Document Type


Publication Date

Summer 2003


In Copyright


In the face of rising economic inequality and shrinking welfare protections, some scholars recently have revived interest in T.H. Marshall's theory of "social citizenship." That theory places economic rights alongside political and civil rights as fundamental to public well-being. But this social citizenship ideal stands against the prevailing neoliberal ("free market") ideology, which asserts that state abstention from economic protection generates societal well-being. Using the examples of AFDC and workers' compensation in the 1990s, I analyze how arguments about economic efficiency have worked to characterize social welfare programs as producers of public vice rather than public virtue. A close examination shows that the conventional economic analysis of welfare programs depends on and reinvigorates longstanding ideologies of race, class, and gender hierarchy. From Lochner to twenty-first century neoliberalism, opponents of a welfare state have aimed not simply to defend impartial market forces against government distortion, but rather to enlist the state in constructing a particular substantive version of the market in which the partisan interests of an elite appear as natural and necessary to the public interest.

I analyze how two leading strands of contemporary social citizenship theory, pro-welfare liberalism and communitarianism, both fail to sufficiently challenge neoliberalism's revival of the Lochner-era myth of a natural, and naturally beneficial, "free market." In the conventional arguments defending welfare programs, "redistribution" is a beneficial social supplement to the economic goals of the market. For pro-welfare liberals, redistribution promotes the moral value of individual freedom in the face of the market's push toward aggregate gain; for pro-welfare communitarians, redistribution promotes the moral value of societal responsibility in the face of the market's push toward individual self-interest.

In contrast, I argue that a robust theory of social citizenship requires deconstructing the very division between efficiency and redistribution that grounds the dominant economic ideology. The conventional arguments for "balancing" market forces with social equity end up caught in a double bind: the egalitarian morality that is supposed to ease the harsh effects of the efficient market (either on individuals or communities) always threatens to exacerbate those effects, according to dominant neoliberal economics. If the goal of social welfare is to protect market losers, without challenging market winners, then either the market protection or the market losers must be harshly and continually restrained.

As an alternative, I analyze examples of critical legal scholarship that suggest how social citizenship theory might avoid this double bind. These approaches characterize rights to protection from existing markets not as tradeoffs of economics for equity, but as a means of dislodging the race, gender, and class ideologies embedded in the current political economy.

Publication Title

Indiana Law Journal

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