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Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of “New Property”

  • Karen M. Tani


Ephram (Fedya) Nestor, a Bulgarian-born immigrant to the United States, was “an unusual person,” according to his second wife Barbara. She met him in 1933 when he was selling vegetables from his car and remembers not really liking him. “He stayed too long,” he “talked too much,” and worst of all to this devoted radical, he “passionately espoused the cause of Communism [but] he didn't know too much about it.” Interviewed when she was ninety, sharp-witted Barbara Nestor still recalled how Fedya embarrassed her at a Marxist study group with his “foolish” statements and obvious lack of knowledge about Marx or communism. His family agreed he was “not much of a Communist” when he joined the local party in 1936 and could not be trusted with the simplest duties. Nonetheless, the federal government deported Fedya in 1956 for his brief Communist Party (CP) membership.



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1. Barbara Nestor, interview by Sherna Berger Gluck, December 27, 1974, interview 06c segment 6 segkey: a1602, “Women's History: Reformers and Radicals,” The Virtual Oral/Aural History Archive, California State University, Long Beach, Calif., (16 January 2006); Healey, Dorothy and Isserman, Maurice, Dorothy Healey Remembers: A Life in the American Communist Party (New York: Oxford University Press, 1990), 122.

2. Case file for Nestor v. Folsom, Civ. A. No. 1154–58, National Archives, College Park, Md.

3. Flemming v. Nestor, 363 U.S. 603 (1960)rev'g Nestor v. Folsom, 169 F. Supp. 922 (1959).

4. As John Attarian, a historian of Social Security, summarizes, there were “[n]o big headlines, front-page stories, reprints of the full text of the opinion, or editorials. The mass-circulation news magazines such as Time and Newsweek did not mention the case. The decision and its shattering, momentous implications went undiscussed in the mainstream press. It was not like the aftermath of Helvering v. Davis [the 1937 case establishing the constitutionality of the Social Security program].” Attarian, John, Social Security: False Consciousness and Crisis (New Brunswick, N.J.: Transaction Publishers, 2002), 221.I found minimal coverage in the New York Times and the Los Angeles Times but none in other major papers like the Wall Street Journal or the Chicago Defender. See“High Court Rejects Pension Plea by Man Deported as Former Red,” New York Times, June 21, 1960;“Supreme Court Actions,” New York Times, June 21, 1960;“Competition in Pacific Shipping OKd by Court,” Los Angeles Times, June 21, 1960.

5. Recent debates over the privatization of Social Security suggest that the program is still misunderstood. See, e.g.,Murdock, Deroy, “It's Not Your Money,” American Enterprise 10 (1999): 76;Rounds, Charles E. Jr, “You Have No Legal Right to Social Security,” Consumers' Research Magazine 80 (2000): 4;Samuelsen, Robert, “Lots of Gain and No Pain!Newsweek 145 (2005): 41(discussing the pervasive belief that Social Security is an entitlement; citing Nestor as the myth-busting decision “you've never heard of”).

6. President Franklin Delano Roosevelt famously claimed that this rhetoric would guarantee contributors “a legal, moral, and political right to collect their pensions.” Quoted inLeuchtenburg, William E., Franklin D. Roosevelt and the New Deal (New York: Harper & Row, 1963), 133.

7. Nestor became an important precedent for the Social Security Administration (SSA), which today maintains the full text of the decision on its website. Social Security Administration, “Supreme Court Case: Flemming v. Nestor,” html (25 April 2006). Nestor is also a case that conservative judges cite whenever a person challenges a restricted or terminated social welfare benefit. For example in Weinberger v. Salfi, where Concetta Salfi challenged a provision of the Social Security Act that prohibited her from receiving widow's benefits because she had not been married to her wage-earner husband long enough, Justice Rehnquist used Nestor as “the standard for testing the validity of Congress' Social Security classification.” To him this meant that a restriction passed muster unless it“manifests a patently arbitrary classification, utterly lacking in rational justification.” 422 U.S. 749, 768 (1975). See alsoRichardson v. Belcher, 404 U.S. 78 (1971) (upholding a HEW decision to reduce Social Security benefits to beneficiaries also receiving state workmen's compensation).

8. It has, however, been called into question by subsequent Supreme Court characterizations of other government benefits. As attorney Matthew Hawes writes, “Logic dictates that any property interests recognized by the Court for welfare recipients should be more ephemeral than those ‘bought’ through contribution as in Social Security. Yet, just ten years after refusing to recognize any protectable rights for Social Security recipients, the Supreme Court first found constitutional protections for welfare beneficiaries in Goldberg v. Kelly.” Hawes calls Nestor “outdated case law.” Matthew H. Hawes, “So No Damn Politician Can Ever Scrap It: The Constitutional Protection of Social Security Benefits,” University of Pittsburgh Law Review 65 (Summer 2004): 898,907; Goldberg v. Kelly, 397 U.S. 254 (1969).See alsoMathews v. Eldridge, 424 U.S. 319, 333 (1976)(holding that continued receipt of Social Security disability benefits is a “statutorily created ‘property’ interest protected by the Fifth Amendment”).

9. For an excellent review of the literature on law and the American state and a discussion of how scholars could examine law and courts more fruitfully, seeSkrentny, John D., “Law and the American State,” Annual Review of Sociology 32 (2006);see alsoSchiller, Reuel, “‘Saint George and the Dragon’: Courts and the Development of the Administrative State in Twentieth-Century America,” Journal of Policy History 17 (2005): 114–17(noting that most of the literature on the American welfare state “ignores courts and the role the judiciary has played” and describing some of the ways that courts may have affected social welfare bureaucracies in the 1970s).

10. As Risa Goluboff has illustrated in the civil rights context, the 1940s and 1950s were not “a relatively uneventful interlude” between the New Deal and the drama of “the Sixties” but “a signal period of ferment, in which the boundaries of the bureaucratic state, the form of individual rights, and the relationships between them were still unclear.” Goluboff, Risa L., The Lost Promise of Civil Rights (Cambridge, Mass.: Harvard University Press, 2007), 5.

11. Historians have long recognized “McCarthyism” as a problematic term. To borrow the words of M. J. Heale, “[Joseph R. McCarthy] did not inspire the anticommunist cause, to which he came very late. He contributed no new ideas, fashioned no legislation, commanded no coherent organization; he only briefly chaired a Senate committee, and that a minor one, and his tactics did lasting harm to his own mission.” Heale, M. J., American Anticommunism: Combating the Enemy Within,1830–1970 (Baltimore: Johns Hopkins University Press, 1990), 150.The term “McCarthyism” is also “invariably pejorative,” suggesting at best “an unfortunate overreaction to a genuine danger” and at worst “a conscious campaign to wipe out dissent.” Schrecker, Ellen, Many Are the Crimes: McCarthyism in America (Boston: Little, Brown, 1998), xii.Furthermore, “McCarthyism” denotes an aberrant period rather than one grounded in beliefs many Americans share today: that some ideologies are simply outside the sphere of “politics,” that the nation's protections do not extend to its enemies, and that civil liberties must yield in times of war. Yet there are also good reasons for accepting the term. Heale notes that “before the eyes of the country and indeed of the world it was McCarthy who became the personification of American anticommunism, and for a time press and politicians, bureaucrats and businessmen, Congress and White House treated him as a power in the land.” Heale, , American Anticommunism, 150.Historians have also adopted the term as their own, using it to refer to the efforts of “a broad coalition of politicians, bureaucrats, and other anticommunist activists” during the late 1940s and 1950s to “eliminate the alleged threat of domestic Communism” by “hound[ing]” a generation of radicals, their associates, and their institutions.Schrecker, , Many Are the Crimes, xii. I use the term in this broader context and with a wariness of the crusade-like imagery it invokes.

12. See, e.g., Blackman v. Chicago Housing Authority, 122 N.E.2d 522 (III. 1954)(eviction of tenants who would not sign loyalty oaths); Ault v. Unemployment Compensation Board of Review, 157 A.2d 375 (Pa. 1960)(denial of unemployment compensation for failing to answer questions about CP affiliation); Barsky v. Board of Regents, 347 U.S. 442 (1954)(suspension of a surgeon's medical license after he was convicted of contempt of Congress); Homer v. Richmond, 292 F.2d 719 (D.C. Cir. 1961)(denial of a radiotelegraph operator's license to an applicant who refused to answer questions about membership in subversive organizations); Garner v. Board of Public Works, 341 U.S. 716 (1951)(termination and withholding of salaries from employees who failed to comply with municipal loyalty and security procedures); Lerner v. Casey, 357 U.S. 468 (1958)(dismissal of a transit worker for being of “doubtful trust” and refusing to answer questions about CP membership); Faxon v. School Committee of Boston, 120 N.E.2d 772 (Mass. 1954)(firing of a public school teacher for declining to answer questions about communist activities before a subcommittee of the U.S. Senate).

13. For a discussion of the connection between Cold War political persecution and the administrative state, see Daniel Levin, “The Communist Party Cases and the Origins of the Due Process Revolution” (paper presented at the annual meeting of the Southwestern Political Science Association, New Orleans, La., March 26–29, 1997).

14. Reich, Charles A., “The New Property,” Yale Law Journal 73 (1964): 733–87,768. The article had dramatic implications: it suggested that economic rights—for even the nation's least “deserving”—should be on par with the freedoms in the Bill of Rights. But “The New Property” was not a radical text. Although Reich associated with various “leftwing” individuals and causes throughout his career, he wrote “The New Property” when he was part of a cohort at Yale Law School that was “relentlessly ambitious,” “politically timid,” and averse to activism.Kalman, Laura, Yale Law School and the Sixties: Revolt and Reverberations (Chapel Hill: University of North Carolina Press, 2005), 50.As Reich himself describes the article, “I sought to restore the original meaning and function of property as a safeguard of democracy; in this sense ‘The New Property' is profoundly conservative in the true sense of the word.” Charles Reich, e-mail message to author, October 19, 2006.

15. In the most significant case, Goldberg v. Kelly, Justice Brennan's majority opinion adopted “The New Property” as its analytical framework and held that entitlements to welfare benefits merited the same procedural protections as rights to traditional forms of property. 397 U.S. 254 (1970). Other decisions suggesting a “new property” jurisprudence includeKing v. Smith, 392 U.S. 309 (1968)(striking down an Alabama welfare regulation disqualifying otherwise eligible children from receiving aid if their mother “cohabits with a man”) andShapiro v. Thompson, 394 U.S. 618 (1969) (overturning a state law denying welfare assistance to persons who have not resided within the state for one year).

16. Nestor, interview, October 11, 1974, interview 01a segment 5 segkey: a1485; Healey, and Isserman, , Dorothy Healey Remembers, 1724.

17. According to her grandson Richard Healey, Barbara “never went out of the house without some kind of little shopping bag, something to carry literature, because you never knew who you were going to bump into, you never knew when you were going to make a convert.” Healey, and Isserman, , Dorothy Healey Remembers, 122.

18. Barbara took care to educate her children about the great battles between labor and capital, and she frequently took them to demonstrations and meetings of leftist organizations. Barbara remembered Dorothy yelling at scabs during a labor strike at age six and distributing radical literature throughout her childhood. Nestor, interview, October 11, 1974, interview 01b segment 5 segkey: a1493; Nestor, interview, December 20, 1974, interview 05a segment 5 segkey: a1566.

19. Dorothy remembered Fedya as “a sweet, amiable man, without much sense.” Barbara described him as a self-declared poet, an amateur inventor, and “a crackpot in many ways.” Healey, and Isserman, , Dorothy Healey Remembers, 122;Nestor, interview, December 27, 1974, interview 06c segment 6 segkey: a1602.

20. According to Barbara, “Nestor” was the name of Fedya's doctor friend; Fedya appropriated it after using the friend's passport to enter the U.S. Nestor, interview, December 27, 1974, interview 06c segment 6 segkey: a1602.

21. Nestor, interview, December 27, 1974, interview 06c segment 7 segkey: a1603.

22. Barbara said Fedya used to make her go to the theater where they showed all the Soviet films (prompting her to declare “Look, I'm not going to go see Swan Lake again!”), but he never made political speeches and “wasn't that important” in the local party. Nestor, interview, June 11, 1975, interview 10b segment 6 segkey: a1680.

23. Once when Fedya was distributing the publication he told an unemployed black female acquaintance that he knew of a maid job for her, a remark she interpreted as chauvinistic and racist. Party officials planned to sanction Fedya but stopped when Dorothy, then a high-ranking Party figure, told them not to pursue the “fool.” Nestor, interview, December 27, 1974, interview 06c segment 7.

24. Nestor, interview, December 27, 1974, interview 06c segment 6 segkey: a1603.

25. Nestor, interview, October 11, 1974, interview 01b segment 2 segkey: a1490.

26. “Who is Marx to tell me that I had to be a wage slave until you had a developed economy?” Barbara remembered Fedya demanding. “Who is Marx to tell the peasants in Germany that they couldn't win because they didn't have a developed economy?” When Dorothy finally asked, “Fedya, what did you ever read of Marx?” he admitted “not very much.” Nestor, interview, December 27, 1974, interview 06c segment 6 segkey: a1602. Barbara also insisted that Fedya was not “independent in his thinking” about the Party, instead following her and her daughter. “He wouldn't read things himself unless [Dorothy] told him to.” Nestor, interview, December 27, 1974, interview 06d segment 4 segkey: a1608.

27. Healey, and Isserman, , Dorothy Healey Remembers, 122.On these two strains of leftist thought, seeBuhle, Paul, Marxism in the United States: Remapping the History of the American Left (London: Verso, 1987).

28. “Communism in L.A.—How It Works,” Los Angeles Mirror, August 21, 1950,quoted inHealey, and Isserman, , Dorothy Healey Remembers, 133.

29. Agents reported on her as early as 1945, and from 1946 until at least December, 1949, the FBI continuously tapped her phone. Dorothy recalled that “[b]y 1951 the FBI was following my every move” and that every day she woke up to find “three carloads of FBI men” sitting in front of her house, which followed her as she drove her son to school and ran her errands. Government inquisitors at both the state and federal level also demanded her testimony.Healey, and Isserman, , Dorothy Healey Remembers, 114–18;“Contempt Laid to Five in U.S. Red Inquiry,” Los Angeles Times, June 15, 1949.

30. 354 U.S. 298 (1957) (holding that the statute of limitations barred the Smith Act convictions of Healey and others; convictions for conspiring to advocate the violent overthrow of the government could stand, but only where it was clear that evidence supported the advocacy charge apart from the organizing charge). Yates, which left the Smith Act a “helpless cripple,” was the most important of the major cases that the Court decided on the last day of the 1956–57 term, a day known as “Red Monday” for the Court's refusal to sustain prosecutions of communists. Belknap, Michal R., Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties (Westport, Conn.: Greenwood Press, 1977), 268;Horwitz, Morton J., The Warren Court and the Pursuit of Justice (New York: Hill and Wang, 1998), 59.

31. “They would never have deported him except they were getting back at Dorothy,” Barbara stated. Nestor, interview, December 27, 1974, interview 06d segment 3 segkey: a1606. This observation highlights the role of gender in Cold War political culture and practice, as well as how federal officials may have used the gendered nature of the welfare state for their punitive purposes. As Linda Gordon and others have discussed, the American welfare state developed in a fundamentally gendered way, privileging traditionally male occupations and rewarding male heads of families.Gordon, , Pitied But Not Entitled: Single Mothers and the History of Welfare, 1890–1935 (New York: Freedom Press, 1994).By deporting Fedya, the family member with the most honorable and legitimate claims on the American welfare state, federal officials covertly punished Barbara and Dorothy. On women's growing reliance on Social Security in theWar, Cold era, see “Millions of Elderly Women Depend on Social Security Benefits,” America's Women: Report of the President's Commission on the Status of Women, 1963 (Washington, D.C.: U.S. Government Printing Office, 1963), p. 13,reprinted online inSklar, Kathryn and Dublin, Thomas, eds., Women and Social Movements in the United States, 1600–2000, vol. 9 (2005), html (22 January 2007).

32. Immigration and Nationality Act, 8 U.S.C. 1251 § 241(a)(6)(i).

33. In re: Daniel Nestor or Ephraim or Prodan Nestoroff, File E-069450—Los Angeles, November 9, 1954, Case file for Nestor v. Folsom, National Archives, College Park, Md. As Fedya's attorney would soon find out (he was appealing an almost identical case on behalf of a Mexican American worker named Jose Angel Ocon), neither the deportation law nor its application raised concerns for the Court of Appeals. Ocon v. Del Guercio, 237 F.2d 177 (9th Cir. 1956).

34. Total wages of $10,936.95 between 1936 and 1955 entitled Fedya Nestor to $55.60 and his wife to $27.80. Department of Health, Education, and Welfare, Determination of Award, March 7, 1956, Case file for Nestor v. Folsom, National Archives, College Park, Md. This surprised Barbara because Fedya “never supported [her]” and “never earned very much.” She claims he contributed five dollars a week to the family income when he was working. Nestor, interview, December 27, 1974, interview 06d segment 2 segkey: a1605.

35. Notice of Deportation for Daniel Nestor, alias Ephraim Nestor, Prodan Nesteroff, Case file for Nestor v. Folsom, National Archives, College Park, Md.; Nestor, interview, October 11, 1974, interview 01b segment 8 segkey: a1496 (the reference is to Khrushchev's famous “secret speech” from the twentieth Congress in which he denounced Stalin and, in the eyes of many observers, further discredited the CP).

36. According to Barbara, Fedya considered it a “feather in his cap” that the government would pay for his $600 trip to Bulgaria and “[h]e was really very anxious to see what was going on in Bulgaria now under socialist rule.” Dorothy recalled that Fedya wanted to market his “perpetual motion machine” to the Bulgarian government. Barbara also insisted that Fedya's deportation was his fault: the socialist regime in Bulgaria normally would not accept deportees, but Fedya surreptitiously got a friend in the Bulgarian government to grant him the visa he needed. Nestor, interview, June 11, 1975, interview 10b segment 6 segkey: a1680; Healey, and Isserman, , Dorothy Healey Remembers, 122.

37. George R. Krets to Barbara Nestor, November 15, 1956, Case file for Nestor v. Folsom, National Archives, College Park, Md.; Social Security Act of 1954, 68 Stat. 1084 § 202(n), as amended 42 U.S.C.A. § 402(n).

38. See, e.g., Berkowitz, Edward D., America's Welfare State: From Roosevelt to Reagan (Baltimore: The Johns Hopkins University Press, 1991);Beland, Daniel, Social Security: History and Politics from the New Deal to the Privatization Debate (Lawrence: University Press of Kansas, 2005).

39. 42 U.S.C.A. § 402(n).

40. Hiss's guilt of espionage was never proven in court, but recent research in archives from the former Soviet Union suggests that he was a Soviet spy. SeeParrish, Michael E., “Soviet Espionage and the Cold War,” Diplomatic History 25 (Winter 2001): 114(reviewing eight recent works on Soviet espionage and American communism during the Cold War and concluding that Alger Hiss was a Soviet agent from the mid-1930s until at least 1945); White, G. Edward, Alger Hiss's Looking-Glass Wars: The Covert Life of a Soviet Spy (Oxford: Oxford University Press, 2004)(starting from the premise of Hiss's guilt).

41. The legislator who introduced Section 402(n) was Katharine St. George, a Republican congresswoman from New York. That same year St. George sponsored bills revoking the mailing privileges of senders of subversive propaganda, rescinding Hiss's government pension, and denying pension benefits to all government employees convicted of a felony. Social Security Act of 1954, 83rd Cong., 2nd sess., Congressional Record 100 (January 25, 1954), quoted in Nestor v. Folsom, 169 F. Supp. 922, 927 (D.C. Cir. 1959); “Bill Would Deny Mail Aid to Reds,” New York Times, May 8, 1954;“Administration for Hiss Pension; House Sponsors of Ban ‘Enraged,’” New York Times, June 23, 1954.

42. Case file for Nestor v. Folsom, National Archives, College Park, Md.

43. Barbara requested a hearing with HEW on Fedya's behalf on February 26, 1957. A HEW referee heard the case in Glendale, Califonia, on December 30, 1957, and Fedya lost. HEW denied Barbara's request for a review of the decision. Case file for Nestor v. Folsom, National Archives, College Park, Md.

44. Cardozo, Benjamin N., The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 35.

45. Nestor, interview, June 11, 1975, interview 10c segment 1 segkey: a1681.

46. The two lawyers once worked for the government but they left in 1946—just in time, they said. They believed that the Cold War brought a “wave” of government repression “such as this country has never seen before.” Intending to become “prosperous corporation lawyers” they instead became, as they liked to joke, “unprosperous civil liberties lawyers.” Folder 14, Series II, The Forer and Rein Research Collection, 1941–2000, Historical Society of Washington, D.C.

47. According to Schrecker, the FBI eagerly provided information to the ABA and local bar associations about left-wing lawyers' groups and lawyers to facilitate internal anticommunist purges. Meanwhile, any attorney who relied on the Fifth Amendment risked disbarment for poor “moral character.” Not all members of the bar joined in anticommunist persecution, but “[t]he bar's timidity made it almost impossible for Communists and alleged Communists to obtain counsel—especially if they did not want to be represented by someone who was already tainted [by having defended a communist].” Schrecker, , Many Are the Crimes, 301–5;Belknap, , Cold War Political Justice, 219–31.Bar associations at all levels also imposed loyalty oaths and refused admission to applicants with the slightest leftist leanings. See, e.g.,Schware v. Board of Examiners, 353 U.S. 232 (1957)(reviewing a 1954 decision by the New Mexico State Board of Bar Examiners to deny Rudolph Schware's application to take the bar exam because of his past CP membership, prior arrest record, and use of aliases); Konigsberg v. State Bar, 353 U.S. 252 (1957)(reviewing the California State Bar's refusal to grant certification to Raphael Konigsberg for his refusal to answer questions about his political associations). In 1950 the ABA House of Delegates adopted a resolution urging that all attorneys be required to file affidavits declaring whether they were or had been members of the CP. In 1951 the House of Delegates voted unanimously to urge lawyers' groups to expel all communists and advocates of Marxism-Leninism from legal practice. In 1953 the same body called for lawyers' groups to examine any attorneys who invoked the Fifth Amendment for “fitness to continue to practice.” Belknap, , Cold War Political Justice, 220.As late as 1957 the ABA took a strong anticommunist stance. For example after the Yates decision (eviscerating the Smith Act), the House of Delegates favored a legislative reversal of the Court. Ibid., 254.

48. “Between them, and sometimes with other lawyers, they handled every important McCarran Act case as the government tried to deny passports, make the Communist party register, and so on.” Riley, David, “The Antiestablishment Lawyers,” The Washingtonian 6.2 (November 1970): 54.

49. The partners took on other cases in their individual capacities. Joseph Forer represented Herbert Aptheker and other alleged subversives in their effort to overturn the part of the Subversive Activities Control Act that made it a felony for a member of a communist organization to apply for or use a passport (the Supreme Court agreed).Aptheker v. Secretary of State, 378 U.S. 500 (1964).Forer also represented the defendant inWatts v. United States, 394 U.S. 705 (1969) (seeking to overturn Watts's conviction for threatening the life of the president after the anti-war protester declared, “if they ever make me carry a rifle the first man I want in my sights is LBJ”). David Rein represented one of the resident aliens who challenged the Alien Registration Act of 1940 in the famous immigration caseHarisiades v. Shaugnessy, 342 U.S. 580 (1952)(holding that the government could validly deport nonresident aliens for past membership in the Communist Party). Later Rein represented the W. E. B. DuBois Club of America in its effort to declare communist-front registration provisions of the Internal Security Act unconstitutional.W. E. B. DuBois Clubs of America v. Clark, 389 U.S. 309 (1968).By 1970, each partner had argued about twenty cases in the Supreme Court.Riley, , “The Antiestablishment Lawyers,” 54.

50. 380 U.S. 503 (1965) (vacating an appellate court judgment that the American Committee for Protection of Foreign Born register as a communist front under the Subversive Activities Control Act of 1950).

51. 355 U.S. 115 (1957) (holding that an alien's one-year membership in the CP and his work in a communist book store were too insubstantial to support an order of deportation).

52. 352 U.S. 985 (1957) (holding that a defendant convicted of filing a false Taft-Harley affidavit—false because it denied that he supported the CP—was entitled to a declaration of a mistrial because the jury had intruded into his privacy).

53. 346 U.S. 100 (1953) (holding that the District of Columbia could prosecute Thompson Company for refusing to serve African Americans under a nineteenth-century Act that criminalized race-based discrimination).

54. Folder 14, Series II, The Forer and Rein Research Collection, 1941–2000, Historical Society of Washington, D.C. In an interview with historian Ellen Schrecker, Joseph Forer claimed that taking on Eisler as a client “immediately” cost him and his partner “half of our business.” Schrecker, , Many Are the Crimes, 304.

55. Schrecker, , Many Are the Crimes, 122–25.

56. Memorandum in Support of Plaintiff's Motion for Summary Judgment, Nestor v. Folsom, 169 F. Supp. 922 (D.C. Cir. 1958) (Civil Action No. 1154–58); Brief forAppellee, , Flemming v. Nestor, 363 U.S. 603 (1959) (No. 54).

57. Tamm joined the FBI in 1930; four years later he became assistant director. From 1940 to 1948 he worked as Hoover's personal assistant.Judge Edward Tamm, Ex-F.B.I. Official, 79,” New York Times, September 24, 1985.

58. Truman Names 11 Rebuffed by GOP,” New York Times, June 23, 1948;Editorial, “Balanced Accounts,New York Times, September 27, 1985.

59. Quoted inCharns, Alexander, Cloak and Gavel: FBI Wiretaps, Bugs, Informers, and the Supreme Court (Urbana: University of IIIinois Press, 1992), 124,136 n 24. Charns also implicates Tamm in Hoover's early efforts to spy on the judiciary. Ibid., 17–31. On the other hand, some evidence suggests that Tamm's allegiance to Hoover had waned by the time Tamm reached the court. According to H. Graham Morison, who dealt with both men in his capacity as executive assistant to the attorney general, Hoover was ready to give Tamm the “axe” in 1948 for insubordination. H. Graham Morison, interviewed by Jerry N. Hess, August 1, 1972, Harry S. Truman Library, Independence, Missouri, http://www. (10 January 2007).

60. Nestor v. Folsom, 169 F. Supp. 922, 934 (D.C. Cir. 1959).

61. See, e.g., Helvering v. Davis, 301 U.S. 672 (1937)(giving Congress wide latitude in decisions about how to spend for the general welfare); Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240, 307–8 (1935)(“Contracts, however express, cannot fetter the constitutional authority of the Congress. Contracts may create rights of property, but, when contracts deal with a subject-matter which lies within the control of the Congress, they have a congenital infirmity”); Mullowney v. Folsom, 156 F. Supp. 34, 36 (D.C.N.Y 1957)(holding, in a case where a claimant's Social Security payments were adversely affected by legislation passed after he became entitled to benefits, that “Payments made as a result of Congressional appropriation have not been thus far construed as contractual in nature”). Tamm, however, was a judge who did not fear reversal when he felt strongly enough. “When one is convinced that his dissent is predicated upon lawful grounds then there's no hesitancy in continuing to dissent,” Tamm once told an interviewer, “and while the fact that a majority of the court may take the opposite side is sometimes frightening, it nevertheless is no reason for altering or changing one's position.” Edward Tamm, interview by Alice O'Donnell, November 12, 1983, Federal Judicial Center, Washington, D.C.

62. Nestor v. Folsom, 169 F. Supp. 922, 934 (D.C. Cir. 1959).

63. Ibid., 925 n 3 (citing a 1956 letter from the secretary of Health, Education, and Welfare to the Senate Finance Committee in which the secretary characterized the Social Security program as establishing “rights to benefits,” earned through work, that “the individual's actions do not modify or restrict” and that Congress was not entirely free to amend).

64. Ibid., 934. The due process clause of the Fifth Amendment provides that the federal government may not deprive any person of “life, liberty, or property, without due process of law.” The Fourteenth Amendment places the same restriction on state and local governments. U.S. Const. Amends. V, XIV.

65. Warren J. Samuels offers a useful definition of “property rights” in contemporary American legal thought: they are “interests given legal protection as property”; as such they enable their holders “to participate in economic decision making.” Samuels, Warren J., “An Introduction to Essays on the Fundamental Interrelationships between Government and Property,” in The Fundamental Interrelationships between Government and Property, ed. Mercuro, Nicholas and Samuels, Warren J. (Stamford, Conn.: JAI Press, 1999), 123, 3.

66. Richard Adelstein, “The Origins of Property and the Powers of Government,” inMercuro, and Samuels, , The Fundamental Interrelationships between Government and Property, 2535, 25.

67. As David Abraham puts it, “American law started from and remains strongly wedded to the right of property.” American national identity centers on the idea of liberty, but that liberty is “formal, negative, expressed in contract, and dependent on possession of property.” Whereas other countries may tie rights to principles like citizenship, Americans tie everything from speech to reproductive freedom to the notion of property. “The law, it seems, only listens to talk it can understand. More than anything, it understands property.” Abraham, David, “Liberty without Equality: The Property-Rights Connection in a ‘Negative Citizenship’ Regime,” Law and Social Inquiry 21 (1996): 164.

68. James Ely, for example, argues that from the colonial era to the present, property rights and other personal rights have been closely connected, even as their place in constitutional law has changed.Ely, James W. Jr, The Guardian of Every Other Right (New York: Oxford University Press, 1992).

69. U.S. Const. Amend. V. Beyond the due process clause and the “takings clause” of the Fifth Amendment, property finds protection in the First Amendment (protecting a person's use of property in her expressive activities), the Third Amendment (restricting the government's authority to quarter soldiers in private homes), the Fourth Amendment (barring unreasonable searches and seizures of a person's home, papers, and effects), the Eighth Amendment (prohibiting excessive fines), and the Fourteenth Amendment (supporting some egalitarian claims to the resources people need to survive). C. Edwin Baker, “Disaggregating the Concept of Property in Constitutional Law,” inMercuro, and Samuels, , The Fundamental Interrelationships between Government and Property, 4762, 49.

70. Abraham, , “Liberty without Equality,” 24 n 79.

71. “Case File: No. 54 Oct. term, 1959 Flemming v. Nestor,” Box 341, Papers of Hugo L. Black, Library of Congress, Washington, D.C.; “Folder No. 54—Flemming v. Nestor,” Box 1223, Papers of William O. Douglas, Library of Congress, Washington, D.C.; Howard Lesnick, conversation with author, January 6, 2007.

72. In 1960 Earl Warren was chief justice but most legal scholars argue that the “Warren Court” had not yet begun. (They cite the starting date as 1962, when the conservative Charles Whittaker retired and the most articulate proponent of judicial restraint, Felix Frankfurter, resigned, replaced by Byron White and Arthur Goldberg.) The main divide on the Court in 1960 was between those like Justice Harlan, who believed that the Court could rationalize Congress's actions for just about anything, thereby keeping laws in harmony with the Constitution, and people like Justice Black, who believed that devising benign, rational justifications for Congress's actions was wrong when Congress never had such justifications in mind.Tushnet, Mark, “The Warren Court as History: An Interpretation,” in The Warren Court in Historical and Political Perspective, ed. Tushnet, Mark (Charlottesville: University Press of Virginia, 1993), 136.

73. “For most of the brethren, it was simple fact that the Communist ‘menace’ had to be curtailed, and, during the first half of the 1950s, the Supreme Court majority of Vinson, Jackson, Frankfurter, Clark, Minton, Burton, and Reed managed to find for the governmental interest in subverting freedom of speech, press, and/or association.” Ball, Howard and Cooper, Phillip J., Of Power and Right: Hugo Black, William O. Douglas, and America's Constitutional Revolution (New York: Oxford University Press, 1992), 147.The most “notorious example” of the Court giving in to repressive anticommunism, according toHorwitz, Morton, was Dennis v. United States, 341 U.S. 494 (1951),in which the Court upheld eleven Smith Act convictions and eviscerated constitutional protections on free speech.Horwitz, , The Warren Court, 5759.Some decisions from this period are arguably better explained by certain justices' predisposition to judicial restraint in cases implicating national security, but the most important point is that between 1950 and 1956 the Court as a collective “gave free rein to executive, legislative, and popular determination to destroy the domestic arm of the international Communist movement” by “accepting a generic ‘proof’ of Communism's seditions nature” whereas after that period it was less willing.Wiececk, William M., “The Legal Foundations of Domestic Anticommunism: The Background of Dennis v. United States,” The Supreme Court Review (2001): 375434, 434.

74. Brennan's confirmation is further evidence that McCarthyism was waning. Senator McCarthy pursued Brennan with his usual tactics during Brennan's confirmation hearings, but only McCarthy himself voted against confirmation.

75. Usually the Court avoided deciding cases on constitutional grounds (perhaps because of backlash over Brown), but by 1956 it was frequently overturning persecutions of alleged subversives on technical or procedural grounds. See, e.g.,Schware, 353 U.S. 232 (1957)(holding that the New Mexico board of bar examiners denied Schware the right to practice law without due process when it found his past membership in the Communist Party and his use of aliases to raise “substantial doubts” about his moral character); Speiser v. Randall, 357 U.S. 513 (1958)(holding that California had used unconstitutional procedures to enforce a law making “nonadvocacy of overthrow of government by unlawful means” a condition precedent to a tax exemption); Vitarelli v. Seaton, 359 U.S. 535 (1959) (holding that the procedures that the secretary of the interior followed in dismissing a government employee fell short of the requirements of due process). For a discussion of “the avoidance canon” of the early Warren Court, seeFrickey, Philip P., “Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court,” California Law Review 93 (March 2005): 397464.

76. Horwitz notes that between 1959 and 1962 the Court “seemed to flee from its earlier anti-McCarthy initiatives,” but he rejects the idea that the Court acted out of fear of communist subversion or antipathy towards political radicals. Horwitz attributes the apparent retrenchment to the Jenner-Butler Bill, an anti-Court measure that Congress considered after the Court overrode Congressional committees and decrees on “Red Monday.” Horwitz, , The Warren Court, 6465.See alsoMurphy, Walter F., Congress and the Court (Chicago: The University of Chicago Press, 1962);Pritchett, C. Herman, Congress Versus the Supreme Court, 1957–1960 (Minneapolis: University of Minnesota Press, 1961).

77. Flemming v. Nestor, 363 U.S. 603, 60810 (1960) (emphasis added).

78. 360 U.S. 474, 492 (1959). See alsoSchware, 353 U.S. 232 (1957)(holding that the opportunity to qualify to practice law is protected by constitutional due process provisions); Peters v. Hobby, 349 U.S. 331, 352 (1955) (arguing that “the reputation of men and their right to work” must be safeguarded by rigorous procedures since these are “things more precious than property itself”) (Douglas, J., concurring).

79. Flemming v. Nestor, 363 U.S. 603, 60810 (1960).

80. Ibid. Justice Harlan devoted the rest of the decision to dismissing Nestor's Sixth Amendment claim (that deprivation of benefits punished people like Nestor in an unconstitutional manner). To strike down a Congressional enactment of this kind on Sixth Amendment grounds Nestor would need “unmistakable evidence of punitive intent,” Harlan explained, and this evidence simply did not exist. Ibid., 619.

81. Ibid., 626. Justices Douglas, Brennan, and Warren also dissented. Douglas focused on the idea that the 1954 law under which the government terminated Nestor's benefits was a classic bill of attainder, “a legislative act which inflicts punishment without judicial trial.” Ibid., 629 (Douglas, J., dissenting). Brennan's dissent, which Douglas and Warren joined, added that the 1954 Act violated the constitutional prohibition against ex post facto laws. Ibid., 634–40 (Brennan, J., dissenting).

82. Ball and Cooper, Of Power and Right.

83. President Franklin D. Roosevelt considered Black reliable enough to make him his first appointment to the Supreme Court in 1937, even though Black was not a White House insider.

84. “Senatorial File, Constituent Correspondence, Social Security 1936–1937,” Box 133, Papers of Hugo L. Black, Library of Congress, Washington, D.C.

85. “Senatorial File, Clipping File, Social Security,” Box 111, ibid.

86. Flemming v. Nestor, 363 U.S. 603, 623 (1960) (Black, J., dissenting).

87. Ibid. Essentially, he was making the same argument as Judge Tamm. This agreement between Black, a famous protector of civil liberties, and Tamm, a man who once helped Hoover wiretap unsuspecting citizens, suggests the complicated cross-currents generated by the nexus of the Cold War and the welfare state.

88. Lynch v. United States, 272 U.S. 571, 577 (1934).

89. Flemming v. Nestor, 363 U.S. 603, 622 (1960) (Black, J., dissenting).

90. Ibid., 624.

91. Though Justice Douglas did not join Black's dissent, he shared many of Black's concerns. Douglas characterized a person's accrued social benefits as “part of his property benefits.” He, too, cited Senator George's characterization of Social Security as “an earned right.” Ibid., 630–31 (Douglas, J., dissenting).

92. The entry in the New York Time's Supreme Court round-up was as follows: “Upheld, 5 to 4, the constitutionality of a Congressional statute depriving certain deported aliens of Social Security benefits that they would otherwise have been entitled to.” Supreme Court Actions,” New York Times, June 21, 1960.A more extensive piece noted the Court's rejection of the idea of “accrued property rights” in Social Security, but focused on Nestor's unique factual circumstances.High Court Rejects Pension Plea by Man Deported as Former Red,” New York Times, June 21, 1960.

93. See note 4 above.

94. Among full-length law review articles on the case, I found only one that focused on the Court's refusal to recognize accrued benefits as property rights:Lewis, James P., “The Property Interest in Social Security Benefits,” Maryland Law Review 21 (1961): 331–44.The several other articles focused on different aspects. See, e.g., Retroactivity and First Amendment Rights,” University of Pennsylvania Law Review 110 (19611962): 394435 andBill of Attainder and the Supreme Court in 1960—Flemming v. Nestor,” Washington University Law Quarterly (1961): 402–24.

95. tenBroek, Jacobus, “Social Security: Today's Challenge in Public Welfare,” Vital Speeches of the Day 27 (1961): 411–15.For greater discussion of tenBroek's role in shaping and critiquing the American welfare state, seeKornbluh, Felicia, “A Disabled State: How Blind Activists Created Modern Social Welfare Policy” (paper presented at the annual meeting of the American Society for Legal History, Baltimore, Md., November 17, 2006).

96. The National Association of Insurance Commissioners (NAIC) and the National Association of Life Underwriters (NALU) had long tried to convince the public that Social Security was no substitute for real insurance. In fact, the Nestor opinion perfectly reinforced a recent NALU resolution to oppose use of insurance terminology in the Social Security Act. Carlyle Dunaway, general counsel to the NALU, noted that “the decision [Nestor] could prove extremely helpful to NALU in its current campaign to persuade Congress to delete all insurance terminology from the Social Security Act and to insert in the Act a forthright declaration that the Social Security program is not, and is not to be represented as, an insurance program.” Statement ofDunaway, Carlyle M., National Association News 55 (1960): 70, quoted inLewis, , “The Property Interest in Social Security Benefits,” 343 n 63. See alsoAttarian, , Social Security, 221(describing the use that Ray Peterson, vice president and associate actuary of the Equitable Life Assurance Society, made of the decision and the government's briefs); Myers, Robert J., memorandum (“Further Thoughts on Quotations Relative to Nature of OASDI under Brief of Nestor Case”), –01 12, 1960,box 2, Bureau of Old-Age and Survivors Insurance—Correspondence of Director Victor Christgau, 1954–1963, Social Security Administration Archives, National Archives, College Park, Md. (observing that the NALU had started using language from Nestor as “proof” that the program is not “insurance”).

97. Victor Christgau to W. L. Mitchell, October 19, 1960, box 218, folder 011.11, Social Security Administration Archives, National Archives, College Park, Md. Christgau's memo made its way to HEW's general counsel, who sent back a terse response and dismissed the charge that Social Security had suffered. Parke M. Banta to W. L. Mitchell, December 5, 1960, box 216, folder 011.11, General Correspondence, 1960–1964, Records of the Office of the Commissioner—Commissioner's Correspondence, Social Security Administration Archives, National Archives, College Park, Md. This conversation may be part of a larger story about the internal politics of the New Deal agencies. Christgau's positions in the Agricultural Adjustment Administration and Works Progress Administration in the 1930s may have affected his stance on the nature of Social Security in 1960. I thank Dan Ernst for this suggestion.

98. Lower courts had come to similar conclusions about the nature of Social Security (that Congress was free to change it without compensating affected beneficiaries) but “[t]he Nestor decision indicates that the pattern of recurrent amendments which have characterized the history of the Social Security Act since 1939 can withstand challenge in the highest court.” Lewis, “The Property Interest in Social Security Benefits,” 343.

99. Congress has changed eligibility rules “many times over the years,” the SSA now explains. “The rules can be made more generous, or they can be made more restrictive. Benefits which are granted at one time can be withdrawn….” Social Security Administration, “Supreme Court Case: Flemming v. Nestor,” (25 April 2006). See alsoAttarian, , Social Security, 219(“So the highest court in the land had settled it: there is no accrued, vested property right to Social Security benefits. Social Security has no contract for benefits. And there is no sound analogy between Social Security and private insurance or annuities”).

100. Flemming v. Nestor was not the only motivation for “The New Property.” It was part of a series of cases in which authorities used control over privileges and benefits to punish non-conforming individuals. Furthermore, as Martha Davis and Felicia Kornbluh note, many of these cases came to Reich's attention only after Justine Wise Polier, a New York family court judge and the mother of a boyhood friend, asked Reich to look into the legality of “midnight raids” on welfare recipients.Davis, Martha, Brutal Need: Lawyers and the Welfare Rights Movement, 1960–1973 (New Haven: Yale University Press, 1993), 84;Kornbluh, Felicia, The Battle over Welfare Rights: Poverty and Politics in Modern America (Philadelphia: University of Pennsylvania Press, 2007).Last, there is a more mundane explanation for the article and its timing: Reich was assigned to teach an introductory course on Property, a subject of which he knew “virtually nothing.” When he read the Framers' discussions of property and government, he saw his contemporary concerns in a new light. Charles Reich, e-mail message to author, October 19, 2006.

101. Reich, Charles, The Greening of America (New York: Random House, 1970).

102. Rabin, Robert L., “The Administrative State and Its Excesses: Reflections on ‘The New Property,’” University of San Francisco Law Review 24 (1990): 275.

103. Schrecker, , Many Are the Crimes, 154.See alsoEngelhardt, Tom, The End of Victory Culture: Cold War America and the Disillusioning of a Generation (New York: Basic Books, 1995)(discussing Americans' preoccupation with the “enemy within” and the merging of “national security and insecurity” in American culture during the 1950s).

104. The best source on employment tests remainsBrown, Ralph S. Jr, Loyalty and Security: Employment Tests in the United States (New Haven: Yale University Press, 1958).At the time of publication, Brown estimated that half of professional workers in the U.S. were “exposed to some kind of oath, inquiry, supervision, or surveillance” designed to test their loyalty. Surveying the total labor force (including public employees) Brown concluded that “at least one person out of five, as a condition of his current employment, has taken a test, or completed a loyalty statement, or achieved official security clearance, or survived some unidentified private scrutiny.” Ibid., 176.

105. In 1950 governmental occupations included 13.3 percent of the nation's non-agricultural employees. This percentage steadily grew, reaching 15.4 percent by 1950 and 19.1 percent by 1975.Carter, Susan B. et al., eds., Historical Statistics of the United States, Millennial Edition Online (Cambridge: Cambridge University Press, 2007),http://hsus. (16 January 2007).

106. Schrecker reports that by the end of the Truman administration there were 518 loyalty dismissals and 2,636 resignations. The figures from the Eisenhower administration, when 1,456 federal employees were fired, were not disaggregated. Schrecker estimates a low number of loyalty dismissals, but also notes evidence that “ten times as many people with security problems in their files resigned as were fired.” Schrecker, , Many Are the Crimes, 298. The government also flushed out employees that appeared vulnerable to coercion by the enemy, such as homosexuals.Johnson, David K., The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2004).

107. Reich, Charles, The Sorcerer of Bolinas Reef (New York: Random House, 1976), 56.

108. Barsky, 347 U.S. 442, 451 (1954).

109. “What the State Department was saying came down to this: you are free to exercise your constitutional rights, but we can deny you a passport for doing so; the Constitution only protects you from criminal punishment, not other kinds of sanctions and deprivations.” Reich, Charles, “The New Property after 25 Years,” University of San Francisco Law Review 24 (1990): 232;Comment, , “Passport Refusal for Political Reasons: Constitutional Issues and Judicial Review,” Yale Law Journal 61 (1952): 171203.See alsoKutler, Stanley, “Government by Discretion: The Queendom of Passports,” in The American Inquisition: Justice and Injustice in the Cold War (New York: Hill and Wang, 1982).

110. Thomas I. Emerson was among the leading civil liberties scholars of his generation. He was also active in politics. He ran for governor on the Wallace Progressive Party ticket in 1948, and during the McCarthy era he belonged to the National Committee to Abolish the House Committee on Un-American Activities and the National Lawyers Guild. For a complete list of writings by and about Emerson, seeWritings of Thomas Irwin Emerson,” Yale Law Journal 101 (1991): 327–30.

111. Reich, , “The New Property after 25 Years,” 234.Reich would have been vulnerable to this charge: he supported Henry Wallace for President in 1948 and was a friend of prominent leftists like I. F. Stone and Leonard Boudin. According to Reich, he did not support communism “in any form,” but he opposed the Cold War, the Truman loyalty program, the anticommunist oath for labor leaders in the Taft-Hartley Act, “and all manner of procorporate anti-leftism.” Charles Reich, e-mail message to author, October 19, 2006.

112. Reich, , The Sorcerer of Bolinas Reef, 6.

113. Ibid., 234; Barsky, 347 U.S. 442 (1954)(upholding the statute and the procedures that the New York Board of Regents used to suspend Barsky's license). Justice Black, joined by Justice Douglas, dissented. Reich credits the following statement from their dissent to his own influence: “The right to practice [medicine] is…a very precious part of the liberty of an individual physician or surgeon. It may mean more than any property. Such a right is protected from arbitrary infringement by our Constitution, which forbids any state to deprive a person of liberty or property without due process of law.” Ibid., 459 (Black, J., dissenting) (emphasis added); Reich, , “The New Property after 25 Years,” 235.

114. Here I use “welfare state” to refer to its most “visible” components, programs like Social Security, unemployment insurance, and Aid to Families with Dependent Children. Scholars now recognize that there are important, less visible pieces of the American welfare state such as the tax code and private employer pensions. See, e.g.,Hacker, Jacob, The Divided Welfare State: The Battle over Public and Private Social Benefits in the United States (Cambridge, Eng.: Cambridge University Press, 2002);Howard, Christopher, The Hidden Welfare State: Tax Expenditures and Social Policy in the United States (Princeton: Princeton University Press, 1997); Katz, Michael B., The Price of Citizenship: Redefining the American Welfare State (New York: Henry Holt, 2001);Klein, Jennifer, For All These Rights: Business, Labor, and the Shaping of America's Public-Private Welfare State (Princeton: Princeton University Press, 2003).

115. See note 12 above.

116. “By 1964, after the loyalty investigations of the 1950s, it was all too apparent that unprotected new forms of wealth afforded a ready device for using economic retaliation as an extra-constitutional means of punishment.” Reich, Charles, “Property Law and the New Economic Order: A Betrayal of Middle Americans and the Poor,” Chicago-Kent Law Review 71 (1996): 820.

117. Reich, Charles, “Midnight Welfare Searches and the Social Security Act,” Yale Law Journal 72 (1963): 1347–60.Other arbitrary exercises of official power bothered Reich, too, like the series of cases involving bar admission. One of Reich's colleagues at Yale Law School, Clyde Summers, was denied bar membership for being a conscientious objector to World War II. Another well-known legal academic, George Anastaplo, spent over five years litigating the Illinois bar's refusal to admit him after he would not answer questions about CP affiliations. Charles Reich, e-mail message to author, October 19, 2006. SeeIn re Clyde Wilson Summers, 323 U.S. 705 (1944);In re Anastaplo, 366 U.S. 82 (1961).

118. On the dangers of the “welfare state,” seeGlueck, Sheldon, ed., The Welfare State and the National Welfare: A Symposium on Some of the Threatening Tendencies of Our Times (Cambridge, Mass.: Addison-Wesley Press, 1952)(including commentaries by Bernard Baruch, Harry F. Byrd, John Foster Dulles, Dwight D. Eisenhower, Herbert Hoover, and Roscoe Pound); Abels, Jules, The Welfare State: A Mortgage on America's Future (New York: Duell, Sloan and Pearce, 1951);Moreland, Marc, “The Welfare State: Embattled Concept,” Phylon 11 (1950): 164–70(attempting to explain why “the mere notion of the welfare state” had become “an anathema, an abomination” to the dominant political and business interests). On the promise of a “welfare state,” see, e.g.,Douglas, William O., “The Human Welfare State,” University of Pennsylvania Law Review 97 (April 1949): 597607.For an excellent collection of magazine articles and speeches discussing the existence, nature, strengths, and involweaknesses of a “welfare state” in America, seeMarx, Herbert J. Jr, ed., The Welfare State (New York: The H. W. Wilson Company, 1950).For a sampling of newspaper coverage, see, e.g., “Truman'sWelfare State,’” New York Times, January 9, 1949(“Mr. Truman's other policies represent—let us face this fact squarely—the growth of the ‘welfare state’ in America”); Commager, Henry Steele, “Appraisal of the Welfare State,” New York Times, May 15, 1949(explaining the term “welfare state” and its differences from socialism); Byrnes Hits Trend to ‘Welfare State,’New York Times, June 19, 1949 (quoting former Secretary of State James F. Byrnes attacking Truman's new programs for “point[ing] inevitably to a welfare state”);Freeman, Lucy, “Dewey Lists Gains in State Welfare,” New York Times, November 16, 1949(quoting New York Governor Dewey on the “rising war of words over the phrase ‘welfare state’”).

119. Writing in 1962, Yale law professor Calvin Woodward described “widespread acceptance of the welfare state standard,” the notion that “poverty is an ‘economic’ phenomenon that can, must, and should be abolished” and that “the state is the sole social institution capable of dealing with the economic forces which give rise to that phenomenon.” Woodward, Calvin, “Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State,” Yale Law Journal 72 (19621963): 288. See alsoJones, Harry W., “The Rule of Law and the Welfare State,” Columbia Law Review 58 (February 1958): 143–56(noting that America had developed what Europeans called a “welfare state,” marked by a “vast increase in the range and detail of government regulation of privately owned economic enterprise,” “the direct furnishing of services by government to individual members of the national community,” and “increasing government ownership and operation of industries and businesses”); tenBroek, Jacobus and Wilson, Richard B., “Public Assistance and Social Insurance—A Normative Evaluation,” U.C.L.A. Law Review 1 (April 1954): 238(“[t]aking it as settled that public welfare on the present scale of magnitude or a greater one is a fixed and permanent part of our national policy…”).

120. See, e.g., tenBroek, and Wilson, , “Public Assistance and Social Insurance,” 239 (asking how the welfare state “fit[s] into our democratic system of government,” as well as whether it is “in harmony with American political and constitutional ideals,” “consistent with sound economic principles,” and “compatible with existing knowledge of the nature of man”); Jones, , “The Rule of Law and the Welfare State,” 143(asking “How, if at all, can the values associated with the rule of law be achieved in today's welfare state?”); Willcox, Alanson W., “Patterns of Social Legislation: Reflections on the Welfare State,” Journal of Public Law 8 (1957): 8(balancing the economic value of the welfare state against charges that it causes “a net loss of freedom, and damage to the American character”); Wollenberg, Elmer F., “Vested Rights in Social-Security Benefits,” Oregon Law Review 37 (19571958): 300(worrying that judges or legislators would “transplant” inappropriate property- and contract-based legal concepts to the government social insurance program).

121. Reich, , “The New Property,” 768. See alsoJones, , “The Rule of Law and the Welfare State,” 155(“Now the welfare state brings its staggering volume of additional grist to the mills of justice: new rights in vast number and infinitely more widely dispersed among the citizenship than the old rights ever were. In the scale of legal valuation, these new and more widely asserted rights are…certainly as dear to their possessors as contract and property rights are to those who possess them”).

122. 347 U.S. 442 (1954) (upholding New York's suspension of a surgeon's medical license after he was convicted of contempt of Congress).

123. 292 F.2d 719 (D.C. Cir. 1961) (upholding the Coast Guard's denial of an operator's license to an applicant who refused to answer questions about membership in subversive organizations).

124. 285 F.2d 666 (D.C. Cir. 1960) (holding that the Federal Communications Commission could legally refuse to renew a radio operator's license for refusing to answer questions about CP membership).

125. Reich, , “The New Property,” 768.

126. Ibid., 769.

127. “If the day comes when most private ownership is supplanted by government largess, how then will governmental power over individuals be contained? What will dependence do to the American character?…Without the security of the person which individual wealth provides and which largess fails to provide, what, indeed, will we become?” Ibid., 770–71.

128. Ibid., 775.

129. The invocation of communism and fascism as two poles, equally distant from freedom and American values, illustrates how Reich deployed classic anticommunist liberal ideas and the anti-extremist language of the early sixties in the service of greater protections for the clients of the welfare state. On the shifting ideology of anticommunism, seePowers, Richard Gid, Not without Honor: The History of American Anticommunism (New York: The Free Press, 1995).

130. Unlike Locke, however, Reich believed that “Property is not a natural right but a deliberate construction by society”; all property comes from the state.Reich, , “The New Property,” 771.

131. Ibid., 785–87.

132. “The New Property” articulates a variant of the idea that “[p]roperty protects all other rights, because property enables citizens to be independent and hence capable of self-government.” It invokes an older republican tradition in which property, especially agricultural property, gives the citizen a “safe haven” that “enables him to form independent judgments and to debate and defend his views with courage and vigor in the political forum.” Since the republican property owner is “dependent on no one,” he is “fit to exercise the franchise and generally take part in the polity.” Rose, Carol, “Property as ‘The Guardian of Every Other Right,’” in Property Law on the Threshold of the 21st Century, ed. Maanen, G. E. van and Walt, A. van der (Antwerp: MAKLU Uitgevers Antwerpen—Apeldoorn, 1996), 487–93, 488.

133. Douglas, , “The Human Welfare State,” 597.

134. Alexander, Gregory S., Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776–1970 (Chicago: University of Chicago Press, 1997), 371.

135. Reich, , “The New Property after 25 Years,” app., 242–71.In 1991, the Yale Law Journal found “The New Property” to be its most cited article to date.Shapiro, Fred R., “The Most Cited Articles from The Yale Law Journal,” Yale Law Journal 100 (1994): 14491515.

136. Epstein, , “No New Property,” 748.

137. Kelly, 397 U.S. 254 (1969).

138. Ibid., 271–79 (Black, J., dissenting).

139. Davis, Brutal Need; Orleck, Annelise, Storming Caesar's Palace: How Black Mothers Fought Their Own War on Poverty (Boston: Beacon Press, 2005), 133–34.

140. Friendly, Henry J., “Some Kind of Hearing,” University of Pennsylvania Law Review (1975): 1268.

141. Ibid., 1273–75 (citingBell v. Burson, 402 U.S. 535 [1971]);Fuentes v. Shevin, 407 U.S. 67 (1972);Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973);Perry v. Sinderman, 411 U.S. 593 (1972); Board of Regents v. Roth, 408 U.S. 564 (1974);Goss v. Lopez, 419 U.S. 565 (1975).

142. Goss v. Lopez, 419 U.S. 565 (1975), 1275.

143. 424 U.S. 319, 334–34.

144. Reich, Charles, “Beyond the New Property: An Ecological View of Due Process,” Brooklyn Law Review 56 (Fall 1990): 733.Reich claims that, “judged by the experience of twenty years,” the best way to realize his goal from “The New Property” would be to “give economic security the status of a constitutional right which must be honored ahead of the other goals of society.” Ibid.

145. Healey, and Isserman, , Dorothy Healey Remembers, 182.

146. Nestor, interview, December 27, 1974, interview 06d segment 3 segkey: a1606.

147. Many scholars characterize the years between the New Deal and the Great Society as a period of “benign neglect” in the history of welfare state development. It's time to reconsider that evaluation.

148. Sterett, Susan, Public Pensions: Gender and Civic Service in the States, 1850–1937 (Ithaca: Cornell University Press, 2003), 10.

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Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of “New Property”

  • Karen M. Tani


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