Before the ink was dry on the new federal welfare act, battle lines began to form in New York over Article XVII of the state Constitution, which requires the state to provide “aid, care, and support” to the needy. State Senator John Marchi, a Republican from Staten Island and a supporter of welfare reform, warned in an op-ed piece that Article XVII would oblige the state itself to make up for any lost federal money; he urged a constitutional amendment. Welfare advocates had already reached the same conclusion; they began preparing litigation to force the state to maintain the welfare status quo. Both efforts are misguided—and for the same reason.

The people of New York adopted Article XVII on the recommendation of the 1938 constitutional convention (and at the urging of New York City mayor Fiorello H. La Guardia). The clause was meant to express a political consensus, born of the Depression, that the state had a responsibility to help the needy and to confirm that it had the authority to do so. It was not an open-ended commitment to the poor, however, as some suggest by citing just its first half. The fuller text reads: “The aid, care, and support of the needy are public concerns and shall be provided by the state . . . in such manner and by such means, as the legislature may from time to time determine.”

As Article XVII itself makes clear, it is up to elected officials to set basic welfare standards. For the last 20 years welfare advocates have tried to persuade the state’s judges to declare how much assistance the Constitution requires, but the New York State Court of Appeals has repeatedly, and properly, held back. It has ruled that deciding who the needy are and how best to help them is a job for legislators, and that state courts are severely limited in reviewing their decisions. Plaintiffs would have to overcome a strong presumption in favor of the legislature’s choices by proving “beyond a reasonable doubt” that the state has not fulfilled its constitutional obligation to the poor. Only a complete lack of welfare policy is likely to satisfy this very heavy legal burden.

As welfare reform gets under way nationally, New York’s would-be amenders and litigators should recall the wisdom of Article XVII and the judges who have interpreted it with such admirable restraint. In a democracy, striking the balance between individual responsibility and compassion, between fiscal restraint and social obligation belongs not in the courts but in the hands of the people’s elected representatives.


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