Normative Jurisprudence and Family Law
posted by Jill Hasday
Thank you for the opportunity to participate in this symposium on Robin’s fascinating new book, Normative Jurisprudence. The implications of Robin’s arguments reach across the law school curriculum and beyond. For purposes of this post, I would like to draw some connections between Robin’s work and family law. Normative Jurisprudence can help us better understand how the law regulates the parent-child relationship.
First, Robin argues that the state frequently provides rights in ways that entrench existing power hierarchies, even as rights discourse purports to be liberating for all. Consider parental rights from this perspective. Many courts celebrate the rights they give to parents in sweeping terms, but Robin’s work can help us see how the specific rights that parents receive are often designed with privileged rather than poor families in mind. For instance, the Supreme Court famously declared in Pierce v. Society of Sisters (1925) that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” This declaration appeared in a decision holding that parents have a constitutional right to send their children to private schools. In theory, that right extends to poor parents as much as wealthy ones. In reality, poor parents have little means of affording private education.
Second, Robin argues that legal discourse prioritizing rights can actually obscure questions related to welfare. Examining the parent-child relationship through this frame is also illuminating. Poor parents may have a formal right to send their children to private school, but focusing on this right can obscure a more pressing issue that poor parents confront—the inadequacy of many public schools. Similarly, poor parents have constitutionalized procedural protections before the state takes custody of their children, but the provision of these rights can obscure how poor parents have no right to access the safe housing, adequate food, and other resources that children need to thrive. Indeed, the welfare system that exists for poor parents and children increasingly disavows the idea that the poor might have an entitlement to the basic means of subsistence. Instead, welfare programs provide meager benefits at the discretion of legislatures and routinely subject poor parents who receive these benefits to investigatory, instrumental, and interventionist state regulation.
Robin also notes how the law often treats the fact that people have consented to a legal regime as a reason to shield that regime from further critical scrutiny. The legal regulation of poor families starkly illustrates the limits of relying on consent. In theory, poor parents “agree” to the harsh and rights-denying terms of welfare programs as a condition of receiving aid, but in practice impoverished parents have few alternatives but to consent. Consider family cap laws in the Temporary Assistance for Needy Families (TANF) program, a leading federal-state welfare program.
Family caps, which at least nineteen states currently impose in some form, deny or limit TANF benefits to children conceived while their parents are already receiving TANF. For example, New Jersey’s TANF program provides that a family of two will ordinarily receive up to $322 a month, a family of three will ordinarily receive up to $424 a month, and a family of four will ordinarily receive up to $488 a month. These scant benefits are unlikely to cover a family’s basic needs, and New Jersey’s family cap limits them even further. New Jersey’s family cap means that a family that enters TANF with two people is still limited to just $322 a month if another child is born, $102 less than New Jersey itself otherwise thinks necessary for three people’s subsistence. A family that enters TANF with three people is still limited to just $424 a month if another child is born, $64 less than New Jersey otherwise thinks necessary for four people’s subsidence.
Family cap laws help illustrate how rights to freedom from state intervention do not help parents secure the necessary resources to raise their children. The benefits the TANF program offers are extraordinarily low and even lower if poor parents act in ways the state disfavors by having additional children. Poor parents have rights, but not to welfare. And when impoverished parents seek welfare, states feel free to impose extraordinary pressure on parents’ most personal decisions. In practice, rights talk often provides little protection for the most vulnerable.