How did it come about that people have a “right” to certain benefits from the state -- or “entitlement,” in the loaded language of our day? A fascinating new paper by legal scholar Karen N. Tani argues that the idea of “welfare rights” first became commonplace not amongst activists in the 1960s, but with a group of mid-level Roosevelt administration officials who in the late 1930s were trying to get an ambitious new state-federal assortment of anti-poverty programs off the ground.

Their larger intention, Tani argues, was not just to replace the old, meager, stigmatizing system of state and local poor relief -- “one area of governance that remained tied to the local level” -- with an efficient, modern, equitable system that could help end poverty, but to actually turn the United States into a modern state. Like the Constitutional Convention, the Civil War, and the Second World War a few years later, federally-run “welfare” -- to use another loaded term from a later time -- was part of the long process of forging a unified America by inducing its citizens to identify more with Washington than with state and local governments. It was the American version of Bismarck’s German unification policy, which fifty years earlier had included establishing old-age and other pioneering social insurance programs.

Tani’s article, “Welfare and Rights Before the Movement: Rights as a Language of the State,” which appeared in the Yale Law Journal in November, doesn’t mention the Iron Chancellor by name. But it raises the question whether, for example, a state-building impulse might have been a common denominator of many countries’ decisions to follow Germany’s lead in creating an expansive state-run complex of social programs in the first half of the twentieth century. And it raises some intriguing and perhaps uncomfortable questions, both for the New Deal's political heirs and for their conservative opponents.

This provocative story starts with the Social Security Act of 1935, the founding document of the American welfare state. Besides setting up the program -- still embryonic -- that we now know as Social Security, the Act established a host of other benefits and services that had much more impact at the time: Unemployment Insurance (Title III), Aid to Dependent Children (Title IV -- the program that came to be known as “welfare” and that would be “reformed” out of existence in 1996), and Old Age Assistance (Title I). Since Social Security was still accumulating assets through payroll taxes and wouldn’t issue its first benefit checks for several years, Old Age Assistance (OAS) was the primary vehicle for the federal government to help the aged -- the population perhaps hardest hit by the Great Depression.

OAS was the product of a political compromise. It was funded partly by the federal government and partly by the states, which could still set many of the rules and which administered them through a crazy quilt of state and local agencies. The Social Security Board, which ran all of these programs, couldn’t exactly tell its collaborators, many of whom were hostile to the New Deal, what to do. (Tani's paper is full of marvelously revealing, sometimes appalling anecdotes about the resulting culture clashes.) But they could “educate local caseworkers indirectly, by channeling messages and materials through appropriate mediators, such as state agencies and schools of social work,” Tani writes.

They did this in four ways: by issuing statements interpreting and clarifying legal provisions; training welfare workers; funneling students from social work schools into the relevant agencies; and giving speeches at meetings attended by higher ranking state and county personnel. “Often,” says Tani, “they stressed rights.”

Public assistance, in these various communications, was portrayed as the right of those who were eligible: the government was obligated to give it to those who met the statutory requirements, and no one could restrict or otherwise interfere with the claimant’s payments. All those who sought payment, even those who were not eligible, were also rights-holders: they had the rights to apply, to receive prompt consideration of their application, and to seek an appeal should they be dissatisfied.... This language of rights appeared nowhere in the Social Security Act itself, yet it pervaded the guidance that federal officials directed at untrained local administrators.

Where did this “language of rights” come from? Many mid-level and local officials, however, came to the agency from backgrounds in social work or Catholic Charities. Jane Hoey, who headed the board’s Bureau of Public Assistance, had learned from the influential Catholic social thinker John A. Ryan, had campaigned for wage and working-hours legislation and unemployment insurance, and once declared that “man” had a “right” to the essentials of existence “which arise(s) out of his intrinsic nature” and government’s “obligation to see that essential human needs are met and that the rights of the individual are protected.”

There is a direct connection, Tani argues, between the views of officials like Hoey, which they weren’t shy about propagating, and those of welfare rights activists who in the 1960s began fighting restrictive state-level eligibility rules in the courts. And while top officials at the Social Security Board (later the Social Security Administration) took a different point of view, they generally didn’t fight people like Hoey, who after all were doing their best to make a complicated system work on the ground.

Something else was going on here as well, however. One relatively highly placed official who enthusiastically supported the use of “rights language” was the agency’s assistant general counsel, A. Delafield Smith. Starting in the late 1930s, Tani writes, Smith “was broadcasting to every audience he could find that a right to public assistance, and ancillary rights of fair and equal treatment, were inscribed in positive law.”

But Smith went much further. “A strong personal bond between the individual and the state,” he said, was “the tangible evidence of the achievement of national identity and power.” It was also an established “technique . . . [for] bringing about national dominance” over “tribal bonds.”

Read this today, and not doubting Smith’s good intentions -- a dedicated New Dealer, he supervised the public assistance programs for seventeen years -- his reasoning still leaves us feeling a bit queasy. “Tribal bonds” could refer to the insular, Jim Crow regimes that controlled the Southern states and habitually barred African Americans from relief programs. But what about African Americans themselves, or Native American nations, or the Filipinos, Puerto Ricans, and Saipanese living under U.S. colonial control? Was the quid pro quo for the new benefits they receiving, to surrender their distinct identities?

* * * * *

How well has this project -- the nation-building aspect of what’s known as Cold War liberalism -- worn in the three quarters of a century since the Social Security Act? In the decades since Vietnam and Watergate, Americans on both the right and left have become radically less inclined to identify with the state, more willing to question its actions, and quicker to ask what’s in it for them.

In the 1960s, the welfare rights movement turned the New Dealers’ use of the language of rights on its head, arguing that rights are something that must be demanded, not something bestowed by the authorities themselves. Often, the demands came from discrete communities that felt they had been marginalized yet were anxious to preserve their distinctiveness. They were not interested in the nation-building aspects of programs like Social Security and AFDC. The place to work for change within the state, paradoxically, was outside the state.

The problem is, if activists on the left reject the state-building element of social welfare, what do they have to offer the state in return for the benefits they receive? The dilemma for the left in the post-Reagan era is that it remains tied to the state as the medium of social progress, even as it’s lost much of its bargaining power in a state-centered political arena that has moved to the right.

Conservatives have an even more ambivalent relationship with the language of rights. Tani points out that the 1996 Personal Responsibility and Work Opportunity Reconciliation Act that “ended welfare as we know it” did so ”first by placing time limits on benefits, and second, by authorizing states to condition benefits on any number of behavioral requirements. Under the terms of the new law, welfare payments were an incentive, not a right; their termination was an unobjectionable form of discipline, not a rights violation.”

While President Obama didn’t make rights language central to his campaign for health care reform, when he was asked directly whether health care was “a privilege, a right, or a responsibility,” he responded that it should be a “right,” as Tani notes. But this was precisely the grounds on which Republicans attacked Obamacare. Said presidential candidate Rick Santorum: “Obamacare isn’t about a right to health care. It is about the government telling you what you have to do or, more precisely, what you must purchase.”

In a similar way to their opponents on the left, then, conservatives have found leverage in turning the language of rights on its head -- for example, by arguing that the new health care law forces infringes the “rights” of religious communities to abstain from rules they don’t believe in. This fits comfortably with the project of many conservatives and center-right Democrats: to redefine the economic mission of the modern state as being to create an “ownership society” or “market-state model”: encouraging and facilitating personal enterprise and supplying only the most limited and contingent social benefits.* The problem, which conservatives have yet to confront effectively, is how they propose to strip the state down to a national security obligation and a bulwark for the property rights of wealthy, without offering any social benefit to working people in return.

Progressives, who see themselves as heirs of the New Deal and Great Society, face an even more challenging problem of redefinition. Should they work to reclaim the project of enlightened nation-building -- minus the aggressive foreign policy, perhaps -- or further embrace the role of politicized outsider that solidified during the 1960s? And if this isn’t possible -- if the state has been permanently captured by the right and center-right -- then what about the future of that social mission itself? Should they attempt to recreate it and extend it, outside the state?

These are difficult questions, with which progressives in particular have often preferred not to grapple. But the history that Karen Tani has uncovered in her revelatory study makes the mixed objectives of the New Deal and the contradictions it carried with it, much clearer and more urgent.

*See, for instance, Philip Bobbitt's The Shield of Achilles: War, Peace, and the Course of History (New York: Alfred A. Knopf, 2002).