Scott Michaelsen

Department of English
Michigan State University
smichael@pilot.msu.edu

 

and

 

Scott Cutler Shershow

Department of English
Miami University
shershsc@muohio.edu

 

As soon as, through the movement of those forces tending toward a break, revolution appears as something possible, with a possibility that is not abstract, but historically and concretely determined, then in those moments revolution has taken place.

 

–Maurice Blanchot

We are left with a simple command, and an infinite responsibility. Be just with Justice.

 

–Drucilla Cornell

 

This essay attempts to confront perhaps the most obvious and yet the most difficult challenge of radical social critique: the question of the practical. Both of its authors have been interested for many years in various modes of deconstruction and post-Marxism, and we have attempted, in our separate ways, to expose the limits not only of the historical discourses of economy and anthropology, but even of some of the cherished concepts of contemporary left-wing thought. But our work on multiculturalism, political economy, and cultural studies has brought us to the limit of our own critiques. At this limit, how does one say “yes” to the affirmative? How can we, in the words of the famous Marxist injunction, “prove the truth, that is, the reality and power, the this-sidedness” of our thinking in practice (Marx and Engels 144)?

 

We thus respond here to two challenges. The first concerns the general perception in many circles that poststructuralist thought is either a form of quietism with no political consequences or a reactionary practice that easily slides into the anti-Semitisms and fascisms of Nazi-era Heidegger and deMan. Much recent work in the tradition of poststructuralist Marxism, including our own, has been attacked on one or the other of these grounds. To some, the work seems merely theoretical and thus utterly impractical. To others, even more seriously, the work seems counterproductive in its relentless critique of seemingly promising possibilities for political thought and action. In other words, poststructuralist and post-Marxist modes of theory are perceived as merely alternating between a scholastic cataloguing of utopian (im)possibilities, and a categorical rejection of all down-to-earth, practical-progressive thought. A great deal has been written in recent years attempting to disprove these views. One might mention, among others, Michael Ryan’s Marxism and Deconstruction: A Critical Articulation (1982), Drucilla Cornell’s Beyond Accommodations (1991; new edition 1999), Geoff Bennington’s Legislations (1996), Richard Beardsworth’s Derrida and the Political (1996), Chantel Mouffe’s The Democratic Paradox (2000), and Derrida’s own many recent writings on politics, including, most famously, Specters of Marx (1994), and his response to the critics of that book in Ghostly Demarcations (Sprinker ed. 1999). It must be admitted, however, that little of this work undertakes a deconstructive approach to particular instances of politico-economic decision-making (although Derrida’s writing on South Africa is one of several interesting exceptions).¹ Our project here would be unimaginable without the rigorous work of these and many other contemporary theorists. But whatever its myriad achievements, none of this work has stilled the well-meaning voices that constantly interpose to it the belittling claims of brute practicality. All of us have frequently heard these voices: it is well and good, they say, to debate such things in a seminar room or an academic journal, but how will any of this help the refugees in Kosovo or Afghanistan, or feed the homeless, or fight racism, or relieve any of the other small or large acts of violence and injustice among which we daily live and work? In this essay, we do not shrink from such questions. Instead, we embrace them and, in a preliminary way, attempt to take up what we acknowledge to be this necessary burden.

 

The second matter to which we attempt to respond is the one that Roberto Mangabeira Unger has elaborated: the question of remaining committed to an ultimate radicality of thought even as one examines and endorses certain sorts of practical reformism, such as affirmative action and welfare. As Unger observes, “The idea of institutional tinkering, or part-by-part change, has often been associated with the abandonment of the challenge to the fundamental institutions of society,” and “Conversely, the conception of such a challenge has just as often been connected with the idea that our institutional structures exist as indivisible systems, standing or falling together” (Unger 19). Marx himself sometimes positioned himself in such a way as to rule out the possibility of anything but an absolute transformation of society. In the “Critique of the Gotha Program,” for example, Marx deploys a logic that seems to suggest that any given social arrangement can be declared either bourgeois or revolutionary, with nothing in between, and with an absolute divide between the two. Marx will occasionally grade the various forms of bourgeois society, as when he argues that “vulgar democracy… towers mountains” over the Gotha Program’s projected Lassallian arrangements (Marx and Engels 538-39), but he also insists that all bourgeois arrangements remain bourgeois through and through and hence should be rigorously rejected. And by such logic, Marx finds himself declaring at the end of this text, for example, that “a general prohibition of child labor” is “incompatible with the existence of large-scale industry” and therefore not only an “empty, pious wish,” but even “reactionary” (Marx and Engels 541). We cite such a passage not to suggest it somehow vitiates the whole Marxist project, within whose broad lines we continue to place our own, but rather to underline our contrasting belief that certain modes of practical political reform are entirely commensurate with more radical forms of theoretical critique. Here, we consider whether certain versions of affirmative action and welfare might remain faithful to what Jean-Luc Nancy, Maurice Blanchot, and Giorgio Agamben, among others, have described as a community beyond the limits of all prevailing models of community, a community that is not the end-result of some forever-deferred cataclysm but that is, rather, uncovered or recognized in the acknowledgment of our being-in-common.² In this way, we position ourselves at one remove from Unger’s twin concerns regarding “the dangerous limiting case of transformative politics”: on the one hand, the demand for nothing less than an absolute revolution, an all-transformative intervention within an imagined History; on the other hand, the inevitable lapse into a “pessimism” about change that no longer aspires to do more than “humanize the inevitable” (Unger 19, 20). The first case is that of the “would be revolutionar[y]” suffering from a “hypertrophy of the will,” while the second is that of the “disillusioned ex-Marxist become the institutionally conservative social democrat” (Unger 20). Here, we seek to avoid either of these extremes and agree generally with Unger that it is valid and important to experiment at the border of existing social arrangements–that is, to imagine practical, incremental reforms even as one also tries to think a society that, by contrast, wholly exceeds the exclusionary practices of the present moment.

 

In what follows, we first critique at length the reasoning of some of the well-known legal decisions of recent years that address the issues of affirmative action and welfare, in order to suggest how and why the prevailing thought on either issue has reached an impasse. Then we go on to discover the possibility of a new opening of theory and practice that takes place at the very limit of the prevailing logic on either issue.

 

1. Toward a Theory of Affirmative Action Without White Affirmation

 

In the third presidential debate of 2000, candidates George W. Bush and Albert Gore, Jr. jousted over affirmative action. Gore attempted to show that Bush did not accept affirmative action’s fundamental principles–by which he apparently meant the celebrated opinion of Supreme Court Justice Louis Powell in Regents of California v. Bakke (1978). Bush, conversely, asserted that he supported the Texas system: that is, the system instituted in the wake of Hopwood v. Texas (1996), in which ten percent of every public high school graduate class is guaranteed admission into Texas higher education. But there was clear agreement over the matter of “quotas.” Both vigorously asserted their opposition to that form of affirmative action. Indeed, the term “quotas” has become in recent years the all-purpose bugbear in affirmative action discourse.

 

But precisely what are we referring to when we use this crucial term? The commonplace in this regard is that “quota” signals an interest in placing racial minorities in jobs and admitting them as students irrespective of merit. Thus, according to this account, quota-based affirmative action involves the placement of unqualified or considerably less qualified racial minorities into sought-after positions. But as anyone knows who has served, for example, on an admitting committee for graduate students at a major university, the question of qualifications simply cannot be settled: excellent students come from all types of colleges, with all forms of credentials, and with all manner of test scores and grades; and the same is true of mediocre students. Success in graduate school is premised on factors that are impossible to weigh according to any simple standards. The enormous body of literature surrounding, for example, the matter of standardized test scores should have convinced anyone long ago of the foolishness of predicting talent and performance.³

 

Something else, of course, is at stake in the rhetoric of “quotas,” and while it might be obvious to some, it is also worth rehearsing. One can start with the key decision in Hopwood v. Texas (1996; also known as “Hopwood II”), where a striking series of consecutive paragraphs signals some hard kernel of ideology in their very repetitiveness. The decision, handed down 18 March 1996 by the United States Court of Appeals for the Fifth Circuit, rejects the idea that a state or a state institution has “a compelling state interest in remedying the present effects of past societal discrimination” and makes clear the limits of remedial action (Hopwood 949). The three-member court unanimously and approvingly cites Justice Powell’s decision in Wygant v. Jackson Board of Education (1986):

 

In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future. (Hopwood 950)

 

And again, the Court cites Powell in Wygant:

 

A remedy reaching all education within a state addresses a putative injury that is vague and amorphous. It has “no logical stopping point.” (950)

 

Then, citing the Supreme Court’s plurality opinion in City of Richmond v. J.A. Croson Co.(1989):

 

The “evidence” relied upon by the dissent, history of school desegregation in Richmond and numerous congressional reports, does little to define the scope of any injury to minority contractors in Richmond or the necessary remedy. The factors relied upon by the dissent could justify a preference of any size or duration. (950-1)

 

And, finally, the Fifth Circuit declares in its own voice that the previous decision of the district court, the decision they are overturning, must be rejected because it “employs no viable limiting principle” (950), and because

 

the very program at issue here shows how remedying such past wrongs may be expanded beyond any reasonable limits. (951)

 

“Ageless and timeless,” “no logical stopping point,” “preference of any size or duration,” “no viable limiting principle,” “beyond any reasonable limits”: what each of these moments has in common is an assertion that affirmative action can go too far, can overrun what Wygant calls the “limiting [of] the remedial purpose to the ‘governmental unit involved'” (qtd. in Hopwood 952, n. 44). The argument here is clear: the Court in Hopwood II asserts that the University of Texas Law School is only permitted to take account of its own local and particular discriminatory practices (not those of society in general, or Texas education, or even the University of Texas) and only with regard to citizens of the State of Texas.

 

And indeed, nested in this flurry of limits, the Court asserts yet one more–here once again citing Croson:

 

Relief for such an ill-defined wrong could extend until the percentage of public contracts awarded to [minority businesses] in Richmond mirrored the percentage of minorities in the population as a whole. (950; for original, see Croson 498)

 

In the context of all of the other, repetitive phrases regarding “no reasonable limits,” the logic of the whole becomes visible: parity or equivalence between the state’s racial categorization and public contract awards, or between racial categorization and law school admissions, would be the moment when one has gone “beyond” the “viable,” when one has clearly exceeded all “reasonable limits.” In other words, “reasonable” affirmative action must never approach an equalization of opportunities between and among racial categories. What will remain absolutely unthinkable, unreasonable, and without any “viable” stopping point or limit would be a world in which an X percent statewide African-American population would yield an X percent African-American entering class at the University of Texas Law School.

 

This is, then, one of the crucial decipherings for the term “quota”: a system in which affirmative action targets might produce equal opportunities. It is as simple as that. (Conversations about “merit,” therefore, are merely code for continued white supremacy; as Richard Delgado, through the fictional professor “Rodrigo,” writes: “The first problem I have with the idea of merit has to do with its majoritarian quality…. Merit is what the victors impose” [Delgado 71].) And while it is certainly true that Hopwood in general represents the rhetorical opposite or end of affirmative action (striking down remedies for any but the most egregious, intentional, and local examples of discrimination and exclusion), one should not too quickly presume that one will find a different logic operating elsewhere–in Justice Powell’s decision in Bakke, for example, which Hopwood explicitly seeks to overturn. Powell quite clearly asserts the same logic of “boundlessness'” in his decision:

 

In the school cases, the States were required by court order to redress the wrongs worked by specific instances of racial discrimination. That goal was far more focused than the remedying of the effects of “societal discrimination,” an amorphous concept of injury that may be ageless in its reach into the past. (Regents 307)

 

What precisely does Powell imply here by “amorphous” and “ageless”? Earlier in the opinion, he writes:

 

The clock of our liberties cannot be turned back to 1868…. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of greater protection than that accorded others. “The Fourteenth Amendment is not directed solely against discrimination due to a “two-class theory”–that is, based upon differences between “white” and Negro.” Hernandez, 347 U.S., at 478. (Regents 295)

 

Powell in essence argues that the Fourteenth Amendment embodies a “two-class theory” that, if it were 1868, might be of relevance for deciding the matter. One hundred and ten years later, however, he asserts that the Fourteenth Amendment has other agendas; somewhere between 1868 and 1978, then, the Fourteenth Amendment was transformed. There was a time limit, he asserts, on strict construction of the Amendment.⁴ During this period, the mode of interpretation of the Amendment shifted from strict to loose construction, from original intent to new historical needs and exigencies. Powell dates this transition by signaling that something new has taken place “over the last 30 years”–meaning, roughly, 1950 (Regents 293). The implication is that by 1950 it was “too late” for race-based remedies. The fact that Powell here directly alludes in his language to the most famous passage in Brown v. Board of Education (1954) tells us a great deal. Brown had argued that, “we cannot turn the clock back to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation” (Brown 492-3). Thus, Brown suggests that Plessy (the notorious “separate yet equal” case) belongs to a historical moment, and Powell does much the same, but to reverse effect: the project of Brown, he concludes, has made race-based affirmative action an impossibility. Affirmative action at the University of California is thus more like Plessy than Brown, according to Powell.

 

The effects of an “ageless” remedy for social discrimination are multiple, according to Powell. “Gender-based distinctions,” for example, “might become part of affirmative action,” although, as Powell writes, “gender-based classifications do not share” the “lengthy and tragic history” of race-based classifications (Regents 303). More troubling, he indicates, is that while gender involves only “two possible classifications,” the matter of “racial and ethnic preferences presents far more complex and intractable problems than gender-based classifications” (303):

 

The white “majority” itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only “majority” left would be a new minority of white Anglo-Saxon Protestants. (Regents 295-6)

 

Thus, the hinge for Powell’s determination of that which is too unbounded for consideration in matters of affirmative action is precisely that moment when whiteness would no longer constitute a majority. In other words, affirmative action, for Powell, is a “majority” solution to the problem of minorities that can operate only to the limit of the maintenance of majority status for whites. In this way, the limit of affirmative action in Powell’s opinion in Bakke is precisely the same as the limit described in Hopwood, and the one thing that the entire tradition of court decisions regarding affirmative action can never tolerate, therefore, is the disenabling of white privilege and thus the disenabling of “race.”⁵ Although Ronald Dworkin suggests that the “ultimate goal [of University-based affirmative action] is to lessen not to increase the importance of race in American social and professional life” (Dworkin 294), this most certainly has not turned out to be the case in practice–not since Bakke, at least. In this regard, all liberal scholarly celebrations of the Powell opinion’s “pragmatic accommodation” and “shining virtues” (Post 24, 20) and its “salutary” character of opening up rather than closing debate on affirmative action (Sunstein 118) are misguided. If the Powell opinion settled anything, it was that affirmative action must be accommodated to the presumed views of the “white majority.”

 

Indeed, there are so many moments of dicta in this regard in Powell’s opinion, separate and distinct from any form of legal argumentation, that it is difficult to read it without being struck by the sheer force of its defense of white privilege. In a moment (lurking in Powell’s footnotes) that interests the distinguished legal scholar Reva Seigel, Powell marshals onto the side of his argument the “outrage” of white people:

 

All state-imposed classifications that rearrange burdens and benefits on the basis of race are likely to be viewed with deep resentment by the individuals burdened. The denial to innocent persons of equal rights and opportunities may outrage those so deprived and therefore may be perceived to be invidious. These individuals are likely to find little comfort in the notion that the deprivation they are asked to endure is merely the price of membership in the dominant majority and that its imposition is inspired by the supposedly benign purpose of aiding others. One should not lightly dismiss the inherent unfairness of, and the perception of mistreatment that accompanies, a system of allocating benefits and privileges on the basis of skin color and ethnic origin. (Regents 294, n. 34)

 

One might want to underline the words “merely the price of membership in the dominant majority” in order to underscore the way that Powell takes as a given the continued existence of a “dominant” white majority, and that even an affirmative action that in no way imperils this status might cross the line of “inherent unfairness.” In this sense, affirmative action theory as embedded in the Powell opinion and its many later judicial and scholarly commentaries begins from the assumption that affirmative action may only set as its goal a minimal sort of tokenism. Again, one perhaps wants to underline the extra-legal character of this moment: a U.S. Supreme Court justice decides here to speak for the white race rather than on behalf of a legal principle.

 

And there is still to consider in this regard one more matter buried in the Powell decision that will permit the theorization of affirmative action in a far more explicit way. It should be remembered, of course, that Powell’s opinion in Bakke pleased no one on the court: that Justices Burger, Stewart, Rehnquist, and Stevens affirmed the overturning of the University of California affirmative action program but wrote a combined dissent to Powell; and that Justices White, Brennan, Marshall, and Blackmun accepted Powell’s logic only at its most minimal point, Section V-C, which is one paragraph long and provides no guidance as to how “the competitive consideration of race” might continue (Regents 320). Historically, however, the totality of Powell’s decision has become increasingly important, with large chucks of its entirely solo logic cited in later court decisions.

 

Justice Powell relied not only on his reading of the Fourteenth Amendment and of Brown v. Board of Education in order to reject California-Davis’s version of affirmative action. He also linked his opinion on several occasions to a network of Supreme Court and other court cases concerning Asian-Americans. Section III-A, for example, which was joined by Justice White and thus perhaps stands firmer than any other part of the decision except for V-C, ends by citing approvingly the language from Hirabayashi v. United States (1942) and Korematsu v. United States (1944):

 

Racial and ethnic classifications, however, are subject to stringent examination without regard to these additional characteristics {i.e., “discreteness” and “insularity” of the classification}. We declared as much in the first cases explicitly to recognize racial distinctions as suspect:

 

“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi, 320 U.S., at 100. “[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. This is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” Korematsu, 323 U.S., at 216.

 

The Court has never questioned the validity of these pronouncements. Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination. (Regents 290-91)

 

These perhaps fine-sounding words appear in cases that leave the blackest mark on the Supreme Court’s record in the twentieth century. Hirabayashi and Korematsu are the Japanese-American Exclusion Order cases; both affirm the Constitutional authority to discriminate and exclude U.S. citizens on the basis of race if “a group of one national extraction may menace that safety more than others” (Hirabayashi 101) and if it is “deemed necessary because of the presence of an unascertained number of disloyal members of the group” (Korematsu 218).

 

Both cases were reopened through Congressional inquiry shortly after Powell’s decision in Bakke, and the final Congressional Report concluded that the cases had been “overruled in the court of history.”⁶ Yet, of course, the cases stood as precedent in 1978, just as they stand today. As Reggie Oh and Frank Wu have written, “Korematsu remains controlling case law” (167). The cases constitutionally authorize a two-tier or two-class model of U.S. citizenship, upholding the Exclusion Orders during a time of emergency even as they affirm Asian-American “status as citizens” (Hirabayashi 113-14).

 

Thus, the question of what Powell has accomplished by yoking his decision in Bakke to these cases is a curious one, and yet one which must be asked because Powell continues along the same lines in Section III-B of the decision. Here, he includes a long footnote that uses the Exclusion Order cases to declare that “no Western state… can claim that it has always treated Japanese and Chinese in a fair and evenhanded manner” in order to demonstrate that an affirmation of general “minority” entitlement will open the door to an unbounded number of groups which might claim discrimination (Regents 297, n. 37l; also 292, 294).

 

Powell is here operating by complex analogy. When he writes, “This is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny,” he suggests that the logic of the state of emergency in Hirabayashi and Korematsu will be applied to California-Davis in order to ascertain whether the State of California’s racial hierarchies justify the emergency measure of quota-based affirmative action. For Powell, of course, California does not meet the test. Thus, the same standard which permits the Japanese concentration camps denies the need for affirmative action. But this is more than the mere application of some clear and determinate standard in two separate cases. By thinking these two instances together as a coherent political strategy, one can conclude that the logic of the limit in Bakke is double: Affirmative action can only proceed so long as it does not disturb white privilege, while at the same time the Constitutional protection of raceless citizenship extends also only to the point where white privilege senses its disturbance. The Supreme Court, then, has clarified the matter of racial politics in the following way: the only race that always counts (or matters) is the white race. All other races are counted (that is, enumerated and taken account of) flexibly, and this depends entirely on whether such counting is seen as a furtherance or hindrance to white majoritarian rule.

 

Hirabayashi and Korematsu are by any measure highly exceptional cases, but such exceptions, as Carl Schmitt argues, reveal the precise location of “sovereignty”: “Sovereign is he who decides on the exception” (Schmitt 5). “What characterizes an exception is principally unlimited authority, which means the suspension of the entire existing order,” and therefore “the exception reveals most clearly the essence of the state’s authority” (Schmitt 12, 13). Exceptions to Constitutional norms, then, are not precisely exceptional:

 

The rule proves nothing; the exception proves everything: It confirms not only the rule but also its existence, which derives only from the exception. (Schmitt 15)

 

It is only in the exception that one can see clearly the grounding of the norm. In this case, legal racelessness, legal color-blindness, is premised, grounded, and founded upon a bedrock of Constitutional white privilege, of white supremacy. The law of white supremacy “is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant” (Hirabayashi 101). Powell’s founding of all future affirmative action theory on the base of Hirabayashi and Korematsu thus assures theoretically that affirmative action must content itself with results far below those that would permit the equalization of racial opportunities in the United States. The body of affirmative action decisions in the U.S. since 1978 are coextensive with the entire history of state-based and state-sponsored racial hierarchies and exclusions. (From a related perspective, as Oh and Wu suggest, the affirmative action decision Adarand Constructors v. Pena (1995) explicitly reinforces the logic of Korematsu and lays the groundwork for a future related race-emergency decision [182]).

 

One sees the results of Powell throughout the country, in institutions that claim to be strongly operating under the principles of affirmative action. At Michigan State University, for example, where Michaelsen teaches, the official affirmative action goals of colleges and departments are set far below general population distributions and are instead keyed to a concept of market “availability” of potential faculty. In addition, in setting unit goals all “minorities” are lumped together; thus, at a time when the national minority population officially nears 30% and rapidly heads toward 50%, the total target for the Department of English is 10.6% minority composition (or six out of approximately fifty faculty). The implications are serious, as the University’s Affirmative Action Officer reports: once these minimal targets are met, no University-level support need be offered in terms of the hiring of additional minority faculty members. “The test is whether there is underutilization,” according to the UAAO. Since the English Department has two American Indian faculty members, one Asian/Pacific Islander, and two Black faculty members, no “unit hiring goal” is set in terms of Hispanic faculty, for example, even though the Department has no Chicano/Latino faculty members. There are, in essence, too many other minorities already in place, and there currently is 1.6% “over-utilization” of minority faculty positions in the Department from the University’s perspective. Indeed, the Department has been officially notified that it has no “hiring goal” at all at the present time as far as racial minorities are concerned. In this game, no unit can easily or even reasonably manage to achieve parity with larger social demographics, and “minorities” are condemned to super-minority or “minority-minority” status.⁷

 

None of this is surprising in the wake of Bakke, and MSU in this regard is neither better nor worse than its peer institutions. Everything in the case law concerning affirmative action would steer an institution in this direction. For example, in Fullilove v. Klutznick (1980), a case that considered the Public Works Employment Act of 1977, the Supreme Court found that a 10% set-aside for federally funded contracts was constitutional, while in the Croson decision, which was cited at the crucial ideological moment in Hopwood, the court threw out a 30% set-aside instituted by a major U.S. city (a city, by the way, that claimed at the time a 50% minority population). The Supreme Court produced a highly contorted logic in Croson in order to reach the conclusion that one form of set-aside was constitutional and the other not. Justice O’Connor, writing the majority opinion, argued, for example, that the U.S. Congress had stronger powers in regard to determining set-asides and noted that the Thirteenth and Fourteenth Amendments themselves had limited the powers of states to undertake their own initiatives and enlarged those of the U.S. Congress (City of Richmond 490). Thus, in part, Richmond’s plan was overturned because it represented local rather than federal affirmative action.

 

But it would be difficult not to see in these two opinions that the Supreme Court has determined that affirmative action has an appropriate target goal, and that it is closer to 10% inclusion than it is to 30%. Justice O’Connor writes tellingly in Croson: “the 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing” (City of Richmond 507). This is precisely the heart of the matter: 10% tokenism is acceptable to the Supreme Court, while 30% “racial balancing” is not (even though “racial balancing,” or attention to affirmative action with regard to population, would go far further than 30%). Therefore, when one finds that a Research 1 institution such as Michigan State has adopted a roughly 10% plan, it is clear that the University seeks to position itself in relation to the case law in a space where its policy cannot easily be contravened. In fact, it is in Croson that the logic of “availability” is laid down as law in the clearest fashion. But the results of this “lowballing” of affirmative action targets are also perfectly clear.

 

One related area in which Croson completely overturned Fullilove, rather than distorted it, concerns the matter of statistical analysis. Fullilove had cited approvingly a House Committee on Small Business report that had argued that statistical disparities constituted prima facie evidence of discrimination:

 

While minority persons comprise about 16 percent of the Nation’s population, of the 13 million businesses in the United States, only 382,000, or approximately 3.0 percent, are owned by minority individuals. The most recent data from the Department of Commerce also indicates that the gross receipts of all businesses in this country totals about $2,540.8 billion, and of this amount only $16.6 billion, or about 0.65 percent was realized by minority business concerns.

 

These statistics are not the result of random chance. The presumption most be made that past discriminatory systems have resulted in present economic inequities. (qtd. in Fullilove 465)

 

And the Court concludes on this point: “we are satisfied that Congress had abundant historical basis from which it could conclude that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination” (Fullilove 478).

 

Croson‘s rejection of this sort of statistical evaluation is sweeping: “But where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task” (Croson 501-02). “Blacks may be disproportionately attracted to industries other than construction,” the Court argues (Croson 503). And the court describes as “non-racial factors” such matters as “deficiencies in working capital, inability to meet bonding requirements, unfamiliarity with bidding procedures, and disability caused by an inadequate track record” (Croson 498-99). Thus, according to Croson, affirmative action begins and ends with things as they are in the present moment. The fact that in the city of Richmond, with a minority population base of 50%, 0.67% of the city’s recent contracts had been awarded to minority firms belongs to a network of “inherently unmeasurable claims of past wrongs” (Croson 506). The Supreme Court in the area of affirmative action has long been and has continued to be the protector, then, of white privilege, accepting or rejecting various affirmative action plans and evidence of discrimination entirely on the basis of whether percentage hiring/contracting goals for such programs are kept to a bare minimum. Every time the Supreme Court invokes its logic of “unboundedness,” therefore, the dirty secret is that the Court means that a particular program has come too close to racial redress. At times, the Court completely strips away its own masking of this agenda, as in Croson, in which a 10% set-aside is declared “flexible,” while a 30% set-aside is deemed a “quota.” Here, the Court declares its preference for not calculating discrimination and the limit of deracialization, while more typically (and even in Croson) the court rhetorically has rested on the logic of rejection of any “amorphous claim” for a program “of any size or duration” (Croson 499, 505).

 

The absolute disaster of attempting to build an affirmative action program atop the logic of Powell and the Supreme Court decisions that follow is clear, then, but for one exception. As is well known, Powell often is celebrated (even by his detractors) for Section IV of the opinion, in which he affirms the “benefits that flow from an ethnically diverse student body” and the first amendment “freedom of the university” (Regents 306, 312). As is also well known, this limited defense of affirmative action has become the crucial matter in all subsequent affirmative action discussion.

 

Indeed, the summary judgment issued in Gratz v. Bollinger (2000), which ruled that the University of Michigan’s undergraduate affirmative action program (at least in its most recent incarnation) is constitutional, turns on the question of diversity, and here one should first note the language that the Court reiterates from Plaintiffs’ arguments:

 

Plaintiffs have presented no argument or evidence rebutting the University Defendants’ assertion that a racially and ethnically diverse student body gives rise to educational benefits for both minority and non-minority students. In fact, during oral argument, counsel for Plaintiffs indicated his willingness to assume, for purposes of these motions, that diversity in institutional settings of higher education is “good, important, and valuable.” Counsel for Plaintiffs, however, contends that “good, important, and valuable” is not enough, and that the diversity rationale is too amorphous and ill-defined, and “too limitless, timeless, and scopeless,” to rise to the level of a compelling interest. According to counsel for Plaintiffs, the University’s diversity rationale has “no logical stopping point” but rather is a “permanent regime” in direct conflict with strict scrutiny standards. (Gratz 25)

 

It is here that something novel perhaps enters the case law of affirmative action: an affirmation of that which is unlimited, rather than minimal, in Judge Duggan’s rejection of Plaintiff’s argument. Already one can note some guarded celebration in liberal quarters regarding the Gratz affirmation of affirmative action, but Gratz comes with important and barbed qualifiers in its unwillingness to determine the limit of affirmative action. First, “in other contexts, i.e. the construction industry context” (which historically has been another important site for affirmative action law), a diversity law rationale may well be “too amorphous and ill-defined” (Gratz 25). Thus, what Powell has left as affirmative action’s only leg to stand on will function only in an educational context, with its specialized needs in terms of diversity.

 

Second, Gratz precisely reflects Powell’s opinion in Bakke (and the limiting logic of the combined Fullilove and Croson decisions) in its rejection of quotas. Most dramatically, Gratz signals its agreement with the Supreme Court in specifying some indistinct numerical limit to affirmative action:

 

A university’s interest in achieving the educational benefits that flow from a diverse student body does not justify an admissions program designed to admit a predetermined number or proportion of minority students. Instead, a university must carefully design its system to fall between these two competing ends of the spectrum, i.e., between a system that completely fails to achieve a meaningful level of diversity, under which the benefits associated with a diverse student body will never be realized, and a rigid quota system, which is clearly unconstitutional under Justice Powell’s opinion in Bakke. (Gratz 31-2)

 

Thus, “the fact that the University cannot articulate a set number or percentage of minority students that would constitute the requisite level of diversity” poses no problem for Judge Duggan, because the “requisite level” is already limited by Bakke (Gratz 25).

 

Gratz, read carefully, thus affirms only that proper affirmative action falls somewhere between total “failure” to diversify and quotas (or “racial balancing”). It remains balanced precariously between, roughly, the 10% and 30% continuum, and likely closer to the former than the latter, given the earlier case law.

 

What Gratz does affirm turns entirely and merely, then, on “diversity,” and Judge Duggan’s decision includes several pages of reference to Patricia Y. Gurin’s contribution to a very large document prepared by the University of Michigan toward its defense, entitled, “The Compelling Need for Diversity in Higher Education.” Though a number of more famous commentators weigh in with pages on the history and results of racism and affirmative action (Derek Bok, Eric Foner, and the like), it is clear that the most interesting part of the document is Gurin’s, and her claim is that she has generated the first quantified results of the benefits of diversity.

 

Duggan writes: “The University Defendants have presented this Court with solid evidence regarding the educational benefits that flow from a racially and ethnically diverse student body” and it is quite likely that Gurin’s findings as well as similar sorts of future studies will now become part of the next phase of defense of university-based affirmative action programs (Gratz 21). It is thus worth pondering the implications of Gurin’s argument, in order to understand whether affirmative action theory finally has broken through the barrier of white privilege or instead has recapitulated it in some new but entirely recognizable form.

 

Gurin’s text refers to an enormous body of literature on psychological development in order to advance a complex thesis whose main features can be boiled down to the following:

 

• College students are still psychologically unformed in terms of their positioning in a “pre-reflective stage of judgment” (Gurin, “Theoretical” 5);

 

• Late adolescent and early adult experiences, when they are discontinuous enough from the home environment and complex enough to offer new ideas and possibilities, can be critical sources of development. (“Theoretical” 2)

 

College students, therefore, in order to engage in “deep thinking” and in order generally to “help… democracy thrive” through reflexive acts of citizenship, must be thrown into a college environment that is sufficiently racially and culturally different from the one they have occupied until age eighteen (“Theoretical” 4, 6). The particular categories of useful outcomes include such matters as “growth in active thinking processes,” “engagement and motivation” concerning learning and thinking, as well as general “citizenship engagement,” “racial/cultural engagement,” and recognition of the “compatibility of differences” in modern society (Gurin, “Studies” 4).

 

Several levels of analysis are necessary to understand the implications of these arguments, but first one should acknowledge that Gurin’s text is attempting to salvage affirmative action within the set of highly narrow constraints imposed by the Supreme Court’s previous decisions. Her general goals in this regard often are admirable, including the “disrupt[ion]” of a “pattern” of post-college “segregation,” and here it is possible to square her goals with those of an affirmative action of deracialization (Gurin, “Empirical” 2). Gurin’s defense can never go far enough, however, given the discursive constraints imposed on the defense in Gratz, and major portions of the structure of the argument prove problematic on closer examination.

 

First, to the extent that a dynamic shift or change in racial/cultural milieu for college-age students is necessary for the achievement of important social objectives, such as thinking itself, the argument is weakened by the fact that the universally positive social benefits she cites are only possible, in the first place, within a society that is segregated. In other words, if the U.S. were not segregated in the first place–if college students had already been brought up in a diverse environment–then no such outcomes would be possible. By defining and valuing critical thinking in this way, the argument could be interpreted as implicitly supporting the maintenance of a geographically racialized United States.

 

Second, to the extent that one of the key outcomes is greater “knowledge and awareness” of racial/cultural difference, the argument values “an increasingly heterogeneous and complex society” (“Studies” 4; “Theoretical” 6). “It is discourse over conflict, not unanimity, that helps democracy thrive” (“Theoretical” 6). Rather than defending affirmative action as anti-racialist practice, as deracialization, therefore, the argument subtly promotes difference-construction and difference-building, in order to continue to exploit such differences for intellectual purposes. Here one would need to confront the text’s fibrillation when using the terms “race” and “culture”–a fibrillation that is perhaps symptomatic, since the two are notoriously difficult to disentangle analytically. As Michaelsen has argued elsewhere at length, there is no benign concept of “culture” or “cultural difference” that might be separated from “race” and “racial difference.” The ideas of cultural difference and cultural pluralism in this century simply replace “race” in anthropological thought, and the discourse of “culture” is therefore a product of racial thought. To the extent that there are lived experiences of cultural difference in the United States, they remain tied necessarily to the heritage of race violence and exclusion in such a way as to always function analogously when made to operate politically.

 

Finally, one should note that the diversity argument in Gurin’s text primarily and perhaps fundamentally emphasizes the benefits that accrue to white student populations (“Empirical” 4). In contradistinction, “peer interaction must be considered in more complex ways for African American students. These findings suggest the supportive function of group identity for African American students, and the potentially positive effects of having sufficient numbers of same-race peers” (“Empirical” 5). Gurin believes that difference benefits everyone, intellectually and democratically, although she also argues that a substantially African-American college environment for African-American students may well benefit them in precisely the same ways that a diverse environment benefits whites. In other words, the world of education need not be reformed in the manner of the University of Michigan, unless the needs of whites constitute the primary agenda. For example, benefit for African-Americans would accrue equally well in a world of primarily black colleges, with all African-Americans attending them rather than historically white institutions. In this way, the University of Michigan’s defense of its affirmative action policy is continuous with all of the affirmative action decisions in arguing from the position of white needs.

 

But the privileging of white benefit in the argument should come as no surprise to those who know the Wygant decision, which explicitly reversed any form of affirmative action on the basis of a “role model” theory.⁸ In other words, any argument for affirmative action that claims that historically racialized students will benefit from classrooms run by similarly racialized teachers is struck down in Wygant as a reintroduction of Plessy‘s exclusionary logic:

 

Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education. (Wygant 276)

 

After Wygant, then, the only avenue left to pursue is precisely the one that Gurin’s text takes up: that whites benefit from teachers and peers of color. In this way, the University of Michigan’s defense of its affirmative action policy is continuous with all of the affirmative action decisions in arguing from the position of white needs.

 

To be perfectly clear here: this argument does not reject the very limited inroads that have been made in the wake of Bakke and that may come if Gratz remains the law of the land (increasingly unlikely as this may be, given more recent developments).⁹ It is true, however, that the thinking that underlies this tradition is one that has a coherent relationship to the logic of Hopwood and thus to the logic of anti-affirmative action. The coherence takes place around the determination of the limit of affirmative action as a permanent system of affirming and supporting hierarchical racial/cultural difference rather than a project of deracialization. Deracialization’s promise cannot be realized until a moment when the historic “races” that live and work in the United States find themselves with truly equal opportunities all the way down, in a pattern of economic well-being and career prestige that matches population statistics. One clear roadblock to deracialization is a hundreds-of-years-old pattern of general economic and social inequality amongst the historic “races.” The disruption of the pattern depends, minimally, not on the achievements of diversity but upon the ending of deep structural inequalities.

 

Affirmative action explicitly has separated itself from this goal after Bakke, and the entire line of post-Bakke court decisions operate as one.¹⁰ These decisions, in fact, take their place as merely part of a whole landscape of history and policy–including the colonization and reservationization of Native America, African-American slavery, the Treaty of Guadalupe Hidalgo, Jim Crow, the Chinese Exclusion Act and its reiterations, the WWII concentration camps for Japanese Americans, Manning Marable’s formulation of capitalism’s underdevelopment of black America, and in general what Charles Mills calls “the racial contract”–in which minority citizenship in the United States remains constantly at risk or even impossible to inaugurate. As it was in 1868 so it remains in the twenty-first century, when the “savage inequalities” of racialization, to borrow Jonathan Kozol’s phrase, are as much on evidence as they were one hundred and thirty five years ago.¹¹

 

One possible redefinition, then, of affirmative action that might take us beyond a mere reiteration of the past (and this is precisely the one that none of the various courts have taken seriously) is as follows: affirmative action should be the white race’s expenditure without reserve of its privilege. Phrasing the matter in this way, affirmative action is about deracialization and the disempowerment of a whiteness that will remain in place for as long as there are income, savings, and property-holding discrepancies between the historic races. Affirmative action, then, must become a special form of what is called “race traitorism”–and not an individuated, voluntarist one (as one finds in the work of Mills, for example), but a white-state-based traitorism. The legal arguments for a Constitutionally based dismantling of white property have been carefully and compellingly assembled in the 1990s by scholars such as Ronald J. Fiscus, Cheryl I. Harris, and Barbara J. Flagg, and this body of work is of great historico-theoretical importance. One must underline, however, that this dismantling or dissolving of that whole social construct called “race” need not and should not become anything affirmative at all–such as, most clearly, an affirmation of diversity. It is a spending that does not explicitly produce new works, does not build anything, does not begin from the idea of “humanity” or “diversity” in order to divest itself of privilege. Such affirmative action does not have any concept in advance of “who” will appear at the limit of such expenditure. In this sense, affirmative action is neither action, in the sense of a positive project or a building up of something, nor, strictly, affirmative of anything, including constitutionalism itself. Indeed, such a version of affirmative action would take one necessarily and theoretically to the limits of U.S. constitutionalism and sovereignty in order to confront its structurally embedded ruling class in the form of, for example, a conception of citizenship as a work or a labor that is judged or determined in terms of its completeness. (In terms of the Japanese exclusion act cases, it was precisely this citizen-structure that permitted the ascription of the Japanese as foreign nationals, who had somehow not yet worked themselves into the figure of “Americans.” The question of the truth of matters of Americanization is not at stake here, but merely the bare politico-social scientific structure known as the “citizen.”) This is simply to say that rather than a process of reforming the U.S. Constitution (making it live up to its best intentions), affirmative action at its limit necessarily amounts to a dismembering of constitutionalism, to a “politics” at the edge of what Schmitt has called “the concept of the political” and toward, for example, what Derrida has briefly described as “the State as it ought to be–as a counter-institution, necessary for opposing those institutions that represent particular interests and properties” (Derrida and Ferraris 51). Another way to say the preceding would begin with Schmitt’s definition of sovereignty as the exception and continue with Benjamin’s eighth thesis on the philosophy of history, Agamben’s Homo Sacer (1995), and Michael Hardt and Antonio Negri’s Empire (2000), all of which suggest in their different ways that the exception has become the “rule” and that the modern state is characterized by a permanent state of exception (Agamben, Homo Sacer 12; Hardt and Negri 17-18). Such thought allows us to conclude that, if sovereignty is the right to declare the exception, then the limit of such sovereignty would be the exception to the exception.¹² Transformative affirmative action therefore will appear only at the limit of the present juridical order (at the limit of white supremacy).

 

This maximal form of affirmative action is entirely faithful to our understanding of the Marxist project in general, which, as Shershow suggests elsewhere, inaugurates a process of calculation in order to end the regime of calculation (Shershow 491). Affirmative action, if it is to be anything, will have to calculate itself to the limits of its calculability–to the limit at which the calculation and counting of a white privileged majority would have no meaning. The promise of affirmative action will thus remain of interest to political progressives strictly as a project that seeks to remove “race” as a mode through which the state may distinguish and exclude.

 

Affirmative action does not, however, take us to the limit of all forms of exclusivity. For example, because affirmative action begins and ends with the attempt to rationally allocate scarce resources (contracts, tenure-track jobs, graduate student fellowships, and the like), affirmative action remains complicit with the construction of social and economic classes. One certainly could imagine a future world in which the historic races no longer have meaning, yet in which the opportunity to attend an Ivy League university instead of a community college continues to be denied to some citizens. And even a policy of guaranteed higher education for all might not in itself prevent some educations from being (to borrow from George Orwell) “more equal than others.” Though “race” is an analytically distinct category from “class,” their relationship remains overdetermined, and the attempt to address one inevitably opens out onto the other (and onto still other domains of inequity, such as gender, sexuality, and the like). In the next section of this essay, we specifically take up another hotly debated policy matter of recent years in order to explore the economic implications of post-structuralist politics.

 

2. Towards a Theory of Welfare without Exclusion

 

On the subject of welfare, candidates Bush and Gore in the last presidential campaign didn’t disagree even in the measured and ambiguous way that they did on the subject of affirmative action. Rather, both candidates hailed as a significant achievement the Personal Responsibility and Work Opportunity Reconciliation Act passed by Congress and signed by President Bill Clinton in 1996, an act that ended the very idea of a federal entitlement to subsistence benefits and set strict new limits on the amount of time a family could receive cash relief. In fact, today it can easily seem as though practically everyone, on all sides of the political spectrum, agrees that the constellation of programs known loosely as “welfare”–especially the Aid for Families with Dependent Children (AFDC)–had for a long time been promoting a so-called “dependence” on the part of the poor.¹³ This apparent political consensus about welfare has somehow overcome what from another perspective might seem a broad and fundamental ideological opposition. In this apparent opposition, one side emphasizes a kind of altruism or mutual obligation (“we must help those less fortunate than ourselves”), while the other side emphasizes a kind of possessive individualism or self-reliance (“look out for number one”; “charity begins at home”). Michael B. Katz, author of a history of welfare policy in the United States, summarizes the enduring American debate about welfare in almost exactly such terms: one side asks “what do we owe each other, not simply as individuals, but as a community or nation?” while the other side seeks to strengthen an “open market in which responsible individuals [can] carve out their success or accept the consequences of their failure” (Katz 332-3). The first of these positions is typically thought of as liberal or Left, the second as conservative or Right. We want to argue, however, that the prevailing consensus about welfare is not simply the triumph of the conservative position, but rather a kind of internal collapse of the opposition itself, something that takes place at the conjunction of questions of common being and the economic calculus.

 

The thought of the Left seems to focus on the first of these terms, grounding our social obligation in what Michael Walzer, for example, calls our “membership” in a particular community, a particular commonality of being. For Walzer, “the members of a political community owe to one another… the communal provision of security and welfare” (Walzer 63). The members of a community provide for one another, and they do so precisely on the basis of their membership: the immanent common being they share with other members.¹⁴ This is a vision of communal inclusion founded, in the most basic sense, on an exclusion, for members of a community owe one another, as Walzer puts it, “mutual provision of all those things for the sake of which they have separated themselves from mankind as a whole” (65). And just as the communal membership requires separation from and exclusion of other social subjects, so it must involve an act of economic calculation. In other words, when we ask, to whom are we obligated and why?, we must then also ask, how much do we owe one another? how much can we afford to give? For further example, the liberal economist Robert M. Solow, in his Tanner lectures at Princeton University in 1998, begins by denouncing the so-called “welfare-reform” bill of 1996 but nevertheless advocates a model of welfare that (citing Amy Gutmann’s introductory summary) “is guided by two explicit aims: one, to increase self-reliance among those citizens who are now on welfare, and two, to decrease the need for altruism among those citizens who now pay for welfare” (viii). Altruism itself, Solow concludes, “is scarce; there is never enough to go around” (3). In such a model, social policies, even of the most “liberal” or “progressive” kind, are literally constituted by acts of calculation, for not only material resources but sociality itself is grasped as being in short supply.

 

Correspondingly, the conservative or right-wing approach to social welfare, however much it seems to emphasize individual responsibility and self-reliance instead of altruism or mutual obligation, does not simply turn the other position inside-out to suggest that we owe one another nothing. On the contrary, conservative approaches to welfare envision an even more complex and subtle network of mutual obligation.¹⁵ In this case, the connection of common being and the economic calculus is even more fundamental, since what is believed most to unite us is our status as economic subjects of a particular kind, whose behavior is the aggregate product of a balance of needs and exertions, and who must accordingly be constantly subjected to the goad of subsistence and survival. The basic conservative position can thus be schematically summarized like this: poverty occurs when individuals are either unable or unwilling to work. When people are truly unable to work because of factors beyond their control, such as a crippling disability, they are “deserving” of economic support, and the community is obligated to give it. But more often, people are merely unwilling to work, either because of some moral weakness such as drug addiction or because they are just plain lazy. In this case, it is argued, to relieve their poverty merely rewards and encourages their moral failure and makes them dependent on what more extreme ideologues like to call the “public trough.”¹⁶ Therefore, any system of organized charity or welfare always tends to foster rather than alleviate poverty; our moral obligation to prevent “undeserving” objects from receiving relief is, if anything, even greater than our original obligation to give.

 

In recent years, this argument has been expounded at length by an interrelated group of social scientists and historians, including, among others, Martin Anderson, George Gilder, Gertrude Himmelfarb, Lawrence M. Mead, Charles Murray, and Marvin Olasky.¹⁷ (The latter also coined the slogan “compassionate conservatism” on which George W. Bush successfully campaigned for president in 2000, a slogan that in this context is revealed as referring specifically to the thesis just summarized by denoting an alleged mode of proper compassion characterized by its refusal to give to the “undeserving” poor. We will only cite one brief example, since all these writers make essentially the same argument and often cross-reference one another. Murray, in his introductory remarks to one of Olasky’s books, argues that even if our society went far beyond all previous models of welfare relief and literally “put everyone above the poverty line with a check,” this would simply mean that “families that once managed to stay above the poverty line through their own labor” would begin “to take it a little easier,” producing “significant reductions in work effort.” Therefore, to provide welfare in the form of cash relief, Murray asserts, “is an efficient way to increase the size of the underclass, not reduce it” (Murray, “Preface” xiii-xiv).

 

To compare these apparently opposed visions of Left and Right is to see clearly how they merely propose what might be called negative and positive versions of the same argument: the Right emphasizes how a kind of naked and impersonal economic coercion forces people to be self-reliant, and the Left emphasizes, instead, helping people to help themselves… to be self-reliant. As Judith N. Shklar suggests,

 

What is really astonishing is the degree of agreement between these critics and defenders of welfare. Independence, exchanging the welfare check for a paycheck, is what both sides hope for. All want to make good citizens of the “underclass” by getting them a job and making them, too, earning members of society. (96)¹⁸

 

And for either Left or Right, the seemingly inevitable claims of common being, however such being is understood, always require an exclusion: we will provide for our own, we will not relieve the “undeserving” poor, and so on. And such observations also further indicate how, for Right and Left alike, scarcity itself remains the one utterly irreducible assumption, and therefore the economic calculus remains the one essential and forever-unfinished operation of all social thought. It is here that one rediscovers, on the axis of class, a version of the same formula we previously uncovered on the axis of race. Just as the prevailing logic of affirmation action can never go past the point where white privilege senses its disturbance, so the prevailing logic of welfare can never relieve poverty all the way down, to the point where economic privilege itself might be threatened. Here, conventional liberal or conservative approaches to the question of poverty converge in a kind of aporia, an argument whose fatal circularity is hidden in plain sight–precisely because its fundamental underlying assumption both addresses and itself appears as what might be called “nature,” the ultimate otherness of material Necessity itself. People require the goad of subsistence, it is argued, in order to keep them working. And they must be kept working in order to subsist. Need keeps us working and work overcomes our need. But this means that the one absolute assumed in every version of this thought, subsistence itself, is in effect something that cannot and must not be guaranteed. Our daily victory over scarcity is the condition of our very existence and also something that cannot be ensured in some political or social sense as an expectation or a right. Subsistence itself must always be both present and absent; for only the threat of its absence produces its presence. Or, to phrase this ruinous argument in its most absolutely paradoxical form: in order to overcome scarcity we must never overcome scarcity.

 

This paradoxical and self-defeating logic, we go on to argue, underlies a pair of interrelated Supreme Court decisions that were issued about thirty years ago, but whose primary themes continue to figure centrally in contemporary debates about welfare. At the time of the first of these decisions, Shapiro v. Thompson (1969), the Warren Court–now approaching its end and already, of course, celebrated for its innovative decisions in civil rights–had seemed to some observers to be on the brink of declaring a constitutional “right” to economic subsistence, a hope that was, however, effectively dashed the following year with Dandridge v. Williams (1970).¹⁹ In Shapiro, the Court struck down durational residency requirements in Connecticut and several other states, laws that required a needy family to establish residence in a state for one full year before becoming eligible for welfare benefits. In briefs submitted to the Court on both sides of the case, it was acknowledged that such policies descend from the so-called “poor laws” of Elizabethan England and early colonial America, laws that prohibited indigent persons from leaving their own parish and established draconian penalties for vagrancy.²⁰ For example, Robert K. Killian and Francis J. MacGregor, attorneys general of Connecticut, acknowledge in their appellant’s brief that the central question of the case is

 

whether unlimited migration of those poor who do not want to enter the labor market should be allowed, with the end result that Connecticut’s liberal program would be curtailed because of this additional tax bite, or whether Connecticut should set up a reasonable residence requirement that protected… those poor resident applicants, who in the past, had contributed to the economy. (LBA 68: 10)

 

In other words, the appellants argue that durational residency requirements are necessary to prevent indigents migrating to a state with relatively higher benefits and hence putting pressure on that state’s welfare budget.

 

The issues in this case thus locate themselves precisely at the fatal intersection of common being and the economic calculus, for there would be no dispute at all if there were not different levels of welfare benefit in different American states. In effect, three different levels of identity are at issue in this question: citizenship in a particular state, citizenship in the United States, and membership in a common humanity–this latter, in the discourse of this case, explicitly understood as a mode of being characterized by particular needs and a particular degree of willingness to work for the sake of the community (or, as the appellants put it, to “contribute to the economy”). The appellants defend residency requirements in the name of that social calculation which all modes of common being seemingly make necessary and by emphasizing the most particular mode of identity or common being at issue. Killian and MacGregor concede that the state of Connecticut was, in its laws, discriminating “against potential applicants [for welfare], who come into the state… to get on the welfare rolls, and who would not come into the state if there were no liberal welfare benefits” (LBA 68: 24); but stipulate that such discrimination is not “racially aimed” (LBA 68: 7) and is therefore not a “suspect” classification. Instead, the classification is made only as part of a necessary process of quantitative provision: that is, because “there is a practical limit to the amount of tax dollars that can be raised” to provide for the “members” of the state of Connecticut (LBA 68: 37). Correspondingly, another advocate for the appellants, Lorna Lawhead Williams of Iowa, defended her state’s similar welfare residency laws during oral arguments as something made necessary by the attempt to balance individual and communal needs. Williams claimed that the distinction between residents and nonresidents is reasonable

 

because it affords the ones who want to have a sort of permanency in that community and have the professionally hired counselors come into their homes and help them on their family problems…. They help them. They consult with them. They have a friend in the community, besides just bread and butter money. (LBA 68: 339)

 

In this argument, it is made particularly clear how one must allegedly exclude in order to include and must discriminate against outsiders in order to maintain the intimacy of the community itself.

 

Against such claims, Archibald Cox, representing the appellees, moved the argument back towards broader modes of identity and common being. He successfully convinced a majority of the court that welfare residency requirements, precisely in their intended protection of the integrity of individual state borders and budgets, infringed on a constitutionally protected liberty: the right to travel. “Our constitutional law,” Cox writes in his brief for the case, “recognizes the basic human right to geographic mobility,” a liberty that “was a key element in our development as a free people” (LBA 68: 100). (Cox even points out, in a telling historical detail, that the Articles of Confederation except “paupers and vagabonds” from what they otherwise guaranteed to be “free ingress and regress to and from any other State,” but that this exception was omitted in Article IV, Section 2 of the U.S. Constitution, which declares that “the Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens in the several States” [LBA 68: 100].) Cox also argues eloquently that the classification at issue in this case

 

is made in relation to the bare essentials of life, material and spiritual. Public assistance is the last resource of those unable to support themselves…. For those who cannot satisfy the one-year-residence rule, the classification means deprivation of shelter, food, and clothing. When public assistance is withheld, the entire quality of life–sometimes even life itself–is placed in jeopardy. (LBA 68: 92)

 

In effect, Cox’s argument evokes a common human identity defined this time not by its duties and responsibilities but by its brute material needs. Thus, as he said in oral arguments, the policies in question discriminate against “those who exercise the fundamental liberty of moving to a new residence in pursuit of better opportunities, better life, or what else they consider to be an advantage.” Such a discrimination, he argued strongly, “is invidious in the same sense that discrimination on grounds of race or religion is invidious” (LBA 68: 390). Cox thus tried to associate a discrimination against short-time residents with the kind of racial categories already recognized as “suspect” classifications and therefore requiring a state to have “compelling” reasons in order to employ them.

 

Such arguments prevailed with the majority of the court. In his decision, Justice William Brennan rejected the communitarian language of insiders and outsiders and, echoing Cox’s language of biological necessity, argued that durational requirements merely created

 

two classes of needy resident families indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction. On the basis of this sole difference, the first class is granted, and the second class is denied, welfare aid upon which may depend the ability of the families to obtain the very means to subsist–food, shelter, and other necessities of life…. [The] appellees’ central contention is that the statutory prohibition of benefits to residents of less than a year creates a classification which constitutes an invidious discrimination denying them equal protection of the laws. We agree. (Shapiro 627)

 

Citing Korematsu v. United States and the established doctrine of “compelling” state interests, Brennan also argues that when welfare applicants move from state to state, even if they are doing so to seek higher welfare benefits, they are “exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional” (Shapiro 634). For the majority, none of the several reasons proposed as justifications for the state’s interest in welfare residency requirements–such as protecting state budgets or discouraging immigration by indigents–appeared sufficiently compelling.

 

Shapiro‘s rejection of durational residency tests for welfare would thus seem to be a significant victory for a relatively inclusive vision of welfare rights. But the logic of this case actually conceals a theoretical limitation, at once broad and particular, on the concept of collective provision.²¹ As we have seen, Cox’s successful argument for the appellees emphasizes that residency requirements infringe a constitutional right to travel and suggests that welfare is different from other state-provided benefits because it addresses fundamental human needs. In several exchanges during oral arguments, however, Cox and the Court seem to indicate a crucial point at which the provision of even such basic necessities can be limited. This limit is never quite spelled out and yet is shadowed by the very reticence with which Cox and the justices avoid spelling it out. This process begins when Cox is in the process of questioning the various rationales that are being used to explain the state’s alleged interest in durational residency requirements. One such argument is the idea that such requirements provide an objective test of residence.²² Cox suggests that “one has to be very careful” about this concept, because

 

Residence under the Social Security laws means residence–means presence in the state. Living there. Not for temporary purpose. In other words, without the intention of going somewhere else. (LBA 68: 393)

 

Here, Cox seems at first to say that residence is no different than simple presence, but then immediately begins to limit such a definition. He concedes that residence must not be for a “temporary purpose” and says there must be no intention to leave; yet he pointedly refrains from the more obvious possible formulation: that residency requires a positive intention to stay.The Court, perhaps understandably, wants to know more about precisely what this means:

 

THE COURT. Suppose he wanted to stay in Massachusetts six months–live as a resident?
MR. COX: He would then be a resident.
THE COURT. And live in Florida six months as a resident?
MR. COX: Well, it would then be–it’s a little hard for me to think of someone doing that and still qualifying for Aid to Dependent Children, Your Honor. The very money spent going back and forth–
THE COURT: You can’t laugh that proposition off, because that’s a very common thing in America.
MR. COX: Well, I suggest it isn’t a common thing in relation to the types of people we’re talking about here. (LBA 68: 393)

 

Let us mark in passing the rather dark irony that surfaces momentarily here in the acknowledgment that a political freedom to travel is not the same thing as a material ability to travel. In 1956, Supreme Court Justice Felix Frankfurter, in a concurring opinion on another case involving issues of wealth and poverty, had cited Anatole France’s ironic praise of the “majestic equality” of a Law that “forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread” (Griffin v. Illinois 351 U.S. 12, 15). The Shapirodecision in effect makes the same point in reverse, by affirming how the law permits both rich and poor to spend six months of the year in Florida if they can afford to get there. At this point, however, the Court still wishes to press Cox on this difficult idea of what it means to “live as a resident” in a state:

 

THE COURT: But how long must he be a resident?
MR. COX: Such a person under our position, to answer you squarely, such a person under our position would be entitled to aid six months in Massachusetts and six months in Florida….
THE COURT: That, Mr. Cox, is subject to the right of each state to take a reasonable time to authenticate the bona fide residence in the state, and the “means test,” and the various other things.
MR. COX: Oh, yes, quite…. The point that I want to emphasize with respect to this test of residence is that one must ask what is it that you are trying to test? I think that it lurks behind that expression…. We are really asking more permanency than being in the state voluntarily with no intention of leaving. And to the extent that something more lurks there, then our answer is simply that requiring the “something more” is itself an arbitrary and capricious classification. (LBA 68: 393-4)

 

Something “lurks” behind the demand for residency, Cox suggests–his very image seeming, as it were, to evoke the homeless vagrant lurking in the doorways and back alleys of civil life. Cox rejects whatever “lurks behind” this demand for a so-called “permanency” that in some elusive way transcends mere physical presence in the state. This term, Cox seems to imply, is simply a coded expression for something that, in political discourses of early-modern England and America, might have been called a “settled interest,” a minimum level of income or property (the kind of criteria that used to be required, prior to and sometimes after the American Constitution, even for suffrage itself).²³ Cox also rejects the idea argued in the Connecticut brief that permanent residents are those who have made an “investment” in the community, pointing out that AFDC is designed in the first place to aid “dependent children,” who can hardly be said to have yet contributed anything to any community anywhere. Moreover, he says, since it is generally impossible to “measure the matter of ‘contribution’ or ‘investment’ in the community… this is really a euphemistic way of expressing… discrimination against strangers, or outsiders” (LBA 68: 396). But the specific citizens discriminated against in this case (by their exclusion from welfare benefits) are already being considered, at least by Cox, as full-fledged residents. Does one then cease to be a stranger and outsider at the very moment of arrival at a given place, provided only that one has no “intention of going somewhere else”? This question is necessarily pertinent in that this whole exchange follows Cox’s rejection of the idea that requiring a one-year stay would provide the state with an “objective” test to determine whether or not an individual was a genuine, bona fide resident.

 

But even as Cox systematically rejects all these related ideas of permanency and economic interest as appropriate criteria for welfare eligibility, he still accepts that there is some basic status that can be called residency. In fact, he is constrained to do so, for it is the heart of his argument–as Justice Brennan restates in the passage from the majority decision cited above–that durational welfare requirements do not merely distinguish between insiders and outsiders, residents and nonresidents, but instead between two classes of resident. But this “bona fide residence in a state” that both Cox and the court agree is a legitimate distinction appears to be a deeply problematic status, since it is constituted neither by simply being in the state, nor by a particular duration of time spent there, nor by having a “settled interest” of property and income. A radical indeterminacy seems to be inscribed not only in this all-important concept but also in the parallel idea of travel and migration against which residency must be defined. A few moments later, in fact, the Court draws from Cox another significant qualification:

 

THE COURT: I haven’t quite understood how all the arguments are going on the assumption that the right to travel from place to place is precisely the same as the right to live where you please.
MR. COX: Well I think that I have sought to stress the right to live where you please as the basic right. It seems to me that the right to journey, to make a pleasure swing around the country or to go to Europe, raises different problems and is a lesser right, I would think. And my case–Your Honors emphasized a point I should have made more sharply, perhaps. Our case deals with the right to live where you please to seek better opportunities.
THE COURT: That’s what I think this resolves itself into, instead of the right to “travel.”
MR. COX: I agree. (LBA 68: 397)

 

Even though the salient issue of Shapirois repeatedly defined as the right to travel, the case would indeed seem, as Cox concedes here, to be more precisely understood as being about the right to migrate, to “live where you please to seek better opportunities.” This more specific word does briefly appear in the majority decision:

 

An indigent who desires to migrate, resettle, find a new job, and start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute. But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible. (Shapiro 629; emphases added)

 

In this passage, migration refers to the act of a person who goes somewhere to settle or make a life: the act of the pioneer, the homesteader, or the immigrant, the very dramatis personae of the American dream. In many respects, the appellees’ winning case depends on the ideological force of this image, as against an equally ideological contrast between the homeless vagrant and what the Court calls the “old families” of a well-established community (401). In his majority decision, for example, Brennan argues that residency requirements are grounded in the assumption “that indigents who enter a State with the hope of securing higher welfare benefits are somehow less deserving.” By contrast, Brennan writes,

 

we do not perceive why a mother who is seeking to make a new life for herself and her children should be regarded as less deserving because she considers, among other factors, the level of a State’s public assistance. Surely such a mother is no less deserving than a mother who moves into a particular State in order to take advantage of its better educational facilities. (Shapiro 631-2)

 

In such a passage, Brennan in effect displaces the ideological specters of the “welfare queen” and the “lurking” vagrant by imagining the kind of person at issue in this case as a devoted mother moved by a spirit of independence and rational economic calculation to seek out a better life for her family and herself. The force of the image is almost enough to conceal how this description also implicitly accepts the conservative principle that relief should, in any case, go only to what Brennan frankly calls the “deserving” poor.

 

Nevertheless, the word “migrant” inevitably evokes another meaning that indicates the absolute limit of what might be thinkable by the prevailing logic of welfare. This becomes clear in another exchange a few minutes later:

 

THE COURT: Mr. Cox, I’ve come across statements to the effect that in some of these states that have fine climates, such as the far Western states, the children of migrants are not allowed into the public schools because they don’t satisfy the residence requirements; and also the same sort of statement with respect to access to state health facilities. Assuming that that’s so, does that present a related conceptual problem?
MR. COX: Well I would think the genuine migrant presented a different problem, that here we are talking about someone who is not moving from place to place. I don’t mean to suggest, Your Honor, that there isn’t ground for a constitutional attack in those cases, but I do suggest that at least from the standpoint of what we’re dealing with–
THE COURT: But a negative answer here–would a negative answer here indicate, a fortiori, a negative answer in–
MR. COX: You mean if we were to lose these cases?
THE COURT: If you were to lose these cases, would that indicate a negative answer in the case of the migrants who are denied an opportunity to go to school?
MR. COX: I would think it clearly would even enable Connecticut, say, to say that it would not admit to the schools in Greenwich and other places near New York the children of people who move out from New York to Greenwich because there are better schools there (403).

 

This striking passage both insists on and yet virtually refuses to name or consider the migrant worker as the limit case at which the whole argument finally arrives. The force of the discourse in the current case tends to exclude the migrant from consideration, by focusing on residents who are said to be equal in status and therefore entitled to “equal protection” under the law. Yet the figure of the migrant worker forces itself into the argument here, much as it did implicitly in Cox’s previous reference above to “strangers” and “outsiders.” The Court seems to ask, though perhaps not very clearly and with a kind of reticence, about the implications of the current case for the much more drastic residency restrictions imposed on migrant workers, who are often, as he mentions, excluded from even the most basic state services such as elementary education because they lack even the intention to stay in the place they happen to be. If the Court should decide in this case to allow states to deny welfare benefits even to immigrants in the positive sense (those who arrive intending to stay), then states will surely believe they can deny services of any kind to the mere migrant. Cox assents to this conclusion, though only in the most indirect of ways: by displacing the already-ghostly figure of the migrant worker with that of the citizen who moves from the city to the suburbs because they have better schools there! One suspects that Cox’s incongruous counterexample is intended to reassure the Court that more is at stake here than the rights of those whom even that tenuous and indefinable status of “resident” eludes. At any rate, one thing is clear about the decision reached in this case. Although it is still commonly argued that “Residency as a factor in determining eligibility for public assistance was declared illegal… in the case of Shapiro v. Thompson (Trattner 21, n. 3), the real fact is, as Edward Sparer summarizes, that “Shapiro bans durational residency tests, but not residency tests.” The decision thus permits the states to “bar the nonresident citizen from receiving welfare benefits,” and “the principal group of persons to whom this distinction applies is the migratory workers who move from state to state for the purpose of working in the field” (76). The migrant worker is thus a kind of absent presence in a case whose specific positive effect–the striking down of durational requirements for AFDC–seems in its whole force and absolute principle to license his exclusion from social welfare in every sense. Even more broadly, this case affirms certain rights and freedoms only by limiting them and extends welfare benefits to newly arrived residents only by excluding the nonresident.

 

Such conclusions are further confirmed by the obvious observation that the figure of the illegal alien or migrant worker, present in this case only in his nearly total absence, is by contrast central in other discourses about welfare. To cite an almost random example of an all-too-familiar discourse, Senator Strom Thurmond, a few years before the welfare reform bill of 1996, made the argument that such a bill would be necessary

 

to limit the rising tide of illegal aliens who, attracted by the many advantages of living or working in the United States, flood across our borders and take jobs from American workers. In many cases, those illegal entrants and their families soon become a welfare burden on our society, supported in one way or another by the American taxpayer. (qtd. in Harris 186)

 

Correspondingly, the “welfare reform” act of 1996 placed explicit new limits on what it also carefully identifies as three different kinds of migrant or immigrant: Americans moving between states, “qualified” (that is, legal) aliens from outside the United States, and illegal aliens. For the first class, the bill authorized any State to “apply to a family the rules (including benefit amounts) of the program… of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months” (United States 20).²⁴ The second class, qualified aliens, were declared “not eligible for any Federal means-tested public benefit for a period of 5 years beginning on the date of the alien’s entry into the United States” (United States 161). And as for the third class, which would, of course, include the majority of migrant workers, the law provides that “an alien who is not a qualified alien… is not eligible for any Federal public benefit” (United States 157). In the debates leading up to and following the passage of the bill, some liberal voices particularly deplored such provisions, and President Clinton promised that “if reelected he would fix a flawed welfare law” (Weaver 336)–though this promise (unlike his famous original promise to “end welfare as we know it”) was at best partially fulfilled by provisions of the 1997 budget, which restored some benefits for disabled immigrants. And in any case, it was merely the restrictions on welfare for legal aliens that were even at issue. Our analysis suggests, by contrast, that limitations on welfare for “strangers and outsiders” are in no sense merely peripheral to the bill’s overall purpose but rather quite central to it. Indeed, the fact that, as most studies suggest, illegal migrant workers pay more into state budgets (via payroll taxes) than they ever receive via welfare also merely confirms, by contrast, that such policies do not really respond to material social problems but emerge, rather, from the kind of enduring habits of thought sketched here.

 

Early in the year following Shapiro, the Supreme Court issued another decision on welfare that is, by contrast, generally considered a profound defeat for welfare rights. In Dandridge v. Williams (1970), the Court upheld the constitutionality of laws in Maryland (and, by extension, of numerous similar laws in other states) that set a maximum cap on the welfare benefits available to a given family. In Maryland, specific welfare benefits were paid to each needy family under AFDC according to a formula calculating the minimum level of subsistence income necessary per child; yet the state also set a maximum limit of $250 per month per family and thus failed to provide additional benefits for any family with seven or more members–five children with two parents, or six children with one parent. Like Shapiro, this case thus also locates itself at the intersection of common being and the economic calculus. In this case, it is implicitly conceded by both sides that human beings are united by a common level of material and financial need that can be precisely determined by the state. There could have been be no dispute at all if there had not been that initial act of calculation by the state to determine the minimum subsistence level for a family of three, four, or five people, and so forth.

 

At the simplest level, then, the Court’s decision is a negative one: that is, it rules that a state need not support people according to the state’s own calculation of their needs. Such a conclusion is, moreover, itself made in the name of calculation. As Justice Potter Stewart writes in the majority decision, the Maryland law is justified as an attempt to “reconcile the demands of its needy citizens with the finite resources available to meet those demands” (Dandridge 474). Cutting off the larger families from additional benefits is one reasonable way, the majority argues, of rationing an overall welfare budget that is evidently too small to meet the needs of collective provision in the state. At the end of the majority decision, Justice Stewart once again portrays the Court’s actions in negative terms: as simply a refusal to intervene in matters best left to the wisdom of state lawmakers:

 

We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. (Dandridge 486)

 

In fact, however, the negative form of the principle affirmed in this decision necessarily entails a positive version of itself, one that indeed has fundamental economic, social, and philosophic consequences. This positive principle might be formulated something like this: the State must calculate a standard of material need for its citizens and yet must not meet that standard. The brief for the appellants frankly acknowledges that the laws at issue here continue to reflect long-standing fears about the “undeserving poor,” citing the conclusions of the British Poor Law Commission of 1835 that the situation of people on relief “shall not be made really or apparently so eligible (desirable) as the situation of the independent laborer of the lowest class” (LBA 69: 60). They also cite Arthur Burns, at the time a counselor to President Nixon on domestic affairs and soon to be Chair of the Federal Reserve bank, who claims that “there are… States in which the welfare payments going to the family are larger than what an unskilled man working at or close to the minimum wage can earn,” which “stimulates some people to leave work and join the welfare population.” To avoid this, Burns argues, the state should set “a maximum on welfare payments so that welfare is not too attractive financially” (cited LBA 69: 87). This argument, which prevailed with a majority of the Court on this occasion, and which we identified above as the quintessential right-wing approach to poverty, here grounds itself in an act of calculation that is always unfinished (that is, the state must calculate the minimum it should give and then must also recalculate how much not to give) and, even more paradoxically, grasps equality itself only in the form of inequality. In its laws, argued the majority decision, “the State maintains some semblance of an equitable balance between families on welfare and those supported by an employed breadwinner” (Dandridge 486). But what the Court means, to speak in coldly practical terms, is that welfare families must have less than the working poor: the “equitable balance” of which he speaks literally exists in the form of a material inequity. To be as clear as possible, in this case, the law devotes itself with its full force and principle not to ending privation, and not even, at least after a certain point, to relieving privation, but instead, quite precisely, to preserving it.

 

This paradoxical logic only deepens when one considers the appellees’s unsuccessful argument that family caps for welfare infringe on the constitutional doctrine of Equal Protection. The maximum grant regulation, write Joseph A. Matera and Gerald A. Smith in their appellee’s brief, creates “two subclasses of AFDC recipients, those who are members of large families containing seven or more people and those who belong to families of six members or less” (LBA 69: 125). And as for the additional children in large families, Matera suggests in oral argument, “the State computes their needs, and then simply ignores them” (LBA 69: 298). The Court points out, however, that the state formula does not simply provide a particular dollar amount per child but rather employs a sliding scale, giving “$30 a month for the first child, and $25 a month for the second child” and so forth (LBA 69: 300). It would thus seem difficult to make an equal protection argument in terms of individual children within families, as opposed to between families as a whole. To be sure, the state makes its initial calculation on the basis of the number of children in a family. But, as the Court suggests:

 

THE COURT: …$30 isn’t allocated to A, and $10 to B, or anything like that?
MR. MATERA: No, sir. It’s dependent upon the number of individuals in the family.
THE COURT: So, when the State sets a maximum of $250, that money is allocable among all members of the family. It doesn’t mean that the State doesn’t think the seventh child is going to not share at all in the $250.
MR. MATERA: I would disagree, in this respect, Mr. Justice White, because the State does think that…. Because when they looked at… the number of people in that family, they said that in order to live you need $331–
THE COURT: Well, I understand that.
MR. MATERA: …But, of course, the welfare department would believe that the mother would take those funds which already are available, and certainly divide them among the children, because she wouldn’t allow certain children to starve merely because their needs are not recognized, you see. (LBA 69: 305)

 

And again, similarly, in the final moments of the oral arguments:

 

THE COURT: …it’s not the fifth, or sixth, or seventh, or eighth child that necessarily suffers. It’s the whole family’s income that is reduced, on a per capita basis.
MR. MATERA: That would be the practical effect, because a parent would simply not let its child starve. (LBA 69: 310)

 

At this point, it is hard not to hear a hypothetical rejoinder that Matera’s words seem irresistibly to evoke: that although a parent would simply not let its child starve, a state would. To be precise, however, the Court is simply claiming that because of the possible economies of scale and, even more so, the emotional bonds of the family as such, the “fifth or sixth child in a family” will “eat right along with the rest of them,” so that the law “just means that everybody [in the family] would eat less” (306). As the majority decision puts it, more formally:

 

Although the appellees argue that the younger and more recently arrived children in such families are totally deprived of aid, a more realistic view is that the lot of the entire family is diminished because of the presence of additional children without any increase in payments. (Dandridge 477)

 

Thus, as it were, the additional children are not entitled to a claim of equal protection under the law precisely because they belong to a collectivity: they are members of a kind of mini-community within which they will be provided for, if not adequately, then at least equally with all its other members.

 

Our primary point here is not that this claim about the intrinsic equality of the family is spurious, as a whole range of feminist work on familial relations and domestic abuse has vividly suggested. Nor are we primarily observing that these so-called “family caps” on welfare (which remain central in contemporary debates on the subject) are obviously conditioned by the ideological fantasy of the “welfare queen” who has additional babies in order to get larger welfare checks. Rather, we want to emphasize how this decision grounds itself on the alleged existence of this domain of absolute, unconditional collectivity and equality, the family, which it uses to license or justify a vision of society and the state understood as, by contrast, fundamentally individualistic and unequal. Within this logic, the family is assumed, by some mysterious and nonnegotiable necessity of its own nature, to care for each new member within its preexisting material capabilities, however limited they may be. The whole purpose of the AFDC program from its beginnings, the appellees argue repeatedly in the discourse of this case, is to “make it possible for the child to remain in or return to the custody and care of his parents or relatives who have a natural bond of affection and concern for his well-being” (LBA 69: 45; paraphrasing the Social Security Act, 42 U.S.C.A. 601). Indeed, the appellees observe how the Maryland Code itself declares that the primary goal of AFDC is “the strengthening of family life” (LBA 69: 135, citing Maryland Code Annotated Article 88A, Section 44a [1064]). Only via the achievement of this goal does the program in any sense even attempt to achieve what might otherwise be understood as the broader and more fundamental goal of enabling “the child’s unmet need to be supplied” (LBA 69: 45). The welfare reform bill of 1996 operates with precisely the same logic. This bill amends Title IV of the Social Security Act in a fundamental way: on the one hand, it continues to state that the fundamental purpose of welfare is to “encourage the formation and maintenance of two-parent families,” and on the other hand, it specifically licenses states to enact “family cap” limits on welfare and stipulates that its programs will not “entitle any individual or family to assistance” (42 USCS 601 [2001]). So, one more time, let us be plain: precisely as it strips away any protection against scarcity from almost every space of social life, the law also claims to be fostering a specific domain of irreducible collectivity called “the family” within which, allegedly, our most fundamental needs may somehow always be met.

 

3. At the Limits of Community

 

The two figures our readings have discovered at the center of these cases about welfare, the migrant worker and the family, represent as it were the positive and negative limits of common being itself. The migrant worker is excluded from the process of mutual provision in the familiar positive way, because of his race, his national identity, his lack of a settled interest or even a permanent residency in a place. With the family, however–or at least with this hypothetical vision of the family–the very idea of common being encounters something that exceeds it: that is, our national identity as Americans binds us less than this imagined family does. Thus, even as our analysis pointed to a theoretical exclusion of the migrant at the heart of the seemingly inclusive logic of the Shapiro decision, so the brutal language of indifference in Dandridge could also be read as announcing the possibility of something very different: a sphere of limitless, open-ended inclusivity, where all, as the Court suggests, will “eat right along with the rest.” In this imagined collectivity, mutual provision evidently takes place without thought; or, more precisely, takes place via a calculation that, instead of being forever-unfinished, is rather always-already in excess of itself. And to do no more than extend the same hypothetical model in the other direction, every kind of abundance would, one can only assume, be similarly shared without thought or calculation–or, again, more precisely, shared via a process of calculation that undoes itself by being shared.

 

In this case, indeed, the brute fact that real families do not necessarily embody this model is precisely what allows it to reemerge as a new possibility in theory and in practice. For this is not, of course, to suggest that a state should think of itself as one big happy family, a model long ago contaminated with the worst features of patriarchal oppression. It is, rather, to suggest that at one and the same point where a model of community based on common being reaches its negative limit, one recognizes, by contrast, what Jean-Luc Nancy in The Inoperative Community calls the community of our being-in-common. The various models of mutual provision considered throughout, whether in relatively liberal, communitarian versions, or relatively conservative or libertarian versions, grasp community only as a unity of subjects who have something in common and whose obligation to other members always retains a fatal circularity: each subject is obligated to help create and preserve other subjects who are themselves defined by their capacity and willingness to undertake the same obligation. In such a model, as we have observed, the community does not and cannot end privation or poverty, since the threat of these things constitutes not only what is understood as the necessary goad of survival, but indeed the very glue of the social bond itself. In the community for which we argue, by contrast, singular beings join together on the basis of having nothing in common, that is, they have in common only their own finitude and consequently their exposure to both scarcity and to one another. Here, the inescapable neediness of finite beings is grasped not as their weakness or reproach but as their access to a collective wealth that is, if not infinite, then at least without limit. As against what even progressives tend to suggest is a necessary conservation of altruism (e.g., Solow ix), the community of being-in-common begins in the recognition of what Emmanuel Levinas calls the “plenitude of alterity”: a relation to the Other that is incommensurable and that therefore exceeds all calculation (Levinas 345). This community has no inside or outside and therefore no insiders or outsiders; it is a community (and an economy) of an all that remains forever open, an all thought so radically that this word would no longer even be an appropriate term to calculate it.

 

Here, similarly, the very idea of “welfare” shifts–rather as T. H. Marshall suggested over thirty years ago but exceeding his suggestion–from its negative to its positive sense, from the ideas of “relief” or “insurance” or “safety net” to the much broader and more basic semantic idea of well-being. Marshall argues that the provision of welfare in this sense to everyone cannot exactly be a legal right as such, precisely because such a right would have to be calculated, quantified, and legislated; instead, he suggests, it can only be provided via what he calls “discretion,” an operation that does not ask, “‘what do the regulations say must be done?’, but ‘What action is most likely to produce the desired result?'” (87-88). And, he goes on, “this notion of discretion as positive, personal and beneficent can only be fully realized in a ‘welfare society’, that is, a society that recognizes its collective responsibility to seek to achieve welfare, and not only to relieve destitution or eradicate penury” (88). Marshall’s own thought unfortunately also illustrates how easy it is for this discretion to simply become calculation by another name.²⁵ Thus one must give a slight additional turn to his schema, understanding this “discretion” as something always performed in the name of what Derrida calls Justice: that which brings forth and yet always escapes and exceeds all notions of law and right. “It is just that there be law,” Derrida argues, but at the same time, “just justice is incalculable, it requires us to calculate with the incalculable” (“Force of Law” 16). And the evident fact that justice “is always in excess with respect to right” does not mean, as some might claim (attempting, in the familiar way, to reduce deconstruction to quietism), that justice is therefore infinitely deferred or simply unattainable. Rather, as Derrida always insists, this “excess” whose name is Justice “presses urgently here and now” (Derrida and Ferraris 23).

 

It is therefore self-evident to us that just as affirmative action makes sense only in the name of absolute deracialization, so any law addressing something called “welfare” must guarantee income, education, health-care, and the like, to all social subjects; and that the sole criterion of eligibility for such guarantees can only be finite being itself. Therefore: no one who is in any sense there can possibly be excluded from it. This process of mutual provision cannot even be reduced to what has sometimes been called a guaranteed minimum income (a formulation that simply returns to the economic calculus in its most ruinous form).²⁶ Indeed, what some would raise as objections to such a policy–that the level of such guaranteed income could not be determined in advance nor fixed once and for all, that people could and probably would always ask for it to be higher, and that to afford it would collectively require the expenditure without reserve of all economic privilege and individual wealth–are in fact its strengths. For one must understand this worldwide offering or sharing of well-being as, to repeat our formula, a process of calculation intended to undo calculation. Because all being is being-in-common, and because all community takes place, as Nancy argues, at the common limit where finite beings are exposed to one another, therefore those of us who meet at this limit (of) community literally in so doing pro-vide or look out for one another. This is not a (moral) choice, nor the product of ascetic self-denial, nor even something to be built as a Work in the aftermath of a revolution and in the name of some principle like Humanity or Equality; rather, it is the simple, inevitable (practical) condition of our existence, remaining always already to be re-revealed.

 

Some will perhaps respond, however, that this essay, far from having in any sense begun to solve the problem of the practical, has not yet even begun to address it; that all this remains mere theory, and that none of it is either feasible or realistic. People will simply not go along with it, some will say; indeed, Americans have recently shown, if anything, an increasing resistance to affirmative action and an “increasing reluctance… to support citizens on welfare” (Gutmann ix). But we observe how such objections are always themselves posed as questions of thought and yet never really presented as one’s own thought. In other words, it is not argued that racial or economic justice is somehow materially impossible; rather, it is alleged that there is some ideality, some unspecified absence or vague presence in consciousness that makes it impossible. Similarly, most people never quite say, “I am selfish”; instead, they say, impersonally or abstractly, that altruism is scarce, or that Americans are greedy and individualistic, or that life isn’t fair. The same logic always re-engenders itself: because there might not be enough, we must each grab what we can, producing an aggregate of selfishness that endlessly ensures the repetition of the same scarcity and the same response. But if the impediment itself exists only in ideas and consciousness, then where else but in what Nancy calls “the gravity of thought” could one look for the solution?²⁷ Thus the whole question of the practical necessarily evokes that exhilarating inversion that Marx articulates in perhaps his most famous single utterance–“Philosophers have only interpreted the world, in various ways; the point, however, is to change it” (Marx and Engels 145). We join others in the broad Marxist and post-Marxist tradition in understanding this famous dictum not as a simple opposition of theory and practice, intended to reproach philosophers for interpreting rather than changing the world. Rather, Marx suggests that to reinterpret the world is always, and necessarily, to change it.²⁸ We acknowledge, then, that our project here is unfinished, but this is because the community for which we argue is always “to come” and because the problem of the practical itself therefore always remains (to be) thought.

 

Notes

 

1. See Derrida, “Racism’s Last Word” (1985), and Derrida and Tlili, eds., For Nelson Mandela (1987).

 

2. The model of politics and collectivity for which we argue in this essay follows most closely the thought of Jean-Luc Nancy in The Inoperative Community. In addition to the works named in our text, other books that have influenced our thought include Maurice Blanchot’s The Unavowable Community and Giorgio Agamben’s The Coming Community. We also believe the community for which we argue to be broadly consistent with what Derrida calls “the new international” in Specters of Marx. Although Derrida has expressed theoretical reservations about the term “community,” he also acknowledges that he finally has “no qualms” about “Blanchot’s ‘unavowable’ community or Nancy’s ‘inoperative’ one” (Derrida and Ferraris 24). We join Derrida in understanding Nancy, as well as Blanchot, as affirming “a communism where the common is anything but common; it is the placing in common [mise en commun] of that which is no longer of the order of subjectivities, or of intersubjectivity as a relation–however paradoxical–between presences.” It is important to emphasize, therefore, how the thought of any of these writers always seeks to question “community in the classical sense, and intersubjectivity as well” (Derrida and Ferraris 24-25).

 

3. See the volume co-edited by Guinier and Sturm, and perhaps in particular Claude M. Steele’s contribution, “Understanding the Performance Gap” (60-67), on the problem of what he calls “stereotype threat.” During the period in which this article was written, the head of the University of California school system, Richard C. Atkinson, announced plans to “no longer require that students take the SAT I in order to apply for admission to the University,” in part because “minority perceptions about fairness [of such tests] cannot be… easily dismissed.” Atkinson’s remarks can be found at the following address: <http://www.ucop.edu/ucophome/pres/comments/satspch.html>.

 

4. The other Justices who side with Powell, it should be noted, assert in their opinion a strict construction of Title VI, for example. The matter of revised or even reversed construction principles over time is interesting, to say the least.

 

5. Reva B. Siegel’s exemplary analysis of Hopwood argues that “strict scrutiny” doctrines under the Fourteenth Amendment radically restrict the use of race-conscious remedies “in order to protect and preserve real differences among racial groups” (49). See Gotanda and also Kull, who both suggest that U.S. constitutional policy has never been “color blind.”

 

6. See Personal Justice Denied: The Report of the Commission on Wartime Relocation and Internment of Civilians (Washington, D.C.: Government Printing Office, 1982). The most salient parts of the document, including the quotation, are on the web at: <http://www.geocities.com/capitolhill/Senate/4417/personaljusticedenied.html>.

 

7. Statistics in this paragraph are from the University’s official Affirmative Action Reports, issued in October 2000, produced by the Office of the Assistant Provost and Assistant Vice President for Academic Human Resources. The quotation is from the University’s UAAO, Paulette Granberry Russell, from an e-mail, 25 January 2001. The University does provide itself some “wiggle room” on these matters, since it does break down particular minority utilizations/underutilizations separately from the general minority statistic. Nevertheless, every possible category of minority hiring for the Department of English is listed as having a hiring goal of zero, which effectively tells Chairs of Departments that no affirmative action activity is necessary. The concept of “availability” is defined on the University’s Affirmative Action Office website as: “Availability analysis estimates the percentages of minorities and women available for employment in each identified job group. Persons available are those interested and qualified to perform the work at hand during the upcoming Affirmative Action Plan year.” Michigan State University’s policies on affirmative action are contained in two documents called “IDEA” and “IDEA II.” “IDEA II” specifically links University support of affirmative action to “utilization” data: “Academic units that are underrepresented in terms of relevant availability data can work in partnership with the Office of the Provost as needed to arrange transitional funding and/or set up funds necessary to take advantage of targeted hiring opportunities when they arise, or to broaden possible recruitment or retention activities” (emphasis added; <http://web.msu.edu/access/idea2.html#enhanceeffort>).

 

8. Delgado has written about “role model” theory in telling ways (“Affirmative”). This logic, too, would have proven problematic, had the Supreme Court affirmed it.

 

9. See the Grutter companion decision, decided 27 March 2001, which overturns the University of Michigan Law School system of affirmative action admissions and explicitly sets up a future collision of Gratz and Grutter on appeal.

 

10. It is important to acknowledge here and throughout (as general inspiration for the analysis of affirmative action in these pages) the significance of Girardeau A. Spann’s work in this area, and particularly Race Against the Court, which concludes that racial minorities must recognize the Supreme Court as having functioned generally as “an antagonistic political institution rather than as a hospitable benefactor” (170).

 

11. See, for example, Klinkner and Smith for an elaboration of the limits of twentieth-century racial inequity reformism.

 

12. We borrow the phrase “exception to the exception” from Donald E. Pease, in his oral response to Michael Hardt at Michigan State University’s “Globalicities” conference, October, 2001.

 

13. Nancy Fraser and Linda Gordon suggest that “‘dependency’ is the single most crucial term in the current U. S. debate about welfare reform,” in an important essay that historicizes and critiques this term (618).

 

14. In addition to books otherwise cited, some of the many other outstanding liberal or Left approaches to welfare include Frances Fox Piven and Richard A. Cloward’s Regulating the Poor (1971; 2nd ed. 1993); Michael B. Katz’s The Undeserving Poor (1989); Joel F. Handler’s and Yeheskel Hansenfeld’s The Moral Construction of Poverty (1991) and Handler’s The Poverty of Welfare Reform (1995); Linda Gordon’s Pitied but Not Entitled (1994); Herbert Gans’s The War Against the Poor (1995); and Ruth Sidel’s Keeping Women and Children Last (1996).

 

15. Mead argues quite specifically that “obligation,” rather than mere quantitative “equality,” is the fundamental issue of all social policy, arguing that “The most vulnerable Americans need obligations, as much as rights” (Mead 17).

 

16. Senator Jesse Helms on the floor of the Senate on Thursday, 1 August 1996, alleged that “the average welfare recipient stays at the public trough for 13 years.” (Helms’s statistics are, by the way, as excessive as his rhetoric, since, as Wilson documents, most studies of welfare usage conclude that “half of all welfare recipients exited welfare during the first year, and three-quarters departed within two years” (166).

 

17. Some of the best-known works in this conservative conversation are Martin Anderson’s Welfare (1978), George Gilder’s Wealth and Poverty (1981), Charles Murray’s Losing Ground (1984), Lawrence M. Mead’s Beyond Entitlement (1986), Gertrude Himmelfarb’s The De-Moralization of Society (1995), and Marvin Olasky’s The Tragedy of American Compassion (1996). Concise samples of various writers making the argument summarized here can be found in Mehuron, Points of Light (1990).

 

18. William Julius Wilson agrees that “a liberal-conservative consensus on welfare reform has recently emerged,” which includes, among other things, the opinion that welfare recipients should be required to work (164).

 

19. Edward V. Sparer, who at the time of these decisions headed the Columbia University Center on Social Welfare Policy and Law, writes that “the particulars in the Court’s reasoning… gave great hope that Shapiro would have enormous consequences for other welfare rights. By April 1970… the Court–after a significant change in personnel–made it clear that such hope was false” (75).

 

20. See, e.g., Kurland and Casper, Landmark Briefs and Arguments of the Supreme Court (37, 108, 237). All subsequent citations from the briefs and oral arguments of both Shapiro v. Thompson and Dandridge v. Williams are from this series, henceforth identified parenthetically as LBA, with volume and page number.

 

21. Although it has different particulars, our argument about Shapiro is complementary to that of Bussiere, who suggests that Justice Brennan put together a majority decision in this case only by grounding it “in the right to interstate travel and… classical liberal values,” thus stripping the case “of its downwardly redistributive policy potential” (107). We also agree generally with Nixon, who argues “that the Supreme Court’s traditional approach to deciding durational residency requirements, while producing a sound moral outcome, is legally flawed and ultimately does more harm than good to strengthen welfare rights” (210-11).

 

22. In his dissent, Justice Stewart finds plausible, as one “rational basis” for the kind of laws at issue in this case, the idea that “a residence requirement provides an objective and workable means of determining that an applicant intends to remain indefinitely within the jurisdiction” (Shapiro 673).

 

23. In his dissent to Shapiro, Justice Harlan cites his own previous dissent in Harper v. Virginia Board of Elections 383 U.S. 663 (1966), a well-known case that ruled that poll taxes were unconstitutional. In that earlier case, Harlan had suggested that “it was probably accepted as sound political theory by a large percentage of Americans through most of our history, that people with some property have a deeper stake in community affairs, and are consequently more responsible, more educated, more knowledgeable, more worthy of confidence, than those without means, and that the community and Nation would be better managed if the franchise were restricted to such citizens” (Harper 683).

 

24. This provision seems, however, to have been declared unconstitutional by the Supreme Court’s 1999 decision, Saenz v. Roe, which reaffirmed Shapiro‘s assertion of the right to travel.

 

25. In his “Afterthought on ‘The Right to Welfare,'” for example, Marshall discusses how one British welfare agency, the Supplementary Benefits Commission, had adapted a “discretionary” model in the years following his original essay, but that such a policy had been found “to cause conflict, unhappy comparisons between the workless and the working poor and complaints from those who did not believe that they were getting their ‘rights'” (96).

 

26. This is not the place for a detailed exposition of the enduring tradition of thought concerning a guaranteed social income, or what has recently been dubbed a “universal basic income” or “UBI” (see Parijs). But we very briefly observe how one tradition of this thought, influenced in part by Henry George’s famous idea of a land-value tax, considers the natural environment as a kind of common patrimony whose value should be divided among all citizens–an idea grounded absolutely in the most mechanical kind of economic calculation. The idea of a “negative income tax” or basic minimum income–which has sometimes been advocated even by right-wing thinkers such as Milton Friedman–also tends to fall prey to questions of common being (what are basic needs?) and calculation (how much can society afford to give?). For example, Robert Solow, in his preface to Parijs, suggests “a very low-level UBI would be feasible in economic, even budgetary, terms, especially because it would at least partially replace some current means-tested transfers” (Parijs xiii). In other words, UBI would just be “welfare” or “relief” under another name.

 

27. For this phrase, see Nancy’s The Gravity of Thought.

 

28. See, for example, Resnick and Wolff 37.

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