Document Type

Article

Publication Title

Fordham Law Review

Abstract

Using state constitutional welfare rights as an example, this Essay argues for an independent state constitutional discourse that resists simply mapping state judicial practice onto federal doctrine. I have explored some of these issues elsewhere. My methodology here consists of a case study of Article XVII of the New York Constitution, a Depression-era provision that guarantees the "aid, care and support of the needy."' The New York Court of Appeals has interpreted Article XVII to impose "a positive duty upon the State," but to grant the legislature almost unreviewable "discretion in determining the means by which this objective is to be effectuated, in determining the amount of aid, and in classifying recipients and defining the term 'needy.'" Lower courts, faced with challenges to the adequacy of state assistance, have uncharacteristically criticized the Court of Appeals for too narrowly construing the legislature's duty to effectuate Article XVII, as well as the judiciary's own power to redress state constitutional violations. Other state courts, construing their state constitutional welfare provisions, similarly have remitted questions about the adequacy of welfare assistance to politics, according strong deference to legislative policy making in this area. Such an approach, this Essay contends, inappropriately relies on federal practice-which conventionally views a constitution as a source of negative restraint on legislative power - and so misapprehends the role of legislative discretion in a regime of positive constitutional rights. As applied to Article XVII, this approach also overlooks the New York provision's motivating concerns as reflected in the state constitutional history. Parts I and II of this Essay offer an alternative reading of Article XVII's text and history on the view that a state constitution comprises not only a set of negative restrictions on government, but also a set of substantive commitments that government owes to its citizens. Part III presents four themes that ought to frame discussions about the role of state constitutional welfare rights under the 1996 Act. Part IV is a brief conclusion that urges state courts to draw from unique state sources in developing an independent and principled approach to their interpretation of state constitutional welfare rights.

First Page

1403

Volume

67

Publication Date

1999

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