Reason Magazine - Staff

Frontier Freedom

info@reason.com (Rick Henderson) info@reason.com (William H. Mellor III) — Wed, 01 Nov 1995 00:00:00 EST

In the introduction to The Almanac of American Politics 1996 , Michael Barone asserts that the election of 1994 signaled that the nation seems to be returning to a "Tocquevillian America, to something resembling the country that French aristocrat Alexis de Tocqueville visited in 1831 and described in his Democracy in America. Tocqueville's America was egalitarian, individualistic, decentralized, religious, property-loving, lightly governed."

Ironically, the elected official whose public statements and voting record may have most clearly articulated this new Tocquevillian vision retired in 1994. Republican Malcolm Wallop
had been the senior senator from Wyoming and had advanced a principled, limited-government agenda over his three terms.

In the mid-1980s, he argued that the Food and Drug Administration should be stripped of many of its regulatory powers, envisioning an agency that would, like a medical version of Underwriters' Laboratories, endorse high-quality drugs and medical devices but that could not prevent consumers from buying unproven remedies. He was a consistent tax cutter, leading a Senate revolt against George Bush's 1990 budget deal, much to the irritation of thenMinority Leader Bob Dole. And he served as a sounding board for individuals and business owners beaten down by government envi ronmental, safety, and financial regulations.

Wallop may be best known for his views on national security issues, many of which were ridiculed until the Soviet Union imploded. Before Ronald Reagan used the term "evil empire" to describe the former Soviet Union, Wallop regularly denounced the Soviets, saying arms-control treaties dignified communist regimes on the world stage and that the United States should try to topple communist dictators instead. He was an early advocate of strategic defenses and continues to support them enthusiastically. His 1987 book The Arms Control Delusion offered what turned out to be an accurate view of the Soviets' aggressive intentions even though the Cold War would soon abruptly end.

Most recently, Wallop served on the Bipartisan Commission on Entitlement and Tax Reform, the group headed by Sens. Bob Kerrey (D-Nebr.) and Jack Danforth (R-Mo.) that was charged with recommending changes in Social Security, Medicare, Medicaid, and federal pensions. When the commission issued a preliminary report in August 1994 spelling out the long-term fiscal shortfalls in Social Security, Wallop refused to endorse it, writing in a letter to Kerrey and Danforth, "I believe that no one is entitled to the earnings of others, and...the first step towards reform should be to dispel the notion that any social welfare spending is automatic and irrevocable." The 104th Congress is now contemplating changes that would terminate the open-ended entitlement status of Medicare and Medicaid.

Wallop briefly contemplated a campaign for the 1996 Republican presidential nomination, but the challenge of fund raising (and Wyoming's tiny base of three electoral votes) ended that quest. Had Wallop remained in the Senate, he undoubtedly would have aligned with such freshmen as Spencer Abraham (Mich.), Rick Santorum (Pa.), and Rod Grams (Minn.), aggressively anti-regula tion and skeptical of large-scale social-engineering schemes. But he's on the outside now, overseeing Frontiers of Freedom, an advocacy group he started to promote his issues while his presidential hopes remained alive.

Wallop spends about half his time working for Frontiers, the rest on his ranch in Wyoming.

REASON Washington Editor Rick Henderson and William "Chip" Mellor, president of the Institute for Justice, interviewed Wallop in the Arlington, Virginia, office of Frontiers in late June.

Reason: Over the past few years you have been identified as the champion of a number of issues that are suddenly starting to resonate: property rights, reform of the Endangered Species Act, entitlement reforms, national security issues. Where do these issues stand right now?

Malcolm Wallop: They're big issues from which political players are seeming to flinch. The property rights issue resonates all over America. It was in the Contract, and all of the sudden you see both the Senate and some House Republicans beginning to try to make cautious constraints on their erstwhile enthusiasm. I think it's a big mistake.

Reason: Are you suggesting that the "Republican Revolution" has stalled? Are you sounding a death knell for that revolution?

Wallop: No. I really don't think that. Stalled, or stuttered, perhaps. I don't find among the freshman class or others who were working on these issues before that there's any hesitation about where we want to go. If it is a death knell, I think it's the death knell for the leadership.

Reason: In the wake of an overwhelming mandate for dramatically reducing government intrusiveness, we see both the House and the Senate currently debating such proposals as a Constitu tional amendment to ban flag burning and national ID cardsissues that would seem to be at best a distraction from the election's mandate. Is this a failure of the leadership, something lacking in the Republican Party, or just a momentary distraction?

Wallop: These are distractions, and the worst part is that they are totally anti-Republican distractions. They are not the kinds of issues that Republicans ought to be wrapped around. Republi cans ought to be in the trenches opposing them.

We don't need a nation that has national identity cards. It's insanity for a party that believes in freedom to allow some Republicans to seize an agenda that is totally alien to the agenda that was established in the election. My class and above in the Senate is full of people who hear the old political music. Some of them have even said, "What revolution? I didn't see one."

This fall, with the reconciliation of the budget and debt limit, our leadership will be pushed back. If they are not pushed back, the [party's] new members will still be seriously devoted to these issues. And if the new members don't have their ideas accommodated by a major effort on the part of the leadership, then once again you're back to the point that I was talking about a year ago in National Review [the emergence of a major third party].

The Ross Perot phenomenon was not about a passion for a man with a squeaky voice and big ears. It was the belief that maybe politics-as-usual could be changed. There is no other explanation for such instantaneous support from 31 percent of the country.

When Ross Perot announced, the Bush people in the Republican Party didn't even remotely understand it. They said, "Well, since Perot said he wasn't going to run, all those votes will come back." They didn't come back. People had been liberated from that connection [to the Republican Party] and they were looking for a party that really had another idea about where government ought to go. Perot never really articulated that idea, but his vote didn't fall.

Republicans forget that we were born out of the ashes of the Whigs, a party in a time very much like this time, that could not take a position on the significant issue of the daythe abolition of slavery. The Whigs and the Democrats were two big-government parties who more or less accom modated each other and were arguing with each other about variations on a themewhich party would be the more kindly owners of slaves. It isn't that different from what the public perceives as the distinction between the Republicans and Democrats today.

Reason: You're a strong supporter of devolution, of decentralizing functions from the federal government down to the state or local level. What is the ultimate end in federalism?

Wallop: The ultimate end is a nation that lies under the concept of the Declaration of Indepen dence. The Declaration of Independence is such an extraordinary statementit was designed by people skeptical of government, local or national, but in particular national.

Then the Bill of Rights came along. The idea that government was supposed to be empowered by the people runs right through all those first 10 amendments. And the fascinating thing about that is that it's almost an instruction to stay skeptical. Not to believe the government has no place, but to believe that government's only place is the one that is generated by the will of the people, who are citizens of it, not subjects to it.

If the Republicans think that by having stated and even achieved most of the Contract that they are therefore entitled to the acceptance and favor of the American voter, they're crazy. We have a long way to go from the Contract to a government that accepts skepticism as part of its rationale, as part of its basis for governing.

You talked about national identity cards and the terrorism bill. We have made a government that has grown used to viewing us as subjects, has grown used to seeing its role as commanding us.

Reason: Congress has scheduled hearings on federal law-enforcement abuses at Waco and at Ruby Ridge. Could current elected officials or the press learn some lessons from these events?

Wallop: Oh yes. They already have. [FBI
director Louis] Freeh didn't demote [former Deputy Director Larry] Potts for any other reason than that these hearings were coming. ABC hasn't run a series of stories of how Waco might have ended in a surrender for any other reason than these hearings were coming.

Most Americans are frightened of their government. They're frightened of the IRS, they're frightened of the Federal Communications Commission, or the FBI, or the FAA, or whoever and whatever part of government happens to affect your life. People are actively trying to serve govern ment, lest it take notice of them. And they are resenting it big time.

The people are way ahead of politicians on this. And it's not rednecks, disaffected, disen chanted, angry white males, or militia men. It's ordinary people.

Look at the Endangered Species Act. You have this apparent contradiction: Seventy some percent of people say it's important to somehow maintain a specific species' presence on earth. But if you just ask if species, in general, ought to be preserved, nearly the same percentage of people say that you are entitled to be compensated for it, to have this burden of preservation shared with you by all the American people.

Until people are actually required to face that cost themselves, it's easier to think of property holders as being somebody like Donald Trump or some rancher than it is to think of somebody who owns 21/2 acres upon which they were going to build a retirement home.

But the Constitution doesn't distinguish between the stature of property holders. I was in trouble over the last couple of years of my tenure in the Senate because I was against the idea that the federal government would take the water rights of the Church Universal and Triumphant in Yellowstone to satisfy the public's natural desire to protect the geothermal features of Yellowstone. I was saying that it was up to Montana to determine whether under Montana law the church had a valid existing water right. If it did, and if the government said the church couldn't use the water because we want to protect creatures, fine, it's the government's obligation to buy the water rights.

I have absolutely no doubt that if that land- owner had been named Steven Jones, the issue would have been very clearof course the government has an obligation. The Church Universal and Triumphant was sort of an apocalyptic outfit and therefore not popular.

The previous owner of the water rights was Malcolm Forbes. I'm not even certain he would have had a comfortable political reaction, probably more comfortable than the Church Universal and

Triumphant, but people would say, "Hell, he could afford it."

Reason: The 1994 and the '95 crime bills have centralized law-enforcement powers, contra dicting the Contract's decentralist message. Might the Republicans reconsider their tendencies to nationalize law enforcement?

Wallop: Republicans are in a constant quandary. They believe in the security of their citizens, and they believe in the suppression of crime. And they live in Washington where crime is visible and the only way they can do anything about it there is through a federal police force. But they seem to have lost the notion of what a federal government is all about.

The idea that we would sit here and mandate the state penal code in order for states to qualify for funds for prison building and the idea of hiring 100,000 new police officersthese things don't make sense. Ruby Ridge and Waco may help the public relocate their ground. That's what happens when you have a national police force that is acting as a local police forceand in each instance they were.

Reason: In the areas of illegal immigration and drug enforcement, the federal government is considering a much broader use of the RICO law and asset forfeiture. Republicanswith no resis tance from Democratsseem to be absolutely determined to expand the use of both these law -enforcement tools. Is there any chance of getting them reined in?

Wallop: Well, there'd better be. Or again, I sense that here comes a third party. It's very easy for the Pat Buchanans and others of this world to fan the flames of anxiety of citizens about illegal immigration. And it's very easy for the Clinton people to propose and the Republicans to embrace the idea that the military might become one of the biggest assets we know of to address these issues.

I'm a big supporter of immigration. Republicans [make a mistake] when they think they're going to protect jobs by eliminating illegal or legal immigration. It is the obligation of the United States to protect its borders but it's far more important for that protection to come from a force that is organized for that specific purpose, namely the INS.

Reason: How about the drug war? In particular, abuses of the asset-forfeiture laws have real property rights implications.

Wallop: They do, and I'll tell youit was all right, in the minds of most Americans, to use RICO and asset forfeiture if they thought you were seizing the property of some Colombian. But when HUD starts using RICO as a challenge to Americans who disagree with it, then the forfeiture laws begin to take on another dimension. My guess is you cannot define them so specifically as to apply only to foreign drug lords.

When you've seen RICO-like provisions becoming part of the terrorist bill when we don't have a terrorist problem then it's time for Republicans and civil libertarians to say, "What the hell are you doing to the Constitution?"

Reason: Let's talk about national security issues. Bosnia is collapsing as we speak, Republi cans are clearly skeptical about direct intervention there. What should the U.S. response be?

Wallop: On the one hand you have the president and leaders of both parties expressing anxi eties about pictures on television and the news of ethnic cleansing and on the other hand you have a sitting Democrat president and the previous Republican president unwilling to put American con cepts in play, [instead] using the U.N. as an excuse for a lack of national policy.

The best thing that has happened is that we have validated the idea that there's no such thing as a multinational force or purpose unless one of the group is ready, willing, and able to do it all by itself. The utter incompetence of the U.N. is literally incomprehensible.

Reason: Should the United States withdraw from the United Nations?

Wallop: Yeah. Certainly for any security reasons. We might want to stay in it for the World Health Organization or other reasons not related to security. But the U.N. is becoming a very articu late tool for national decline. We can't do anything without their permission, yet we are unwilling to have them command our troops, yet we are willing to commit our prestige to their judgment. And they can't find a way to act on their own, when their own prestige has been threatened by lack of judgment or an inability to make decisions.

Reason: What general principles do you believe justify military involvement abroad?

Wallop: Historically, this has been a country that operated more surely when it had a doc trinewhether it was the Monroe Doctrine or the containment doctrine or any number of other kinds of doctrinesand very unsurely when it didn't have one or had renounced one.

Doctrines provide an architecture for both Republican and Democrat presidents to carry out policies. They weren't the same from Truman to Kennedy. Eisenhower, Nixon, Fordall of them had a little different idea of what containment was about, but as a general principle, containment of communism was something that appealed to the American people and was the basis upon which a military and foreign policy structure could be invoked.

So with the end of the Cold War, it became increasingly obvious that there was no basis upon which any decision was being made, not in the White House, and certainly because of that, not in the Congress. The defense budget became increasingly a function of the defense of the local economy and had nothing to do with any military purpose.

In 1990, well before the Gulf War, I went to ask President Bush to put together a new American doctrine. [National Security Adviser Brent] Scowcroft was there and I was very skeptically re ceivedeven with some sort of cynical amusement. They said containment had been necessary because the Soviets had exploded a nuclear bomb, or were about to get the hydrogen bomb, but nothing like that is going on now.

In the few short minutes before I was laughed out of there, I tried to explain that America needed to define its interests. I don't think they're very difficult to define. The first, foremost obliga tion is defense of the homeland. No problem there, I think everybody agrees on that.

We are a trading nation. We need access to our markets and we need for those markets to be reasonably secured. If they're not, we can't trade.

We are a communicating nation which needs access to space, access to the seas.

We are a studying nation. Scholarship from science is important to the whole world and those people need to be able to be safe and secure in what they do.

Our hemisphere is quite important. If there's not security in our hemisphere, there's not secu rity in the homeland.

Finally we are a nation with some conscience. It means alliances are extremely important when they're based on a national interest. We have to have the ability to sustain our presence within those alliances...

Reason: You mean like NATO?

Wallop: ...particularly like NATO, but not an expanded NATO that has no idea of what its role is in the world. The idea that Russia would be part of NATO is to say that NATO doesn't have any relevance to us and our national interest anymore. If NATO wants to have a security arrangement with Russia, that's a little different thing than having Russia part of NATO.

The certain, powerful presence of the United States provides an enormous economic lever to us. When I said this the second time to Bush in late June or early July of '92, he sort of laughed at it, and said, "I don't want to be the world's policeman." I said, "We don't have to be the world's police man, but how would you like to live in a world with n o policeman?"

Reason: There are clear differences in the lifestyles of the Eastern and Western United States. A notion of rugged individualism still characterizes life in the West. How much of that is myth and how much reality?

Wallop: It's not all myth by any stretch of the imagination. [Interior Secretary Bruce] Babbitt is an urbanized Westerner, and he makes the mistake of calling the West the most urbanized part of America. Well, it is. If you look at the map more inhabitants of the West live in its urban centers than in the urban centers of Connecticut, but that's partly because you can't live in all the West.

But what Babbitt doesn't understand is that when anybody moves to the West, the first thing you do is buy a pair of cowboy boots. You identify with what you believe the West to be. The West doesn't have to sell itself as a haven for rugged individualists.

The West by and large views itself in tension with the federal government, because of the federal [ownership of] land. And therefore, far more skeptical of the presence of government than people here [in the East] who don't live with that tension.

For most average citizens of Maryland, the idea that the federal government says you can only drive 55 miles an hour is not a whole lot different from a decision their own government would make anywhere in the state. But when you have roads in the West that are 26 miles without a kink in them, nobody believes that their local government [would mandate a 55 mile-per-hour speed limit]. All of the government's presence in the West, and not just with respect to the land, is far more visible and a far more oppressive part of the ordinary citizen's experience than it is here.

Reason: Thanks to, among other things, telecommuting, which allows people to live anywhere they want, people are leaving the cities and suburbs of the East and moving to the West. Can the fragile ecology of the West accommodate such massive migration? And will these newcomers indelibly alter the indigenous culture of the West?

Wallop: The presence of the federal government is going to make that [migration] extremely difficult. And the more you have people like Babbitt in there, the more difficult it's going to be.

Babbitt is trying to make use of the public lands less and less economic for traditional pur poses, and more and more a sort of playground and park for visitors. The private lands then begin to have less and less economic value on their own, and therefore will have to be sold in smaller and smaller parcels.

What Babbitt is doing is the worst possible thing for the environment and the West. We have two options: Go back to a full-blown view of multiple use or privatize the federal lands. One of the early concepts of public land was that it wouldn't be just one big ranch or one big mining operation or mineral or timber operationthere would have to be an economic mix that could provide some economic resiliency, assuming that not every commodity, not every use, would be available at the same time. We had a breadth of economic uses. You can't do that if you assume that any commercial use of federal lands is an affront to the recreational users of it.

My preference would be to privatize. Some people say you'll lose hunting privileges, but the federal government isn't going to be a bit more hospitable to recreational users than the private guy who might make a little money off this person because the private owner would give them a better experience anyway.

Reason: Social Security is a major project of Frontiers of Freedom. What are you doing?

Wallop: We're taking on Social Security as a property rights issue. We figure that every single American has an absolute property right interest in the fruits of his or her own labor. What I work for should be my property.

Along comes the federal government and takes 151/3 percent of that laborer's fruit and prom ises that should you die prematurely, the government is happy to be the beneficiary. Should you live to the time of retirement, you will receive benefits which have not yet been described, at an age which has not yet been guaranteed, and taxed at a level which has not yet been identified.

You have no say in how it's invested or where it goes. You can't leave it to your widow, you can't leave it to your children, you can't retire early and still have the fruits of your labor. I'll crawl off my libertarian perch far enough to say that we [have] to make savings an obligation, but the savings are yours. You will have a couple of dozen options as to how to invest that or where to save it, but your limit of earnings will be the success of your investments.

Reason: Will Social Security privatization becomes a bigger issue, say, in three or four years, just as tax reform is now?

Wallop: It has to because no tax reform is of any consequence unless it also deals with the payroll tax. You can't get rid of the IRS as [House Ways and Means Committee Chairman Bill] Archer or others want to do without getting rid of the payroll tax.

There is no more unfair tax right now than Social Security. It takes 15 1/3 percent off of the wages of the poorest earner in this country. And privatization would make each American a share holder in their economy, and interested in where it's going. Think of what the country could do with this huge infusion of capital that was no longer in the hands of government and in the hands of people creating jobs. And we could get over this goofy idea that growth is an economic detriment.

A Right to Welfare?

info@reason.com (William H. Mellor III) — Sat, 01 Oct 1994 00:00:00 EDT

Between the Lines: Interpreting Welfare Rights, by R. Shep Melnick, Washington, D.C.: The Brookings Institution, 335 pages, $36.95/16.95 paper

"What we object to most is the undermining of the fundamental principle of national entitlement." So asserted the director of the Coalition of Human Needs when Congress last attempted to pass a welfare-reform measure. Despite such protests from welfare advocates, Congress passed the Family Support Act of 1988. Far from radical reform, its focus was job training and education.

The act did recognize that successful welfare reform was unlikely to come from the top down through the system. So it allowed states to experiment with different types of programs to see what worked best. New Jersey pioneered the state reforms by passing a comprehensive program in 1992. One provision of the New Jersey law provides that women who bear children while on welfare will no longer receive an increased welfare grant for each additional child.

The Legal Services Corporation, the National Organization for Women, and the American Civil Liberties Union charged into court. In carefully orchestrated litigation, those groups sought to enshrine the principle of national entitlement by establishing that the denial of increased welfare payments upon the birth of a child violates the mother's right to procreate.

This still-pending litigation is just the latest round in a 30-year campaign by welfare advocates to use the courts to expand the reach and scope of the welfare state. They have been abetted by Congress, which passes welfare laws prompting, indeed compelling, wide-ranging litigation. Courts have responded in fascinating and sometimes surprising ways. And although courts have thus far refused to recognize a constitutional right to welfare, they have played a central and evolving role in shaping the welfare system of today.

Weaving coherent themes out of the many statutes and case law permutations requires a deft hand. Drawing from those themes real insights into the role of courts in policy making is an even more daunting task. R. Shep Melnick, chair of the politics department at Brandeis University, takes on this challenge in his new book, Between the Lines: Interpreting Welfare Rights.

Melnick offers the best analysis to date of how courts have addressed the issues surrounding welfare over the past 50 years, and he provides a penetrating appreciation of the courts' policy-making function. In keeping with the book's rigorous academic style, Melnick uses case studies to examine how courts interpreted sweeping, ambiguous, and at times contradictory statutes passed by Congress. Three programs, Aid to Families with Dependent Children (AFDC), education for the handicapped, and food stamps, offer fascinating insights on how over time, regardless of whether the Supreme Court was dominated by liberals or conservatives, court action expanded program benefits and increased federal control over state and local government.

The accretion of federal power oc-curred through both constitutional and statutory interpretations. For instance, in 1967, the Supreme Court in Goldberg v. Kelly ruled that welfare recipients facing "brutal need" are entitled to a due process hearing before benefits can be terminated. The ensuing years saw welfare procedures grow enormously complicated and difficult to modify. (One of the many reasons President Clinton's welfare- reform proposal will never achieve its purported goal of ending welfare as we know it is the myriad rights of appeal provided recipients under existing law and increased in the Clinton plan.)

Meanwhile, as the influence of the Rehnquist Court began to be felt, the Supreme Court displayed less willing-ness to second-guess Congress or administrative agencies. This restraint culminated in 1984 in Chevron v. NRDC, where the Court held that "when the statute is silent or ambiguous with respect to the specific issues," the sole issue for the court is whether the administrative agency adopted a "permissible construction of the statute." That decision gave a green light to federal agencies that in classic public- choice fashion maximize their budgets and programs as much as possible.

Even as the Supreme Court retreated from the activism of the 1960s, the lower courts decided dozens of cases that continued to expand welfare programs and procedures. Typically, those cases turned on statutory or regulatory interpretations of a very technical nature (such as what constitutes a "standard filing unit" for Medicaid eligibility; whether disability payments should be counted as "earned" or "unearned" income). The cumulative effect of those decisions, especially when pushed by the Legal Services Corporation, was to create an enormous, legally complex welfare system prone to litigation over every procedural or policy dispute.

The case studies demonstrate how statutorily created rights inevitably mean different things to Congress, interest groups, and scholars, and how in the end the courts are always called upon to resolve ambiguities. Each case study provides lessons that illuminate the results of court interpretations. For instance, Melnick draws five lessons from the AFDC litigation.

His first lesson is that litigation that is part of a national policy agenda is more likely to bring the extreme case before the court, with a resulting increased likelihood of novel rulings. The paradigm example was King v. Smith, in which the Supreme Court, propelled by Legal Services Corporation's vivid portrayal of racial animus in George Wallace's welfare program, blithely ignored jurisdictional constraints and struck down the program. Jurisdiction was presumed in welfare disputes increasingly from then on as courts federalized welfare programs.

Second, "litigation tends to isolate what in the real world is merged." For example, welfare eligibility and benefits have received starkly different treatment from the courts, with the result that as more people became eligible, benefits became harder to obtain. Third, when the Supreme Court relies on legislative silence to assume congressional intent, it risks paralyzing the system through the uncertainty created when lower courts attempt to apply Supreme Court rulings in particular cases. In the aftermath of King v. Smith, lower courts groped inconclusively for consistent principles to apply to the rising load of welfare issues placed before the court. Such uncertainty continues to this day.

Fourth, Supreme Court rulings have gone through three phases (the Warren, Burger, and Rehnquist Courts) with conflicting rulings, many still unresolved, as a result. And finally, AFDC cases have gone from grand principles to wooden rules focusing on administrative minutiae. As this has happened, the moral authority of welfare advocates has waned.

Sometimes courts are prompted by skillful advocates with a national litigation agenda. Melnick, like others before him, traces the successful courtroom strategy used by the Legal Services Corporation to expand the procedural and substantive rights of welfare recipients. But Melnick goes further and explores what he calls the "central irony" of AFDC litigation: "Reformers seeking to make AFDC more nationally uniform, more generous, and more widely available turned to the courts because their efforts had repeatedly been met with failure in Congress; the courts then justified their policies in claiming that this is just what Congress intended all along." Congress was often duplicitous in this charade by passing vague and sweeping laws that were deliberately left to the courts to interpret by "reading between the lines."

Melnick examines the congressional reforms that eventually culminated in the Family Support Act of 1988. He finds that Congress overturned a "surprisingly large" number of court decisions limiting technical rules such as calculating step-parents' income in determining eligibility, limiting benefits to newcomers, and limiting benefits to college students. Nevertheless, the basic legal edifice of the welfare state remained and federal control continued over many aspects of state programs, thereby constraining innovation and increasing bureaucratic costs.

Throughout this legal history, courts and the Congress grappled with various theories of rights. Melnick skillfully explores the implications of those theories, from the "common law of need" created by the courts in the 1960s as welfare was expanded, to the "right to a free and appropriate education."

While not grounded in a natural-rights philosophy, Melnick brings scholarly skepticism to the ambiguous and loose ways in which "rights" have been created and enforced by law. This is not a book intended to propose policy reforms, but Melnick's skillful analysis indicts our legal system for its lack of a consistent natural rights-based approach to decisions. He accomplishes his goal of studying the programmatic consequences of court decisions to force the reader to link legal abstractions with real-world problems.

The reader will not come away from this book with a comfortable assurance that welfare as we know it will end anytime soon. For better or for worse, the courts will continue to play a defining role in the growth (or demise) of the welfare state. Litigation like that currently pending in New Jersey will determine the course of welfare reform at the state and national level. The political dynamics, institutional inertia, and unmoored decision making inherent in welfare law, mean that advocates for a diminished welfare state must be relentless in their efforts nowhere more than in court.