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65 N.Y.U. L. Rev. 247 (1990)
Government Benefits: A New Look at an Old Gifthorse

handle is hein.journals/nylr65 and id is 267 raw text is: GOVERNMENT BENEFITS: A NEW LOOK AT AN OLD GIFTHORSE PATRICIA M. WALD* A state provides numerous governmental programs for the benefit of its citizens. If it denies access to such a program to particular individuals, can it be held constitution- ally accountable? Judge Wald explores this question in the context of fourteenth amendment due process and unconstitutional conditionsjurisprudence. respectively exemplified in recent Supreme Court cases such as DeShaney v. Winnebago County Department of Social Services and Ross v. Oklahoma. She argues that, in these and other recent decisions, the Supreme Court has resolved this question by making a dis- tinction between programs that secure constitutional rights and those that provide merely gratuitous benefits Judge Wald criticizes the Court's mechanical reliance on this distinction, which she thinks has allowed states to impose burdens on individuals attempting to exercise their constitutional rights. A better solution, Judge Wald con- cludes, would be for courts to employ a standard of review under which a state would have to show tha by denying access to one of its programs, it is substantially serving important state purposes related to that program. Tonight I am going to talk about an old problem in constitutional law: the volatile relationship between constitutional rights and govern- ment benefits. In my view, the jury-rigged doctrine of rights and benefits we are now living with deserves serious reconsideration. One aspect of that doctrine-unconstitutional conditions-may still be in flux but is moving swiftly backwards; another-fourteenth amendment procedural due process rights-seems static for the moment, mired in unattractive premises. In the current climate, many civil libertarians dread the idea of unsettling precedent. They would, in Hamlet's words, rather bear the ills we have, than fly to others that we know not of.1 Yet that atti- tude may be too timorous. As we pass through the bicentennial and enter the twenty-first century, we should not be afraid to propose changes in law or doctrine we believe are necessary-we must not accept as irreversible the battles we have lost in the past. I begin with two recent Supreme Court decisions. The first, decided this past term, is DeShaney v. Winnebago County Department of Social Services,2 a suit for damages under section 1983.3 The facts were these.4 infant Joshua DeShaney, placed in his father's custody after his parents' * Chief Judge, United States Court of Appeals, District of Columbia Circuit. This Article was delivered as the twenty-first James Madison Lecture on Constitutional Law at New York University School of Law on October 26, 1989. I wish to thank my law clerks, Malcolm Stewart, J.D., 1988, Yale Law School, and Jonathan Siegel, J.D., 1989, Yale Law School, for valuable help in the preparation of this Article. I W. Shakespeare, Hamlet, Act III, sc. i, lines 80-81 (Riverside ed. 1974). 2 109 S. Ct. 998 (1989). 3 42 U.S.C. § 1983 (1988). 4 See DeShaney, 109 S. Ct. at 1001-02. 247 Imaged with the Permission of N.Y.U. Law Review