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Universalism and Anti-Racism in Family Support


Wendy Bach (@wendyabach) is Professor of Law at the University of Tennessee Knoxville.

This post is part of a symposium on Maxine Eichner’s book, The Free Market Family.

Max Eichner’s The Free Market Family is a stunning and timely book. It is rigorous, persuasive, and understandable. Its breadth is astounding, and its solutions, with very few exceptions, are practical and wise.   And for the wonky among us, it has more data to support every proposition than any obsessive reader of footnotes could possibly desire.  What’s even more stunning, at this particular moment, is that President Biden and the apparently newly quasi-progressive center of the democratic party seem to have largely embraced its agenda. Much of what the book recommends is finding its way into bills and law. All of this makes the publication of this book a moment worthy of celebration. 

My work focuses on understanding the legal institutions that lead to and exacerbate racialized poverty.  From this perspective, this book offers much to support and some questions to raise. One of the most simultaneously appealing and disquieting aspects of this book, like its precursor The Supportive State, is Professor Eichner’s turn to universal solutions. In short, she argues that free market family policies harm all families, even if those harms differ across class. As a result, the solutions she proposes are largely universal.  In this vein she calls for universal child allowances, publicly-funded early childhood programs, pro-family employment policies and the like.    

For those in poverty, universal solutions are often the political holy grail: they ameliorate the harshest effects of poverty while being weatherized against partisan attack. As Professor Eichner argues, one only need think about the way that social security almost entirely eliminated poverty among the elderly while remaining politically sacrosanct nearly a century after its enactment. We also see this phenomenon in the ongoing political resilience of the Affordable Care Act. Universal solutions are also good because of what Derrick Bell termed interest convergence. As many scholars have detailed, poverty-based support is intertwined with racialized subordination and characterized by surveillance, social-control, and risk. Universal programs, by definition, benefit those who are not poor and those who have much more power to resist those indignities. It’s precisely for this reason we should all celebrate the recent expansion of the child tax credit to those lowest on the income scale. That credit will, presumably, be administered in precisely the same way for families at the bottom as for families at the top, and that will not only lift families out of poverty but it will do so without compromising their dignity or their safety.

But universal solutions can also sometimes overlook the particularity of racialized poverty, in at least two ways.

First, there are reasons to be a concerned about how a few of the solutions Eichner endorses will affect poor families. For instance, given some of the history around reproductive control of poor women, we might consider being a little more skeptical of programs that promote long-acting reversible contraception. As Della Winters and Adria McLaughlin highlighted in their article Soft Sterilization: Long-Acting Reversable Contraceptives in the Carceral State, LARCs have been used by at least one Tennessee judge in exchange for shortening jail sentences, and drug-using women have been paid to agree to LARC implantation. Additionally, as I have argued before, the benefits of programs like home visitation services are deeply compromised by the long, and deeply racialized, history of risk associated with accessing poverty-based support. In short, families that access benefits risk exposure to reporting out to family regulation and criminal legal system actors. Given the disproportionate targeting of family regulation and criminal legal system enforcement in poor communities of color, these risks will continue to deeply harm those families. For this reason, unless we radically improve the level of privacy protections in programs like these and dedicate enforcement resources to ensuring that privacy is not breached, poor families will continue to suffer the consequences.

Second, the universal programs Eichner proposes do nothing to address the racialized family regulation and criminal legal systems that undermine the market possibilities of poor families. For example, contributors to this blog have focused on how the carceral state has worked together with what Eichner calls “free market family policies” to severely limit the market opportunities of those families and to undermine the conditions of work for others. Noah Zatz’s work, for example, has drawn a brutal picture of the ways labor inside carceral institutions simultaneously forces individuals to work for little to no pay while undermining the labor conditions of those on the outside.  Even more broadly, scholars like Dorothy Roberts have documented the ways in which both carceral and family regulation systems work together to target and destabilize Black families. Similarly, my own work has focused on how, in the context of substance use and pregnancy, family regulation and criminal legal systems have joined forces to separate and punish families rather than devoting resources to healing and family stability. As abolitionist movements, have taught us, and as Amna Akbar has reminded us, we need to both divest from institutions creating harm and invest in supportive institutions. So in the context discussed here, we need to radically divest from family regulation systems and invest in truly supportive, dignity-enhancing and privacy-protecting family support systems.  Without implementing both the universal solutions Eichner proposes and addressing these particularized and targeted harms, we cannot realize the vision of supported families Eichner seeks.