the way that the logical principles of a comprehensive moral theory would suggest. Societal norms, traditions, and understandings vary over time and across social goods, and a constitutional doctrine of welfare rights should be sensitive to such variation. Third, because the shared understandings of a given society are ultimately subject to democratic revision and evolution, judicial intervention cannot fix the existence or contours of a welfare right for all time. As I argue below, the judicial role is best understood as part of an ongoing dialectical process by which legislative judgments are brought into harmony not with transcendent moral principles, but with the values our society declares its own.
Part I of this Article begins with a review of Michelman's On Protecting the Poor and sets up the basic question of judicial legitimacy in recognizing welfare rights. Part II examines Michelman's answer to the question in his subsequent work, In Pursuit of Constitutional Welfare Rights, and concludes that grounding constitutional adjudication of welfare rights in a comprehensive moral theory such as Rawls's is unlikely to further the democratic legitimacy of the judicial role.
Part III introduces an alternative account of judicial recognition of welfare rights that envisions courts as interpreters of the cultural and historical understandings that attend particular welfare goods. I show that traces of this argument are discernible in Michelman's own account of justiciable welfare rights, and I then draw on Walzer's Spheres of Justice to elucidate the conceptual character of welfare rights and its implications for the judicial role. After sketching some examples of this interpretive approach to welfare rights, I discuss the important limitations on judicial intervention that the approach implies.
Part IV addresses two objections: first, that the interpretive approach I propose is inherently conservative and insufficiently critical of existing social practices, and second, that the approach carries an intolerable risk that judges, in the name of interpreting society's values, will instead impose their own values on society. In the end, I argue that both dangers can be avoided when courts apply constitutional provisions such as the Equal Protection Clause or the Due Process Clause through a dialogic process with the legislature to ensure that the scope of welfare provision democratically reflects our social understandings.
Although my intent in this Article is not to offer a general theory of constitutional adjudication, I acknowledge that my argument at times seems to address the general problem of judicial review in a democratic society. The interpretive approach I propose coheres with an important body of positive and normative scholarship challenging the claimed autonomy of judicially declared constitutional law. (27) Indeed, the idea that constitutional doctrine integrates and expresses widely shared societal values retains its salience even in areas where constitutional text, history, and structure seem to authorize more robust and countermajoritarian forms of judicial review. (28) I will leave to another day an examination of the outer limits of this conception of the judicial role and instead focus my argument here on the modes of articulation and explanation appropriate for constitutional adjudication in an area where the courts have traditionally been vulnerable. As I hope the reader will glean as my argument unfolds, the judicial role I am contemplating is a modest one. Judicial recognition of welfare rights must derive its legitimacy from our shared commitments, and yet today we have no concerted war on poverty to speak of. In this area, as in many others, we cannot hope to change our law without first doing the hard work of changing our politics.
I. ON PROTECTING THE POOR
Written in the wake of the Civil Rights Movement and War on Poverty, On Protecting, the Poor sought to bring intellectual coherence to an emerging line of equal protection decisions loosely united by an anti-poverty thrust. Michelman's central insight was that the Supreme Court's jurisprudence, while conventionally understood as an attack on "wealth discrimination," more accurately reflected an overriding if inexplicit concern that all persons are entitled to a minimum, not necessarily equal, level of provision with respect to certain important goods. As he put it, "the judicial 'equality' explosion of recent times has largely been ignited by reawakened sensitivity, not to equality, but to a quite different sort of value or claim which might better be called 'minimum welfare.'" (29)
In elaborating this view, Michelman drew a distinction between "discrimination," the harm that lies in the stigmatic or dignitary offense caused by governmental classification, and "deprivation," the harm that lies in the nonsatisfaction of certain needs as and when they occur. (30) Although discrimination and deprivation often go together, the two concepts differ in important ways. First, the remedy for deprivation "need not entail or suggest any 'equalization' of treatment or circumstances" of the sort typically sought as relief for discrimination. (31) Relieving deprivation may result in greater equality, but the core remedial principle is adequate provision rather than equalization. (32) Second, unlike discrimination, deprivation is "determined largely without reference to whether the complainant's predicament is somehow visibly related to past or current governmental activity." (33) A duty to remedy deprivation is less susceptible to limitation by a requirement of state action. Third, whereas claims of "discrimination against the poor" tend to draw into question the free-market premises of our social order, attacking poverty-related hardships as unjust "deprivation" is less radical. (34) On the minimum welfare view, "a state's duty to the poor ... is not to avoid unequal treatment at all, but rather to provide assurances against certain hazards associated with impecuniousness which even a society strongly committed to competition and incentives would have to find unjust." (35)
In articulating the minimum welfare thesis, Michelman sought to describe the underlying if unstated logic of judicial behavior in a set of equal protection cases purporting to target wealth discrimination. The leading example is Shapiro v. Thompson, which struck down a one-year state residence requirement for receipt of welfare benefits. (36) Although the Court rested its holding on the ground that the requirement deterred or penalized poor people in their right to interstate travel, (37) the validity of this rationale "depends upon the prior existence, in the state of former residence, of a public-assistance program to which the migrant had access." (38) Yet nothing in the opinion hints that the plaintiffs did receive or could have received welfare benefits in their original states of residence. And the Court never considered whether the residence requirement in fact deterred or penalized any person's decision to migrate.
The weakness of the travel rationale suggests that the heart of Shapiro lies elsewhere, and the Court left little doubt about its ultimate concern. The waiting period, according to the Court, denies impoverished migrants "welfare aid upon which may depend the ability of the families to obtain the very means to subsist--food, shelter, and other necessities of life." (39) In rejecting the state's interest in fencing out poor migrants who seek higher welfare benefits, the Court saw no reason "why a mother who is seeking to make a new life for herself and her children should be regarded as less deserving because she considers, among others factors, the level of a State's public assistance." (40) The result in Shapiro turns more intelligibly on the judicial intuition that need, not desert, is the only constitutionally valid basis for distributing welfare benefits, which is an indirect way of recognizing that welfare provision has constitutional significance.
Indeed, the travel rationale cannot explain why the Court, after Shapiro, upheld residence requirements for access to in-state tuition or divorce proceedings in state court (41) while striking down such requirements for access to state-funded medical care. (42) The answer, as the Court acknowledged in Memorial Hospital v. Maricopa County, is that "governmental privileges or benefits necessary to basic sustenance have ... greater constitutional significance than less essential forms of governmental entitlements." (43) There the Court recognized medical care to be "as much 'a basic necessity of life' to an indigent as welfare assistance," adding that
[i]t would be odd, indeed, to find that the State ... was required to afford [the plaintiff] welfare assistance to keep him from discomfort of inadequate housing or the pangs of hunger but could deny him the medical care necessary to relieve him from the wheezing and gasping for breath that attend his illness. (44)
As Laurence Tribe has explained, the language in Shapiro and Memorial Hospital emphasizing basic human needs "must be taken not as window dressing but as a window into the decisions themselves." (45)
In these and other cases, (46) the Court did not issue bald declarations of welfare rights or injunctions to create new welfare programs. Instead, the Court played an interstitial role within an existing legislative scheme, invalidating eligibility criteria unrelated to need and imposing procedural safeguards against withdrawal of benefits. Yet the Court's interstitial role should not obscure the existence and guiding influence of constitutional welfare rights in the logic of these cases. (47) Michelman's prescient articulation of welfare rights sounding in minimum entitlement, not unjust discrimination, stands as the enduring insight of On Protecting the Poor.
Beyond rationalizing the case law, however, Michelman's article had a normative ambition. His exposition of the minimum welfare view was laced with concern that focusing on "wealth discrimination" not only clouds understanding of judicial behavior but also introduces a host of conceptual and tactical problems. Conceptually, Michelman believed it was too narrow to frame the ills of poverty as wealth discrimination because "[a] severe ... absolute deprivation may beget no response unless a 'discrimination' suggestive of prevalent, institutionalized, relative deprivation is also present." (48) At the same time, a doctrine against wealth discrimination would be too broad in at least two respects. First, because it "responds to relative deprivation, even [where] the presence of ... severe absolute deprivation is doubtful," (49) the doctrine would have difficulty distinguishing the needs of the poor from the claims of the nonpoor who plausibly suffer wealth discrimination when compared to the rich. Second, the doctrine logically leads to "a kind of disparagement of pricing practices" instead of targeting "nonsatisfaction of a particular want." (50) Given the ubiquity of pricing practices, actionable wealth discrimination would seem to infect a limitless range of goods from the essential to the trivial. A rule that "appl[ies] non-selectively to the pricing practice and refer[s] not at all to any exceptional attributes in the excepted commodities" (51) cannot answer the question "why education and not golf?" (52)
Tactically, for judges, advocates, and scholars sympathetic to the plight of the poor, the latter concern is what worried Michelman the most. Wealth discrimination, he observed,
is usually nothing more or less than the making of a market ... or the failure to relieve someone of the vicissitudes of market pricing.... But the risk of exposure to markets and their "decisions" is not normally deemed objectionable, to say the least, in our society.... We usually regard it as both the fairest and most efficient arrangement to require each consumer to pay the full market price of what he consumes, limiting his consumption to what his income permits. (53)
Michelman warned the Court that, unless it planned to radically alter our market system, judicial opinions with loose language condemning "discrimination against the poor" would generate only false hopes and "mistakenly heard promises." (54) Moreover, he saved his firmest admonition for welfare advocates and scholars eager to make the Court into an "instrument of income equalization" through claims of "discrimination against the poor." (55) Such an approach was "tactically ill-advised," he said, in light of "the possibility that judges specially sensitive to the overbreadth of that formulation will be deterred by its recital from recognizing claims which might have been acceptable if presented without invoking it." (56)
Interestingly, Michelman never made clear in On Protecting the Poor whether he believed the minimum-welfare view or the free-market premises of our economy are, in an ideal sense, fundamentally just. He briefly suggested that the minimum welfare thesis coheres with John Rawls's notion of justice as fairness, but at that time (two years before the publication of A Theory of Justice) Michelman did not clearly endorse or engage the merits of Rawls's theory. (57) Instead, Michelman's perspective in 1969 was suffused with lawyerly pragmatism. He discussed free enterprise and its inherent inequalities as widely accepted and immovable facts of our social order (58) and then asked, given these facts, what the appropriate role of courts might be in addressing the hardships of poverty. In answering this question, he sought to cabin the theoretical reach of the Court's emerging antipoverty jurisprudence in order to forestall its own undoing. Attentive to the limits of the judicial role, and fearing that an expansive doctrine of economic equality would eventually collapse on itself, Michelman urged a less-is-more approach to welfare rights that "is insistent upon getting what is basic, but is outspokenly explicit in claiming nothing more." (59) He appealed to judicial modesty in characterizing the Court "not as nine (or seven, or five) Canutes railing against tides of economic inequality which they have no apparent means of stemming, but as a body commendably busy with the critically important task of charting some islands of haven from economic disaster in the ocean of ... free enterprise." (60)
A final observation will take us to the core of the present inquiry. Michelman's normative thesis in On Protecting the Poor, while robust and persuasive, is properly stated in a conditional form: justiciable welfare rights should respond to claims of deprivation rather than discrimination if welfare rights are justiciable at all. If this last qualifier appears somewhat unexpectedly, it is because we have assumed up to now (or we have assumed that Michelman assumed) the legitimacy of judicial decisions responsive to the minimum welfare thesis. However, Michelman did not address this point in On Protecting the Poor. His argument was that welfare rights are more justiciable when conceived as claims of minimum protection than as claims of wealth discrimination. But he did not show that claims of minimum protection are properly justiciable in and of themselves. Even if the minimum welfare thesis envisions the courts in a more modest role, is it modest enough? Even if "alleviating specific deprivations is a much more manageable task than closing the general inequality gap to acceptable dimensions," (61) is it manageable enough? On Protecting the Poor left these questions unanswered.
Michelman clearly recognized the necessity and difficulty of this last step in the argument. Early in the article, after posing various questions concerning the existence and scope of minimum welfare rights, he dropped this footnote: "This article is part of a continuing study which has as one of its aims the discovery or development of criteria for answering such questions, in a form suitable for judging. I do not warrant that it can be done." (62) So we now arrive at the central question of this Article as well as the departure point for Michelman's next work: how, if at all, can welfare rights be conceptualized so that the assertion and contestation of such rights occur "in a form suitable for judging"?
II. ONE VIEW OF RAWLS'S THEORY OF JUSTICE
The dissenting Justices in Shapiro and kindred cases were quick to emphasize the undemocratic nature of the Court's decisions on behalf of welfare rights. The foremost critic was Justice Harlan, who argued that the doctrinal currents in Shapiro "would go far toward making this Court a 'super-legislature.'" (63) The Court is not entitled, he said, "to pick out particular human activities, characterize them as 'fundamental,' and give them added protection under an unusually stringent equal protection test." (64) The theme of judicial illegitimacy likewise appeared in academic commentary contending that "interventions by the Court in the name of the reduction of economic inequality" should be seen "more as a seizure of power than a legitimate exercise of judicial review." (65) The Court's efforts to constitutionalize notions of economic justice prompted Ralph Winter to remark, "Make no mistake about it, Lochner v. New York is alive and well in Shapiro v. Thompson." (66)
Partly in response to these concerns, Michelman in 1973 published his less famed but more theoretically engaging article, In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice. (67) As the title implies, Michelman sought to examine
this not-so-philosophical question: How does [A Theory of Justice] bear upon the work of legal investigators concerned or curious about recognition, through legal processes, of claimed affirmative rights (let us call them "welfare rights") to education, shelter, subsistence, health care and the like, or to the money these things cost? (68)
By the end, it is clear that Michelman sees in Rawls's work not only a departure point but also a destination for the question he wants to answer. Rawls's theory of justice, Michelman contends, offers a promising framework--the most promising framework available--for elucidating the content and legitimacy of justiciable welfare rights. (69)
The first half of the article addresses "whether [Rawls's] principles of justice have a substantive content which points to welfare rights and, if so, what specific shape these rights might take." (70) I shall not be concerned with this discussion, except to note that Michelman makes a convincing case that minimum welfare rights flow more easily from the lexically prior principles of equal basic liberties and fair equality of opportunity (71) than from the Rawlsian precept most often associated with distributive justice, the difference principle. (72) For present purposes, I shall accept Michelman's general conclusion that "[t]he social minimum is an implication of justice as fairness taken as a whole theory" and that the principles chosen by representative persons in the original position to govern the basic structure of society would provide "adequate assurance ... for what one specifically needs in order that his basic rights, liberties, and opportunities may be effectively enjoyed, and his self-respect maintained." (73)
In the second half of the article, Michelman takes up the question left hanging in On Protecting the Poor: assuming the Rawlsian social contract entails certain welfare rights, on what grounds is judicial review a legitimate vehicle for recognizing and enforcing such rights? This question will be my focus here.
A. Judicial Review in Ideal and Nonideal Theory
Michelman's first step in examining the judicial role is to observe that the welfare rights implicit in Rawls's principles of justice are implicit in an ideal theory of justice as fairness. (74) In ideal theory, the principles of justice are those that govern "a well-ordered society"--that is, a society "designed to advance the good of its members and effectively regulated by a public conception of justice," a society "in which everyone accepts and knows that the others accept the same principles of justice, and the basic social institutions satisfy and are known to satisfy these principles." (75) Rawls insists that the principles of justice be "public" in this sense because he believes that mutual recognition of the principles and the conformity of institutions to them will reinforce the desire of the citizenry to act as the principles require. (76) According to Rawls, the "stability" of the principles of justice is one of the main reasons they would be chosen by persons in the original position. (77) In a well-ordered society whose institutions are publicly known to satisfy justice as fairness, "those taking part in these arrangements acquire the corresponding sense of justice and desire to do their part in maintaining them." (78)
Michelman is quick to note that judicial review of welfare rights fits uneasily in the well-ordered society of Rawls's ideal theory. Although courts may play a legitimate role in statutory interpretation, on what basis can they disturb legislative judgments on constitutional grounds in a society whose members have a well-developed, publicly affirmed, mutually reinforcing sense of justice? The stability of justice as fairness means that the legislators in a well-ordered society, like the citizenry they serve, have internalized the principles of justice and "must tend to act in such a way as to make judicial review superfluous." (79) It also means that, in cases of legislative error, the public sense of justice is strong enough to bring the system back to equilibrium in a self-regulating manner. (80) Under ideal conditions, there is no reason why judges should be thought to have greater technical or moral competence in securing welfare rights than "conscientious legislators" imbued with a sense of justice. (81) Further, judicial review exacts a social cost by undermining political liberty and eroding the public "'sense of duty and obligation upon which the stability of just institutions depends.'" (82)
This much of Michelman's analysis seems sound. But what about the role of judicial review in an imperfect society that is not fully just and where the public sense of justice is underdeveloped? Here, as a matter of "'non-ideal' theory," (83) Michelman argues that justiciable welfare rights are intuitively plausible as a corrective device. In Rawls's four-stage sequence for applying the principles of justice, (84) the framers at the constitutional stage--knowing that strict compliance with the principles of justice cannot be assumed--would be justified in establishing remedial measures, including substantive welfare rights and judicial review, to set the society on a path toward greater realization of justice as fairness. Michelman remains aware of the cost to equal political liberty exacted by judicial review, as well as the risk that...
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