Welfare Rights in a Constitutional Democracy

Stanton D. Krauss and Frank I. Michelman

Commentary—The Impossibility of Finding Welfare Rights in the Constitution

Robert H. Bork and Jason A. Parson
The effect of Professor Michelman’s style of argument, which has quite a number of devotees on the faculties of both Yale and Harvard, is to create rights by arguments from moral philosophy rather than from constitutional text, history, and structure. The end result would be to convert our government from one by representative assembly to one by judiciary. That result seems to me unfortunate for a variety of reasons.

Commentary—Education as a Constitutional Entitlement: A Proposed Judicial Standard for Determining How Much Is Enough

Betsy Levin and Keith A. Rabenberg
I will examine whether finding an entitlement to education would stretch the equal protection clause beyond its meaning.

Commentary—Professor Michelman’s Quest for a Constitutional Welfare Right

Susan Frelich Appleton and Stuart J. Vogelsmeier
The Michelman thesis remains attractive, though elusive, and it is for this reason-because I want to be persuaded that it works-that I record these reflections.

Panel Discussion: Welfare Rights

Susan Frelich Appleton, Robert H. Bork, Betsy Levin and Frank I. Michelman

Changing Concepts of Equality: From Equality Before the Law to the Welfare State

Ralph K. Winter Jr.
Equality, or at least the rhetoric of equality, has been almost from the start a central issue in our society. The debate, however, has been a fluid one, because the society has shifted from the pursuit of one concept of equality to the pursuit of another. The former concept of equality I shall call equality before the law. The latter I shall call equality of social-political-economic status.

Commentary—Thoughts on State Action: The “Government Function” and “Power Theory” Approaches

Jesse H. Choper
I would like to make a series of observations (and develop a few) that I hope will advance, rather than further confuse, analysis of “state action.”

Commentary—Reflections on Discrimination in the Private Sector

Margaret Bush Wilson
I am inclined to think that we have shifted from the principle of equality before the law to an emphasis on what I call equal access to opportunity.

Panel Discussion: Reaching the Private Sphere

Jesse H. Choper, Margaret Bush Wilson and Ralph K. Winter Jr.

Judicial Administration of Equality and Liberty: From Declaration of Right to Restructuring Institutions

Archibald Cox
Rather than looking at what the courts have produced in the way of philosophy, principles, and concepts that comprise those sundry bodies of substantive law which attempt to implement the drive for equality, I consider the effect of the egalitarian thrust on the courts and the orders they enter, their role and functions, their procedures, and their relations with the executive and legislative branches.

Commentary—Some Reflections on the Judicial Role: Distinctions, Roots, and Prospects

Gerald Gunther
I will articulate some distinctions that seem important in thinking about the problems of the changing role of judicial institutions. I will suggest some differing identifications of the major historical roots of our current situation. Further, I will venture my own guesses about where we may be heading.

New Structures, New Attitudes, or Both: A Comment on Professor Cox’s Article

Lucius J. Barker

Proper Disposition of Seized Papers and Effects

Michael E. Geltner
This Article examines what the United States Constitution and other laws mandate with respect to seized property both before and after its use as evidence in litigation.

Sovereign Immunity in Missouri: Judicial Abrogation and Legislative Reenactment