Dorothy E. Roberts, 
excerpted from
Welfare and the Problem of Black Citizenship , 
105 Yale Law Journal 1563 -1602, 1576-1584 (April, 1996)
(216 Footnotes Omitted) Book Reviews: Pitied But Not Entitled: Single Mothers and the History of Welfare. by Linda Gordon. New York: the Free Press, 1994. Pp. viii, 419. $22.95; The Color of Welfare: How Racism Undermined the War on Poverty. By Jill Quadagno. New York: Oxford University Press, 1994. Pp. viii, 240. $24.00

One way of understanding the injustice of the current welfare system is to examine how its stratified structure distinguishes between citizens and subjects. Citizens, primarily wealthy and middle-class white Americans, receive government assistance as a dignified entitlement. Subjects, who are disproportionately Black, are stigmatized as undeserving recipients of public charity. I explore in this part several ways in which the form of government aid known as welfare denies to recipients the rights of citizenship.

A. The Distinction Between Citizens and Subjects

The stratification of our welfare system that distributes benefits according to race and gender also differentiates between two classes of inhabitants -- citizens and subjects. Citizens receive welfare as an entitlement: Government has an obligation to support citizens as compensation for their social contribution or as a prerequisite to their full participation in political and economic life. For example, the government pays citizens Social Security benefits that are unencumbered by behavioral conditions, caseworker investigations, or social stigma.

Subjects, on the other hand, receive inferior, inadequate, and stigmatizing relief at the government's discretion. Poor mothers who receive AFDC, for example, are considered unworthy of government assistance; their benefits, set below the poverty level, are conditioned on conformance to behavioral rules and submission to government inspection. This surveillance of welfare recipients' everyday lives is so contrary to the government's respect for citizens that it unmistakably marks these families as government subjects. Black organizers who agitated for relief entitlements during the Depression suggested that the investigation of applicants' morals was a violation of citizenship rights. One complained:

"Your Administrators here in Baltimore take it upon themselves to inquire into the morals of the applicant. . . . The writer does not believe that the letter of the Relief law, or even its spirit gives the Administrators that authority. May I mention that in France, to hold a moral inquest upon the applicant for aid is forbidden by law." Given this connection between citizenship and entitlement to welfare, it is not surprising that current welfare reform proposals include the elimination of public assistance for undocumented immigrants.

The critical difference between these two forms of welfare lies in their relation to individuals' autonomy. While welfare for citizens enables them to be self-ruling persons, welfare for subjects enables the government to rule them. Gordon makes this distinction in her defense of welfare entitlements: "Citizens have rights to which they are entitled by law, and losing this understanding endangers the republic. . . . Moreover, the feeling of entitlement is also vital to the republic. It is the attitude of citizenship, the essence of independence; without it we would have subjects, not citizens."

The very relegation of subjects to inferior programs that supervise and humiliate them reinforces their lack of citizenship qualities while bolstering the virtues of the citizens who receive dignified entitlements. Citizens' compensation by social insurance makes them appear independent and self- sufficient; subjects' receipt of charity makes them appear dependent and irresponsible. Current welfare reform rhetoric condemns mothers who receive AFDC for transmitting a pathology of "welfare dependency" to their children. According to this view, reliance on this form of welfare reflects a lack of work ethic and leads to a myriad of social problems, including crime, unwed motherhood, and long-term poverty. Yet Americans do not view reliance on Social Security as "dependency" at all, despite the program's strong redistributive effects and the millions of nonworking wives and children who in fact depend on its benefits for subsistence. Gordon gives the following example of the downward-spiraling process that results from stigmatizing welfare recipients:

The stigmas of "welfare" and of single motherhood intersect; hostility to the poor and hostility to deviant family forms reinforce each other. The resentment undercuts political support for the program, and benefits fall farther and farther behind inflation. The resulting immiseration makes poor single mothers even more needy and less politically attractive. The economic downturn of the last decade has deepened both the poverty and the resentment, and created the impression that we are experiencing a new, unprecedented, and primarily minority social problem. Thus, Black single mothers' inferior status in the welfare state has intensified their political and economic marginalization, making them even less worthy of citizenship rights. By casting their need for public assistance as "dependency," welfare reform rhetoric suggests that these women lack the independence required to be citizens, entitled to dignified government support.

B. Welfare as a Waiver of Privacy

One of the key differences between welfare extended to citizens and welfare extended to subjects is the degree to which each conditions its benefits on government intrusion into recipients' privacy. Public relief for single mothers is structured to permit bureaucratic supervision of clients in order to determine their eligibility based on both means and morals testing. Citizens avoid these impositions because they receive their benefits in the form of entitlements that are not subject to the discretion of caseworkers, supervisors, or administrators. Since welfare's inception, states have conditioned payments on mothers' compliance with standards of sexual and reproductive morality, such as "suitable home" or "man in the house" rules. More recently, welfare mothers have been required to undergo mandatory paternity proceedings involving state scrutiny of their intimate lives. Over the last three years, at least thirty states have applied for federal waivers allowing them to change their welfare programs to incorporate a form of behavior modification.

Means testing and morals testing allow welfare bureaucrats to place recipients under surveillance to check for cheating or lapses in eligibility. Such testing also forces recipients to assume a submissive stance lest offended caseworkers cut them from the rolls. A Black domestic's experience with poor relief in the 1930s remains typical of welfare recipients today:

"The investigators, they were like detectives, like I had committed a crime. . . . I had to tell them about my life, more than if I was on trial . . . the investigator searched my icebox . . . I was ashamed of my life . . . that's how you're made to feel when you're down and out like you're nothing better than a criminal."

Privacy doctrine does not shield from state intrusion people who receive welfare as subjects; rather, their acceptance of government benefits constitutes a waiver of privacy. Because families are not entitled to government support, the Supreme Court has reasoned, the government may force them to open up for inspection, shrink, rearrange, or break up in order to qualify for benefits. Courts sometimes find egregious invasions of poor families' privacy to be unconstitutional, but most of the day-to-day decisions of family life remain vulnerable to legitimate state supervision. While poor single mothers (subjects) must endure government surveillance for their paltry benefits, "self-sufficient" traditional families (citizens) receive huge public subsidies -- Social Security, tax breaks, and government-backed mortgages -- without any loss of privacy.

The Supreme Court invalidated early welfare eligibility requirements, such as AFDC's "man in the house" rule, designed to "legislate morality" of recipients. Other precedents, however, affirm the state's power to condition eligibility for benefits on conformity with majoritarian family norms. In Dandridge v. Williams, for example, the Court upheld Maryland's regulation that placed an absolute cap of $250 monthly per family, regardless of the family's size or financial need. The Court found that the state's interest in encouraging employment was a sufficiently rational reason to defeat recipients' equal protection challenge. The Court rejected the objection that some families had no employable member on the ground that "the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all."

Nor do welfare recipients fare well under the unconstitutional conditions doctrine, which provides that the government may not condition the conferral of a benefit on the beneficiary's surrender of a constitutional right, although the government may choose not to provide the benefit altogether. The Court has avoided the unconstitutional conditions problem in cases involving public assistance to the poor by distinguishing between direct state interference with a protected activity and the state's mere refusal to subsidize a protected activity. The former, the Court concedes, raises a constitutional issue because it involves state action, whereas the latter is a constitutionally insignificant failure to act. For example, the Court refused to require the state or federal governments to pay the cost of abortion services for poor women, even though they pay for the expenses incident to childbirth, reasoning that "[a]lthough government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation." By regarding welfare benefits as an undeserved subsidy, the Court allows the state to treat recipients as subjects whose behavior may be modified to fit current social policy.

C. Welfare and Conditions on Reproduction

The goal of some welfare reform proposals is to discourage poor women from having children. These measures include both "family cap" legislation, which denies additional benefits for children born to women already on welfare, and proposals for cash bonuses to encourage these women to use Norplant. This degree of government control over reproductive decisionmaking would surely amount to a violation of citizens' procreative liberty if imposed directly by law. Protection of such deeply personal matters from government intrusion is "[a]t the heart of liberty." I have described government restrictions on procreation as a form of dehumanization:

The right to bear children goes to the heart of what it means to be human. The value we place on individuals determines whether we see them as entitled to perpetuate themselves in their children. Denying someone the right to bear children -- or punishing her for exercising that right -- deprives her of a basic part of her humanity. When this denial is based on race, it also functions to preserve a racial hierarchy that essentially disregards Black humanity. In thinking about welfare's relationship to citizenship, I have come to view provisions designed to deter welfare recipients from having children as another denial of citizenship rights. One of the privileges of citizenship is the ability to contribute one's children to the next generation of citizens. Subjects, on the other hand, are considered unworthy of adding their offspring to the national community. This aspect of citizenship explains, as well, the present campaign to deny automatic citizenship to children born in the United States of undocumented immigrant parents.

D. Welfare and Forced Labor

Welfare work policies also reflect the distinction between citizens and subjects. Welfare for citizens addresses defects in the economic structure in order to protect citizens' economic security. Welfare for subjects, on the other hand, attempts to change the individual's character in order to improve her motivation or ability to work. The most popular welfare reform provisions are those that attempt to end welfare dependency by requiring recipients to work at government-created jobs or by cutting off benefits after a set period of years.

Programs that force recipients to perform menial labor for subsistence benefits resemble involuntary servitude more than the creation of meaningful work. Work programs cannot possibly enable untrained and poorly educated women to achieve financial self-sufficiency, especially in an economy structured against women and with diminishing demand for unskilled workers. Any work disincentive that exists for welfare mothers is caused not by overly generous welfare benefits, but by the miserable conditions of available full-time jobs: poverty wages, loss of welfare benefits, and inadequate child and health care. In the end, workfare programs leave poor mothers worse off economically because they remain at the same AFDC level but incur the added costs of going to work. Treating AFDC recipients as citizens rather than as subjects would require dramatic economic and social changes, including aggressive job creation, a higher minimum wage or a guaranteed minimum income, subsidized child and health care, and elimination of inequalities in the labor market.

Pitied But Not Entitled and The Color of Welfare reveal how welfare policy was structured to maintain a Black menial labor force. The fear that welfare would allow recipients to resist poverty wages was a chief justification for excluding Blacks from New Deal welfare programs and opposing guaranteed-income proposals during the 1970s. As one Georgia Democratic Congressman warned in opposition to President Nixon's guaranteed- income proposal, " 'There's not going to be anybody left to roll these wheelbarrows and press these shirts."' In addition, welfare officials used work programs as a source of Black labor to fill degrading jobs. The subsequent "deindustrialization" of the U.S. economy has rendered Black menial labor largely superfluous and cast the masses of Black Americans even further from citizenship status.