Randall Kennedy: U.S.’s Deepest Fault Line

Poverty Keeps People From Joining Society, Law Professor Argues

Randall Kennedy is Michael R. Klein Professor of Law at Harvard Law School, specializing in civil rights and poverty law, among other issues. At a conference titled “Can the United States Remain United?”, Kennedy discussed the role of poverty in hindering social cohesion.

Well, I’m deeply grateful to Gregory Rodriguez and his colleagues at the Center for Social Cohesion for writing me to participate in this symposium. Implicit in the center’s title is the idea that social cohesion is good. I suppose that it is, under certain conditions. There are qualities, however, characterized by dictatorial social cohesion. That is not the goal of the center – that is to foster through research, study, and debate. The cohesion the center seeks to foster is a democratic cohesion that frames a decent society. There are now and there have long been a number of fault lines in America that diminish the prospect of an attractive social cohesion. I think there is a religious bias, particularly nowadays, prejudice against Muslims; gender bias, particularly mistreatment of women; sexual bias, particularly discriminations against gays and lesbians.

What though, is America’s deepest fault line? It is the boundary that separates those with sufficient resources to undergird the enjoyment of relatively secure, dignified, hopeful, skill-enhancing existence from those, the impoverished, who are consigned to insecurity, humiliation, isolation, and other baleful conditions. The resources to which I refer are manifold – they include parents, nutrition, health care, housing, education and employment. But in the background of each of these resources, nourishing them inconspicuously but essentially, just like water, is money. That is why the boundary between adequate financing and severe financial want marks the most far-reaching but mystified division of American life. Those without a decent financial minimum are much more vulnerable than those with a decent minimum to the terrors of nature, bad luck and communal failure. As the journalist David Shipler puts it, “being poor means being unprotected.”

As I use the term “the poor” are those at or beneath the federal government’s poverty level. The poverty threshold for an individual under 65 in 2009 was $11,161.00. For an adult with one child, it was $17,268.00. For two adults with three children it was $25,603.00 And so on and so forth. A formula for determining the poverty threshold has detractors. The formula has not been substantially revised in over half a century. It does not take into account regional differences. It does not take into account certain non-cash forms of income. And by the same token, does not take into account certain expenses.

Some, mainly liberals, contend that the poverty line is too low, and thus is under-inclusive. Others, mainly conservative, maintain that it is too high, and thus, over-inclusive. I agree with the former, but my purpose here is not to explore, much less, settle a complicated methodological stew. My purpose is to highlight a highly toxic condition that receives all too little attention and empathy: the condition of severe financial deprivation. For that purpose, the federal poverty line, flawed as it is, works satisfactorily.

My direct concern is not with inequality, per se; rather, my direct concern is privation. I am not so much alarmed at the state of the socioeconomic ceiling, or more particularly, its absence which favors the wealthy. Rather, I’m alarmed about the state of the socioeconomic floor, more particularly, its sagging and adequacy.

How many people in America are poor? The number is, or should be arresting. According to the Bureau of the Census, in 2009, 14.3% of all persons in America lived in poverty – that represents some 43 and a half million people – 10 million more than the entire population of Canada. Thirty-five percent of the population of the American impoverished are children. What does it mean, concretely, to be poor? Poverty can have many meanings, but the poor are by no means monolithic. Most stay impoverished only intermittently, but then there are the hard-core poor, the underclass, the truly disadvantaged, who remain mired beneath the poverty line for long stretches of time. Regardless of whether they are short-term or long-term inmates of poverty, however, the poor face perilous, painful and worst of all, crippling circumstances.

Among the constellation of things poverty may mean are the following: being dependent upon financial institutions, pay-day loan outputs that charge serious fees to service those unable to afford bank accounts; living in housing that, with its mold, mice-dropping, roaches and nearby toxic dumps, exacerbates your child’s asthma; being unable to pay an ambulance or an emergency bill, and having one’s credit downgraded on account of delinquency; living in neighborhoods that are menaced simultaneously by criminals and police, who when dealing with the poor, fail all too often to remember that their job is to protect and serve – not harass and be intimidating; growing up in homes in which uneducated adults fail to prepare children for school in their most impressionable years; welcoming jail or even prison as the respite from the utter destitution of the street. Here, after all, in the joint, one at least received shelter, health care, and meals, even if these items are limited behind bars. And being unable to flee a flooding city, for lack of transportation, or alternative housing. Impoverishment means for many living apart from the so-called “mainstream American society,” the sectors of a society to which politicians pay some heed. It means being hidden in plain sight behind an odd curtain of invisibility; it means residing in what might be termed “the other America.” It means being unable to even enter bankruptcy.

This puts me in mind of a case decided by the Supreme Court in 1973, United States vs. Crass. Crass was an indigent who challenged the constitutionality of a law that conditioned his eligibility to apply for bankruptcy protection, on the payment of a $50 fee. Reversing the holding of a lower court, a closely divided Supreme Court upheld the constitutionality of the fee required. Writing for the court, Justice Harry Blackman evidenced the skepticism that often bleeds a protest about the predicament of the poor. “If the $50 filing fee is paid in installments, as the law allowed,” Justice Blackman observed, “the average weekly payment is $1.28. This is a sum less than the payments Crass makes on his couch of negligible value in storage, and less than the price of a movie, and a little more than the cost of a pack or two of cigarettes. If, as Crass alleges, a discharge in bankruptcy will afford him that new start he so desires, and if he really needs and desires that discharge, this much available revenue should be in his able-bodied reach.”

My old boss, Thurgood Marshall, had a different, better view. “I cannot agree with the majority,” he declared in dissent, “that is so easy for the desperately poor to save each week over the course of six months. The 1970 census found that over 8,000 families in the nation had annual incomes less than $1000.00, or $19.23/week. I see no reason that families in such place sacrifice over five percent of their their annual income as a prerequisite to getting a discharge in bankruptcy. It may be easy for some people to think that weekly savings of less than two dollars are no burden, but no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. A pack of two of cigarettes, maybe for them, is not a routine purchase, but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which many people see as an almost weekly activity. There are more important things to do with what little money they have – like attempting to provide some comfort to a gravely ill child. It is perfectly proper for judges to disagree with what the Constitution requires, but it is disgraceful for the interpretation of the Constitution to be premised upon unfounded assumptions about how people live.”

Poverty and its alleviation occupies a lowly standing among the priorities of the nation’s most influential leaders. For a brief moment after Hurricane Katrina, the locals paid some attention to the plight of the impoverished. On September 15, 2005 at Jackson Square in New Orleans, President George W. Bush recognized “deep, persistent poverty” in the Gulf region, and said that we had a duty to confront this poverty with bold action. That sympathetic attentiveness, however, was evanescent. In a cover story in 2005 forNewsweek, Jonathan Alter remarked that “it takes a catastrophe like Katrina to strip away the old evasions, hypocrisies and not-so-benign neglect.” It takes the United States a big, black eye visible around the world, to help the rest of us begin to see again. “Does this mean a big war on poverty,” you may ask? No, is the answer. But this disaster may offer a chance to start a skirmish, or at least make Washington think harder about why the richest country on earth looks like the third world.

A year later, Alter complained, justifiably, that President Bush had dropped the ball entirely, that Congress had failed to perform much better, and that the American public as a whole seemed disinclined to grapple with poverty seriously. To the extent that the poor do make it onto center stage, to do so typically invites vilification — as recently shown when Florida enacted the Needy Families Act, which requires citizens of the Sunshine State to pass a drug test in order to be eligible for safe welfare payments.

Absence of personal responsibility has long been seen in some quarters as the principal cause of impoverishment. Proponents of this view include Herbert Spencer and William Graham Sumner in the early part of the 20th century, and Charles Murray in the latter part of the 20th century. This perspective attributes poverty mainly to the defects of the poor, their supposed laziness, stupidity, improvidence, promiscuity, lack of foresight, lack of discipline and penchant for exploiting the generosity of others. This moralistic hectoring of the poor, which absolves governing arrangements, is profoundly erroneous. Poverty should be seen as a communal problem. Do personal failings play a role in the predicament of the poor? Of course they do – just like the personal failings of all humans, no matter what their class. Bad decisions – to drop out of school, to have unprotected sex, to indulge in addicting drugs – often tighten the binds on the poor. But there are multitudes of poor people who conduct themselves with exemplary discipline, and fortitude, who nonetheless find themselves stuck in the cage of impoverishment, unable to earn their way out.

One of the many virtues of Barbara Ehrenreich’s classic Nickel and Dimed: On Not Getting by in America, is its vivid portrayal of how hard poor people work, only to remain poor by no fault of their own. Our leading politicians, including our current president, tell us that America is a magical place where anything is possible for those who work hard and play by the rules. Left unsaid, but stated implicitly, is the notion that financial distress must be an indication that one failed to work hard enough, or play by the rules sufficiently. This belief occupies a salient place on the emotional and imaginative landscape of America. Many poor people embrace it as they lacerate themselves.

It is, however, an idea that is deeply misleading. What we think of as personal failings is typically more than merely personal. They usually arise from sources outside of what can reasonably be considered a person’s self-control, for instance, a depressed economy. And what is one to say about that 35 percent of the poor who are children? Is their situation their fault? No, it is not, unless it is one’s fault to be born to certain mothers or fathers.

Thus far, I have said nothing about an important chapter of the poverty story – the chapter that involves race relations. I shall conclude with three points about that subject. First, racial minorities, particularly blacks and Latinos, are disproportionately present in the ranks of the impoverished. In 2009, the poverty rate for white Americans was 9.4 percent, for Asian Americans 12.5 percent, for Latino Americans 25.3 percent, and for black Americans 25.8 percent.

Second, although blacks and Latinos are disproportionately present in the ranks of the poor, they remain minorities among the impoverished. Most poor people in the United States are white, yet the portrayal of poverty in popular culture nourishes the misperception that most poor people in United States are people of color. Several careful analyses of news, magazines, films, and television news shows, and depictions in textbooks reveal that African Americans are depicted in stories of poverty far in excess of the actual representation among the impoverished. This is a point well made by Professor Martin Gillens in Why Americans Hate Welfare. When the face of poverty in America is black and brown, two things happen: blackness and brownness is stigmatized with poverty, and poverty is stigmatized with blackness and brownness. The latter is a likely factor in the exceptional stinginess and punitiveness of the American welfare regime. Third point: race relations is a major chapter in the poverty story, because racial conflict has contributed significantly to splintering the coalition that helped bring about the major poverty reforms of the 20th century. Many whites who once supported the coalition deflected from it, in part because of the fears that leaders had begun to give away too much to colored people. A consequence has been a political environment that over the past several decades has become increasingly, indeed, dramatically, indifferent, if not hostile to the poor. This is a baleful trajectory to which, alas, both of the parties have contributed.

Social cohesion involves protecting the most vulnerable among us from the cruel, miserable, and remedial circumstances that grip millions of Americans who find themselves mired beneath the poverty line. The United States is often lauded for what some see as its positive exceptionalism: distinctive commitments to tradition–such as civilian rule, checks and balances, constitutionalism–private enterprise and individualism. In its treatment of the whole, the United States can rightly be criticized for negative exceptionalism.

As Timothy Smeeding and others have observed, nowhere is the United States more exceptional than in its policy toward the impoverished. America’s child poverty rate is higher than that of any other wealthy, industrialized country. That should not be surprising. American anti-poverty policy does less to compensate low-wage workers and assist them in escaping impoverishment than any other advanced nation. President George W. Bush was correct when he asserted that we have a duty to respond to the predicament of the poor – especially to that 35 percent who are children. Sadly, it is a duty that America as a whole, has failed to honor.

Thank you very much for your attention.

Read “The Takeaway” from the Center for Social Cohesion conference.

Read retired Supreme Court Justice Sandra Day O’Connor’s remarks on cohesion.

*Photo by Sam Hurd