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Friday, September 1, 2006

Column: Fare Thee Well

A flurry of recent articles announced new “federal welfare rules” that will go into effect October 1. These rules represent the first update to the massive overhaul of the US welfare system signed into law by President Clinton in 1996.

The new rules (which require welfare recipients to engage in certain work activity in order to receive benefits) have generated untold controversy on both sides of the aisle. Supporters say the welfare rolls will go down; opponents say poverty will go up. But one vital question has been strangely overlooked in the midst of all the political squabbles: why are the laws governing public assistance invariably referred to as welfare laws?

After all, the program affected by the new regulation is called TANF (Temporary Assistance for Needy Families) not “welfare.” There is no “federal welfare act” or “federal welfare program.”

An Ambiguous Clause

Welfare does appear twice in the Constitution: but in neither case does the word expressly refer to anti-poverty programs. The Preamble describes the purpose of the Constitution “to form a more perfect Union, to establish Justice [and to] promote the general Welfare.”

Article 1 of the Constitution authorizes Congress to pass laws to “provide for the . . . general Welfare of the United States; . . .” Unlike the Preamble, this is not a mere statement of aspiration, but a grant of power.

Almost as soon as the ink was dry on the Constitution, debate erupted over the meaning of the so-called Welfare Clause of Article 1. Alexander Hamilton argued that the Welfare Clause gave Congress an independent right to pass any sort of law that would tend to benefit the nation as a whole, as distinct from laws of purely local interest.

James Madison disagreed. To him, the Welfare Clause was not a distinct federal power. The proof? The fact that “general Welfare” is separated from the more specific powers of Article 1 by a mere semicolon. History does not record Hamilton’s rejoinder to this point, so we are left with the tantalizing possibility that these two Founders may have had furious knock-the-powder-out-of-your-wig arguments about the significance of a semicolon.

The Supreme Court finally settled the question in Helvering v. Davis, a 1937 lawsuit involving the granddaddy of all American welfare programs, the Social Security Act of 1935. The plaintiff had challenged the Act as an unlawful expansion of congressional power. The Court upheld the Social Security Act as an example of Congress’s authority to pass laws “to promote the general welfare.” Justice Cardozo pointedly remarked: “Nor is the concept of the general welfare static. . . What is critical or urgent changes with the times.”

Fare’s Fair

The fact that the Welfare Clause forms the legal basis for the federal welfare system appears to be a coincidence, linguistically speaking. To the Founding Fathers “welfare” did not refer to government programs, but rather conveyed a more general sense of well-being or prosperity. The word is recorded as early as the 14th Century, meaning to fare (i.e., to go, or to take one’s leave) well. It has the same roots as farewell, but just in reverse order.

Welfare began to take on its modern meaning of “a benefit provided to the needy” in the early 20th Century. At first, it applied to the paternalistic efforts of large companies, which sometimes hired “welfare officers” who arranged various services for employees. This sense is preserved in the statutory term Employee Welfare Benefit Plan – which is a type of plan protected under the 1974 Employee Retirement Income Security Act, or ERISA.

By the First World War, welfare was being applied to various services provided to the public at large, giving rise to such terms as welfare center (1917) and, later, welfare clinic (1937). When legislation in the US and UK established government-sponsored benefit programs, it was natural enough that such programs would be referred to as welfare. Before long, people were talking about a welfare state (1941), a term that was initially admiring, but later disparaging.

And yet, lawmakers have historically been reticent about using the term welfare when establishing relief programs. Even the 1996 overhaul – which is commonly referred to as the “Welfare Reform Act” – is actually called the Personal Responsibility and Work Opportunity Reconciliation Act. With a few exceptions (child welfare, for example), the word welfare is too vague for the law, which tends to speak of specific programs – the bureaucratic alphabet soup of TANF, AFDC, SSA, SSI, SCHIP, EA, CCDBG, CCDF, CETA, EOA, EITC, and QWERTY. Okay, not the last one.

As a legal term, welfare did achieve a degree of recognition in 1953 with the creation of the federal Department of Health, Education and Welfare (HEW). But this lasted only until 1979 when HEW was transformed into the Department of Health and Human Services. You will have noticed that the government dropped “welfare” from the new department’s name – but they helpfully added “human” to modify “services,” just in case, say, squirrels began to feel a sense of entitlement.

That’s Why the Lady is a Tramp, Your Honor

Before welfare became a quasi-legal term, laws relating to poverty were known, with a certain lack of euphemism, as Poor Laws. These were a patchwork of old English and American laws dating back to Elizabethan times.

The Poor Laws had two elements. One was the giving of “relief” to the poor. Relief consisted of either indoor relief, which required the recipient to enter a workhouse or similar institution; or outdoor relief, which simply meant giving cash or food to poor people.

The other, seemingly contradictory, component of the Poor Laws was the punishment of poor people. It wasn’t exactly a crime to be poor – unless you were deemed fit to work. The law assumed that any beggar who was capable of working must have chosen to beg. Such people were referred to as sturdy beggars, sturdy vagabonds, or simply as rogues. These were technical legal terms. A legal dictionary of 1607, for example, lists the offenses of being a “Roag [rogue] of the first degree” and “Roag of the second degree.” The punishment for repeat roguery was death.

Before you laugh this off as a relic of history, you might take a glance at the official website of the Massachusetts legislature. Apparently, it is still a crime in the Bay State to be a vagrant or a vagabond; the former being a beggar, the latter a person who steals or acts “in a suspicious manner.”
For those who don’t fit into either category, Massachusetts has a separate offense of being a tramp. The criminal code provides that “an act of begging or soliciting alms [charity] . . . shall be prima facie evidence that such person is a tramp.” To which, we might add, so is carrying one’s possessions in a bundle tied to the end of stick and wearing a rumpled porkpie hat.
The Massachusetts law probably would not survive a court challenge today. New York’s vagrancy law was held unconstitutional as long ago as 1974. Other state laws have suffered a similar fate. The leading case is Papachristou v. City of Jacksonville (1972) in which the Supreme Court struck down a Florida law that targeted not only rogues and vagabonds, but also habitual loafers (a term that, sadly, went undefined).

In giving the court’s opinion, Justice Douglas quotes Henry David Thoreau’s essay in praise of sauntering, which, according to Thoreau, comes from the French Sainte Terre (Holy Land) because medieval vagabonds would beg for alms under the pretense of going to the Holy Land. Presumably Douglas was trying to emphasize the harshness of the old Poor Laws – they even prohibited sauntering!

As a legal matter, of course, this was pure dictum. But the Supreme Court was looking to bury the Florida law. Which they did – to a fare-thee-well.

This column originally appeared in the September 2006 issue of New York Law Journal Magazine.