A Constitutional Right to Welfare?

Judging from a bizarre Washington Post story today on the closing of a government-subsidized day-laborer center, a constitutional right to welfare must just have been invented by a judge.

The Post reports on page A1 that, “the Town of Herndon announced yesterday that it would close its 21-month old day-laborer center next week instead of complying with a judge’s ruling that the site must be open to all residents, including those who might be illegal immigrants.”  On page A10, the story on the closure of the day-laborer center continues with the headline, “Herndon Refuses to Comply with Court,” suggesting that it violates the Constitution for Herndon to stop subsidizing its day-laborer center.

The story discusses a recent court ruling, which struck down Herndon’s anti-solicitation ordinance on the grounds that its ban on solicitation on public streets was too broad to comply with the First Amendment, and that the day-laborer center did not provide a sufficient alternative venue for day laborers to solicit employment.  The ruling cited free speech and equal protection provisions of the Constitution, invoking day laborers’ right to speak with potential employers and not be discriminated against based on citizenship.

But the fact that a town’s ban on solicitation arguably may violate the First Amendment — and be struck down — hardly means that the town must affirmatively subsidize a day-laborer center.  As the Supreme Court has made clear many times, the First Amendment merely limits government regulation of speech, and it does not require that speech be subsidized by the government.  It does not require taxpayers to subsidize any form or venue for expression, be it newspapers, the printing of handbills, or day-laborer centers.  As the Supreme Court emphasized in its DeShaney decision, the government has no affirmative obligations toward the public under the Constitution, even to protect them from harm at the hands of third parties.

Similarly, equal protection does not require that the government give anybody a handout, such as a government-subsidized day-laborer center.  If no one is receiving a handout or a subsidy, then everyone is being treated equally.  As the Supreme Court observed in Heckler v. Mathews, the government can avoid an equal protection lawsuit simply by terminating all benefits to everyone from any group, rather than extending them to groups previously denied the benefit.

If the judge indeed suggested that Herndon must continue operating its government-subsidized day laborer center — rather than just not enforce its broad ban on solicitation — then the judge was quite wrong in how she interpreted the Constitution. And if the judge did not suggest that, then the Post was quite wrong to suggest that the law requires that, and its legal reporting was inaccurate.