The Poverty of Privacy Rights

Khiara M. Bridges

• Publisher: Stanford Law Books
• Year: 2017
• ISBN:
  9781503602304
• Edition: 1
• Topic: Law
• Subtopic: Science & Technology Law
• Index: Law

The Poverty of Privacy Rights makes a simple, controversial argument: Poor mothers in America have been deprived of the right to privacy.

The U.S. Constitution is supposed to bestow rights equally. Yet the poor are subject to invasions of privacy that can be perceived as gross demonstrations of governmental power without limits. Courts have routinely upheld the constitutionality of privacy invasions on the poor, and legal scholars typically understand marginalized populations to have "weak versions" of the privacy rights everyone else enjoys. Khiara M. Bridges investigates poor mothers' experiences with the state—both when they receive public assistance and when they do not. Presenting a holistic view of just how the state intervenes in all facets of poor mothers' privacy, Bridges shows how the Constitution has not been interpreted to bestow these women with family, informational, and reproductive privacy rights. Bridges seeks to turn popular thinking on its head: Poor mothers' lack of privacy is not a function of their reliance on government assistance—rather it is a function of their not bearing any privacy rights in the first place. Until we disrupt the cultural narratives that equate poverty with immorality, poor mothers will continue to be denied this right.

1

The Moral Construction of Poverty

Voices throughout history have insisted that the poor person’s poverty necessarily demonstrates his behavioral and ethical deficiencies. Some historians trace this well-documented idea, the moral construction of poverty, in the United States to the industrialization of the American economy. They contend that, prior to the Civil War, it was not widely assumed that a compromised character was responsible for an individual’s indigence. However, around the onset of the industrial revolution, “[a] new ideology arose . . . that attributed moral character deficiencies to the poor” (Katz 1985, 252).¹

Regardless of the precise moment in history when poverty and immorality became linked discursively, our present society certainly is one in which the relationship between the two concepts is firmly established. On any given day, one need not listen especially closely in order to hear a narrative in political or popular discourse that explains poverty in terms of the deficient character of the people living that poverty. The examples really are quite ubiquitous.

Welfare Reform

We can start with Temporary Assistance for Needy Families (TANF), the federal program that partners with state governments to offer cash assistance to indigent families. TANF was created in 1997 by the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)—a piece of legislation that does not at all attempt to conceal its authors’ conviction that the roots of poverty are located in the individual and her bad behavior. Indeed, PRWORA bears in its title the behaviorist explanation of poverty that motivates it: It is the Personal Responsibility and Work Opportunity Reconciliation Act. While there are several noteworthy features of TANF, the most relevant to the present discussion is the dual emphasis that TANF places on getting beneficiaries of the program into the wage labor market and into marriages.

With respect to getting beneficiaries into the wage labor market, TANF requires recipients to engage in any of a number of “work activities” for varying hours depending on the beneficiary’s family structure (U.S. Code 42 (2006), § 607(c)). Should a beneficiary fail to meet the mandatory work requirements, the statute gives states the discretion to reduce her grant or to terminate it altogether (§ 607(e)).

Further, TANF also attempts to steer beneficiaries into marriages. When passing PRWORA, Congress presented the lack of marriage as the reason why there are so many problems in the United States. Indeed, in the congressional findings that open PRWORA, the first facts that Congress “found” were that “[m]arriage is the foundation of a successful society” and that “[m]arriage is an essential institution of a successful society which promotes the interests of children” (§ 601). Presumably, the parade of horribles that makes up the balance of PRWORA’s congressional findings stems from the absence of marriage.

Congress tells us that children born “out-of-wedlock” are “3 times more likely to be on welfare when they grow up”; have compromised “school performance and peer adjustment”; have “lower cognitive scores, lower educational aspirations, and a greater likelihood of becoming teenage parents themselves”; are “3 times more likely to fail and repeat a year in grade school than are children from intact 2-parent families”; are “4 times more likely to be expelled or suspended from school”; are living in neighborhoods with “higher rates of violent crime”; and are overpopulating the “[s]tate juvenile justice system.” Apparently, marriage is the solution to these social ills. Thus, the legislation lists a series of activities that may promote “healthy marriage,” all of which states may fund with TANF monies (§ 603).

In this way, TANF presents the problem of poverty as stemming from individual bad behavior. In essence, TANF claims that if poor people would just get married and/or get a job, their poverty would go away. Sociologist Loic Wacquant (2009) agrees with this reading, writing that TANF has

powerfully reasserted the fiction according to which poverty is a matter of individual deed and will, and that it would suffice to stoke the matrimonial fire and zeal for work of those on assistance by means of material constraint and moral suasion to defeat the culpable “dependency” they evince. . . . These moralistic stereotypes are tailor-made for legitimizing the new politics of poverty. (100–101)

Political Discourse

In 2014, then Speaker of the House John Boehner philosophized that the reason why large numbers of people remained unemployed after the official end of the Great Recession was not because the economy had transformed in ways that made jobs scarce for some segments of the population. Instead, he attributed enduring unemployment to the mindset of the unemployed: “I think this idea that has been born over the last—maybe out of the economy—over the last couple of years: ‘You know I really don’t have to work. I really don’t want to do this. I think I’d just rather sit around.’ This is a very sick idea for our country” (Cowan 2014). For Boehner, post-recession unemployment rates do no more than quantify and aggregate individuals’ desires to avoid productive, valuable work. Should those individuals eventually find themselves in poverty, it will be due to their “sick” wish to avoid the paid labor force.

Also in 2014, Paul Ryan, who would become Speaker of the House following Boehner’s resignation, articulated his sense that the problems of the “inner city”—the facially race-neutral signifier that, nevertheless, signifies a space populated by poor black and brown bodies—were attributable to “culture.” He observed that “[w]e have got this tailspin of culture, in our inner cities in particular, of men not working and just generations of men not even thinking about working or learning the value and the culture of work. . . . There is a real culture problem here that has to be dealt with” (Delaney 2014). We can understand Ryan to be arguing that unemployment and poverty, particularly in the “inner city,” can be explained in terms of a pathological worldview that misrecognizes the value of engaging in work in the paid labor market.

Pundits and Popular Discourse

On his tremendously popular television show, The O’Reilly Factor, television personality and bestselling author Bill O’Reilly has repeatedly articulated the view that poor people engage in imprudent, immoral behavior and that this behavior is responsible for their poverty. While some may be inclined to dismiss O’Reilly as a pundit among many pundits and his views as nothing more than perspectives that are palatable only to the radically conservative, his astonishing reach should not be underestimated. Fox News Channel, which airs O’Reilly’s show, has been the most watched cable news network for several years. Moreover, at the end of the third quarter in 2013, The O’Reilly Factor averaged 2.54 million viewers (Bibel 2013). Following the mid-term elections in 2014, The O’Reilly Factor had over 4 million viewers (Mediaite 2014).

On November 13, 2014, The O’Reilly Factor invited journalist Bernard Goldberg to discuss race and poverty (Richter 2014). Goldberg began by citing statistics that purport to show that only 8 percent of people who finish high school, who avoid having children before they are married, and who avoid having children before they reach the age of 20 are in poverty. However, almost 80 percent of people who do not finish high school, who have children outside of marriage, and who have children while teenagers are in poverty. When O’Reilly questions Goldberg as to why “the left” does not acknowledge this, he responds,

I think it’s because it’s an embarrassment. [Black elites] don’t give dysfunctional behavior—and I think that’s a fair description, if you drop out of high school, and you have babies when you’re a teenager, it is dysfunctional behavior—they don’t give that as a reason because it’s embarrassing. They blame racism. Maybe once upon a time, when there were less opportunities for black people, racism might have been a legitimate reason. It isn’t today.

O’Reilly concludes the segment with the statement, “Poverty is colorblind. And if you make mistakes in your life, and you dig yourself a hole where you’re not educated and you gotta be on the dole to support your kids and you’re dependent and all of that and you can’t develop a career or a talent, you’re done.”

O’Reilly’s sentiments in the November show echoed those that he had articulated earlier in the year. On January 9, 2014, he paused to reflect on President Lyndon Johnson’s war on poverty, ultimately concluding that it was a misconceived effort (Fox News Insider 2014). He reached this conclusion because the social programs that Johnson passed in his effort to eliminate poverty in the country did not attempt to reach the true cause of destitution in O’Reilly’s view: bad behavior. O’Reilly offered that “[m]aybe we should have a war against chaotic, irresponsible parents. But America will never launch that kind of war—because it’s too judgmental and deeply affects the minority precincts. Therefore, cowardly politicians and race hustlers continue to bear witness that our economic system is at fault rather than bad personal decision making.” He asserted that “[p]overty will not change until personal behavior does. Addictive behavior, laziness, [and] apathy all override social justice goals.” He described the nation as a meritocracy in which success and wealth are available to all who demonstrate sustained effort. He argued that

[e]very child on this planet can learn. But, parents must drive the process by forcing the kids to perform in school. Every American can work hard. And if you do, you’ll make money. Every American can practice self-respect, and if you do, people will hire you. But, if you’re dishonest, embrace intoxicants, conceive children you can’t support, act in a crude, self-disrespectful way, and generally believe that you are owed prosperity, poverty may well come knocking.

In short, O’Reilly placed immoral behavior at the foundation of poverty in the United States. When a guest on the show disputed this analysis, redirected attention to the dearth of available jobs that pay livable wages, and contended that “[w]e don’t have a problem with workers who are too lazy to work for the jobs with good pay,” O’Reilly was moved to cut him off. He interjected, “Yes, we do. We have an enormous underclass. . . . We have a problem of people who can’t do the jobs that pay high wages. But, we also have an underclass that’s in chaos. Go to Detroit if you don’t believe me.” When his guest countered that poor people cannot attain jobs that pay a livable wage because they have not been given the skills that they need, O’Reilly replied that poor people necessarily had been presented with the opportunity to acquire the requisite skills. The problem was that they had not accepted the skills. He concluded that “[t]he parents have to drive the kid in [to the schools]. And the irresponsible parents don’t. You have to work hard to accept the education. And a number of Americans will not do that.”

O’Reilly’s views and his large viewership are worth discussing for two reasons. First, because millions of viewers watch his show every night, he enjoys a large platform from which to popularize the idea that immoral behavior—the refusal to accept education and job skills that have been offered, the failure to impress upon one’s children the importance of going to school and working hard, having sex outside of marriage, having children outside of marriage, allowing oneself to become addicted to intoxicants, and simply being lazy—causes poverty.

Second, O’Reilly’s large viewership is significant not only because of its effects—that is, he may convince those who are otherwise unconvinced that behavioral and ethical deficiencies cause poverty. His viewership also is significant because of its causes—that is, it may indicate that large numbers of people are already convinced that behavioral and ethical deficiencies cause poverty: Millions may watch the show because, in watching it, they can hear someone articulate the views that are already in line with their own.

. . .

Of course, structural explanations of poverty—which insist that macro forces and institutions cause poverty—have some degree of salience in the United States. Consider that in the early days of the campaign for the 2016 presidential election, Republican candidate Jeb Bush said that Americans needed to “work longer hours and through their productivity gain more income for their families” (O’Keefe 2015). This statement—which might be interpreted to argue that workers are not working hard enough if they are not earning enough income to support themselves and their families—is consistent with individualist explanations of poverty.

Indeed, economist and New York Times columnist Paul Krugman (2015) argues that to interpret Bush’s remarks as motivated by the moral construction of poverty is consistent with Bush’s professed intellectual inclinations. Krugman writes that Bush has expressed an affinity for conservative social analyst Charles Murray’s scholarship. And in Murray’s recent book Coming Apart, Murray has observed that “working-class white families are changing in much the same way that African-American families changed in the 1950s and 1960s, with declining rates of marriage and labor force participation” (quoted in Krugman 2015). Krugman continues:

Some of us look at these changes and see them as consequences of an economy that no longer offers good jobs to ordinary workers. This happened to African-Americans first, as blue-collar jobs disappeared from inner cities, but has now become a much wider phenomenon thanks to soaring income inequality. Mr. Murray, however, sees the changes as the consequence of a mysterious decline in traditional values, enabled by government programs which mean that men no longer “need to work to survive.” And Mr. Bush presumably shares that view. (Krugman 2015)

Bush eventually disputed this interpretation of his “work longer hours” remark. He stated that the remark was not an argument that workers who are having trouble supporting their families are lazy; instead, it was an indictment of the lack of full-time jobs available in the labor market (O’Keefe 2015). Bush stated that his comment was a measure of his concern for the “6.5 million part-time workers [who] want to work full-time” (O’Keefe 2015). Thus, Bush recognized the political inadvisability of blatantly individualist explanations of poverty and low income, and he instead embraced structural explanations of the phenomena—arguing that the country needed “high, sustained economic growth” in order to solve the problem of the evaporation of the livable wage (O’Keefe 2015).

Moreover, in recent years, studies that endeavor to show the precise structural mechanisms that produce poverty have been well received. For example, economist David Autor (2010) has documented in his scholarship the macro forces that have combined to produce poverty in the United States. In one well-cited paper, he notes that

the structure of job opportunities in the United States has sharply polarized over the past two decades, with expanding job opportunities in both high-skill, high-wage occupations and low-skill, low-wage occupations, coupled with contracting opportunities in middle-wage, middle-skill white-collar and blue-collar jobs. . . . [J]ob opportunities are declining in both middle-skill, white-collar clerical, administrative, and sales occupations and in middle-skill, blue-collar production, craft, and operative occupations. The decline in middle-skill jobs has been detrimental to the earnings and labor force participation rates of workers without a four-year college education, and differentially so for males, who are increasingly concentrated in low-paying service occupations. (2010, 1)

Autor notes that middle-skill jobs likely have disappeared in the United States because they have been offshored or because technology has made it unnecessary to hire workers to perform the tasks that the job requires (2010, 4). Consequently, these jobs have rapidly vanished from the labor market in the United States.

The thrust of Autor’s oeuvre is that the jobs that pay wages that can support middle-skill workers are simply not there. If these workers are poor, it is not because they are lazy, or promiscuous, or criminally inclined. It is because the market does not contain opportunities for them to be anything but poor. Notably, people and organizations from both sides of the political spectrum have frequently cited Autor’s work (Sherk 2014; Stark and Zolt 2013).

Nevertheless, structural explanations of poverty have not deeply saturated the culture. In fact, a poll that the Pew Research Center conducted in January 2014 confirms that a majority of Americans believe that the poor are responsible for their poverty: 60 percent of respondents agreed with the proposition that “most people who want to get ahead can make it if they are willing to work hard” (Pew Research Center 2014).

Indeed, there is a substantial literature documenting that the most favored explanation of poverty in the United States is one that identifies individual behaviors as the root of indigence. In summarizing the literature, social psychologist Catherine Cozzarelli and her coauthors² write that

most of these studies find that Americans believe that there are multiple determinants of poverty[,] but that individualistic or “internal” causes (e.g., lack of effort, being lazy, low in intelligence, being on drugs) tend to be more important than societal or “external” ones (e.g., being a victim of discrimination, low wages, being forced to attend bad schools). (Cozzarelli, Wilkinson, and Tagler 2001, 210)

We might wonder why individualist explanations of poverty are so readily ...

Table of contents

• Cover
• Copyright
• Title Page
• Dedication
• Table of Contents
• Acknowledgments
• Introduction
• 1. The Moral Construction of Poverty
• 2. The Unconstitutional Conditions Doctrine: Revealing, Yet Misleading
• 3. Family Privacy
• 4. Informational Privacy
• 5. Reproductive Privacy
• Conclusion
• Notes
• Bibliography
• Index