Welfare and the Constitution.

By Sotirios A. Barber. Princeton: Princeton University Press, 2003. 184p. $27.95.

The Constitution's Preamble clarifies its founders' purposes, including their belief that the document would “promote the general welfare.” Sotirios A. Barber argues that this phrase obligates the national government to more actively promote the welfare of citizens, particularly children and the poor. From Barber's perspective, his book should not have to be written, as “some positive governmental duty … seems hard to deny” (p. xii). Compelling him to write are “prestigious and powerful” (p. xii) voices who say otherwise, including the Supreme Court in DeShaney v. Winnebago County Department of Social Services (1989). These “negative constitutionalists” claim that the national government's only obligation beyond ensuring that citizens can participate in the democratic process is to forgo hindering them, as required by the Bill of Rights. Barber attempts to refute this argument to show that “the Constitution is more a charter of positive benefits … than a charter of negative liberties” (p. 2).

Barber believes the Preamble commands “welfare constitutionalism.” Also allowing him to forgo textual analysis to establish this point is Michael Walzer's statement that every state is a welfare state (Spheres of Justice, 1983), which Barber takes as axiomatic. Some historical support for this welfarist view is provided, mainly from The Federalist, but the main focus of the book is to expose negative constitutionalism as untenable and disingenuous.

Barber portrays negative constitutionalism as pointless, because “it makes no sense to establish a government for the purpose of limiting the government” (p. 51). If there are no positive governmental obligations to citizens, then there is not even a right to police protection, an absurd result for him. Even Hobbesians would expect more. Furthermore, negative constitutionalists often rely on “welfare” arguments to justify their views, stating that it is better for individuals and society if citizens are not guaranteed a certain level of well-being. In truth, theirs is a welfarist conception of government, too, but one which does not acknowledge that truth or take citizens' needs seriously.

Since discussion must shape government's general welfare obligations, Barber eschews a definitive statement of its nature. He does, however, set certain parameters on the discussion itself. For instance, welfare claims must be secular because those based on religion cannot be justified by reason. Following John Rawls, he also posits that the general welfare cannot be found through utilitarian calculations. The general welfare must consider the physical and psychological needs of individuals as individuals, not as parts of an aggregate public. Barber borrows from Martha Nussbaum (“Aristotelian Social Democracy,” in Bruce Douglas, Gerald Mara, and Henry Richardson, eds., Liberalism and the Good, 1990) to sketch briefly the policy implications of his view, concluding that a reasonable concept of the general welfare will include universal health care, protection from preventable pain, humanistic education, “‘support for rich social relations,’” and protection of the environment (p. 114). Pursuing these objects “or something like them—something flowing from a persuasive theory of human well-being—are constitutionally obligatory on officials who swear fidelity” to a welfarist constitution (p. 115).

The strength of this book lies in its intuitive appeal. The world's richest nation has not looked after its most vulnerable members very well, after all. To mandate that the national government heed their welfare through constitutional fiat will strike many as a viable solution to the failure of the political process to do so. At the very least, Barber's exhortation that government officials have an obligation to give greater weight to the general welfare and less to particular interests is well taken. “Positive constitutionalism” may be one way to limit the influence of entrenched, narrow interests, particularly in mature democracies.

Also of value is Barber's thought-provoking perspective that the Constitution is inadequate to the task for which it was designed. He seems to hope for a communitarian rebirth that would place the welfarist view on a firmer footing than is possible under the present “bourgeois” Constitution, with its interests checking other interests.

The book's refutation of negative constitutionalism is of interest as well, but it is far from fully satisfying. Barber admits his difficulty in taking these arguments seriously. Given this, his critique is not dispassionate or sympathetic, of course, but it also does not seem to give these arguments their due, particularly when considering the practical consequences of the welfarist alternative. The DeShaney case might have been decided differently, granting citizens a right to government protection from harm at the hands of other citizens. However, such a decision would expose governments to a new class of lawsuits, significantly increase their insurance costs, and further limit the willingness of professionals and volunteers to work for the state. The result might well corrode the very services Barber hopes to see extended. Positive constitutionalism could be workable, but the case for it needs to be made positively. The author makes the case negatively, by skewering the logic of negative constitutionalists like David Currie.

Barber claims that both Publius and Lincoln endorsed welfarist readings of the Constitution. Only a thin version of this argument stands up to scrutiny. Hamilton, Madison, and Lincoln each felt that, rightly construed, the constitutional system would promote the general welfare. They each argued for specific provisions to be written into law to promote it as they understood it. But they were content to let statutory rather than constitutional law determine what government did to promote welfare, a position not fundamentally at odds with the negative constitutionalists. The practice of these statesmen suggests that there is an ethical obligation, but not necessarily a constitutional demand, on lawmakers to promote the general welfare. The dense, logic-based refutation of negative constitutionalism presented in Welfare and the Constitution will interest legal scholars. Unfortunately, it will probably not be accessible to a broader audience, particularly undergraduates, who would benefit from weighing the strengths and weaknesses of positive and negative constitutionalism.