Thursday, July 24, 2008

Could state filial responsibility laws be challenged as unconstitutional?

A friend who has read this blog has raised the question about the constitutionality state filial responsibility laws. If a state tried to enforce them in a non-lookback situation (that is, as a “poor law”), an adult child could sue and try to claim that it is unconstitutional. The arguments here refer to the US constitution and Bill of Rights, but possibly there could be other issues with regard to constitutions of each state.

One argument might be the denial of a 14th Amendment due process right, or a 5th Amendment right to avoid forceable “takings” clause (“nor shall private property be taken for public use without just compensation”). Presumably these rights would be incorporated and apply to the states (all the more so in an interstate case). Here, the “public” purpose seems to be the funding of state Medicaid and welfare programs (and perhaps the federal participation component in some cases, especially the reimbursement rules for nursing homes).

Nevertheless, we can think easily of other situations where life itself has been taken for a public purpose: the military draft of the past. The Supreme Court at one point actually upheld the male-only draft. There has been loose talk of reinstating it during the war in Iraq, if that happened, it’s easy to imagine someone could challenge it under these grounds. It doesn’t sound likely that the current Supreme Court would overturn it, but a future one might.

All of this gets back into the area of “public morality,” a concept whereby the state, through democratic processes, is allowed to force individuals to share the risk of some common responsibilities, in some sort of system believed to make the exposures fairer, particularly given unequal “starting places” for people. This concept contradicts the whole idea of libertarianism, and seems counter to more modern ideas of “classical liberalism” with greater emphasis on the sovereignty of the individual. Courts used to accept this concept, but more recently have turned away from it somewhat. Maybe arguments like this for a constitutional challenge would work today if states tried to move to enforce these laws.


Anonymous said...

This is horrible, takes personal responsibility out of the equation (what if your parents are financially irresponsible?).

Bill Boushka said...

Thanks! Yet this whole issue is a ticking time bomb, as people live longer and have fewer kids. A lot of details are covered here in July 2007. Family responsibility goes way beyond following up on a choice to have or not have children. It's an existential social justice question that the public and media mssies.

Bill Boushka said...

oops! "misses".