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Article Excerpt
INTRODUCTION
Poverty Law in the United States subsists within a constitutional framework that constructs a separate and unequal rule of law for poor people. Across constitutional doctrines, poor people suffer diminished protection, with their claims for liberty and equality formally receiving the least judicial consideration and functionally being routinely denied. As Justice Marshall succinctly put it, poor people receive "no scrutiny whatsoever." (1) This Article surveys some doctrinal causes and systemic effects of this exclusion of poor people from equal constitutional protection.
The classical focus of commentary regarding the intersection of Poverty Law and Constitutional Law relates to the lack of social welfare rights in the United States Constitution, (2) which causes courts to reject claims of social welfare rights. This Article does not re-visit that debate, but instead urges greater scholarly attention to more subtle and insidious denials of equal constitutional protection to poor people. This Article's initial claim is that Poverty Law has been deconstitutionalized, that is, the courts generally fail to enforce the Constitution's existing protections when applied to poor people. (3) A brief look at the Supreme Court's normal doctrinal analysis reveals how four major departures from these norms have deconstitutionalized Poverty Law.
First, the Supreme Court normally considers claims of discrimination according to an established doctrinal analysis for determining which level of judicial scrutiny should apply. When those affected are poor, however, the Court instead has created a unique categorical immunization from judicial scrutiny for "social or economic legislation."
Second, the Supreme Court normally considers whether heightened judicial scrutiny might be necessary because either the affected group is a "suspect class" or the trait defining the affected group is a "suspect classification." When those affected are poor, however, the Court has circumvented these questions, never directly or adequately determining whether poor people meet the criteria for a suspect class or whether poverty meets the criteria for a suspect classification.
Third, when cases reveal evidence of invidious governmental discrimination against other groups, the Supreme Court normally has been willing to invalidate such governmental action by applying its rationality review "with bite." When those affected are poor the Supreme Court instead has applied its rationality review without bite, that is, in a reflexive manner designed to uphold governmental regulation.
Fourth, when other groups or individuals claim infringements of various established fundamental rights, the Supreme Court normally applies some version of heightened judicial scrutiny. When those affected by the fundamental rights infringements are poor, the Court instead has reversed its normal level of scrutiny, ratcheting down from heightened scrutiny to rationality review and applying it in a reflexive manner to uphold the governmental regulation.
Over time, these forces of deconstitutionalization have constructed dual rules of constitutional law based on economic means. (4) On one hand is the rule of law that respects the dignity of the haves and protects rights that benefit them, thereby perpetuating their advantages. On the other hand is the rule of law that refuses to protect rights in a manner that might protect or benefit the have-nots. This second-class rule of law adds insult to injury by constantly monitoring and invading the lives of the have-nots--comprehensively scrutinizing and regulating both their work and family lives(5)--while simultaneously denying them the protection of legal rights to defend themselves within this regulatory regime.
Both deconstitutionalization and the resulting dual rules of constitutional law operate comprehensively to deny equal constitutional protection to poor people. The reason the Supreme Court has given for reflexively upholding governmental action is that judicial scrutiny is unnecessary precisely because the Justices presume any problems will be remedied within the political process. (6) Here is where the poverty paradox comes in. Not only may poor people not expect equal constitutional protection from the judiciary, they also lack the types of resources typically required for effective political mobilization to pursue protection from the political branches of government. While many impoverished individuals have put up a valiant fight not only for economic survival but also for greater political inclusion and protection, rarely have their extraordinary efforts proven sustainable, (7) as exemplified by the defeat of the short-lived War on Poverty and its welfare rights movement. (8)
Poor people are trapped: the courts reflexively deny their claims that the political branches have infringed upon their equality or liberty, and poor people otherwise lack the economic or political leverage to persuade the political branches to end such infringements. (9) As for the possibility of scholarly progress toward framing rights claims for poor people, several dominant views have led most research away from constitutional rights. The first view is the "hollow hope" critique of rights, that is, the assessment that "U.S. courts can almost never be effective producers of significant social reform." (10) The second view is the belief that a claim for constitutional protection for poor people is either futile or unintelligible within the logic of Supreme Court precedents. (11) The third view is acquiescence to the notion that the Supreme Court has held that poor people are not a suspect class or that poverty is not a suspect classification, presumably as a means to explain the patently clear pattern of constitutional losses experienced by poor people. (12) Moreover, although other rights movements on the ground have resisted these critiques by continuing to pursue constitutional litigation, (13) no comparable movement for constitutional rights persists for poor people. (14)
This lack of either viable constitutional or political claims, or serious scholarly frames, for rights of inclusion for poor people has resulted in what I term a dialogic default--a failure to contest economic injustice within constitutional and political discourse. (15) The immediate consequence of this dialogic default is the lack of traction toward establishing even the aspiration to greater constitutional protection for those most economically vulnerable. (16) This default is costly. (17) The evolution of constitutional law teaches the importance of rights claims in shaping constitutional interpretation, with history demonstrating the extension of the Constitution's protection to those previously excluded classes that persistently dared to claim rights. (18) As this Article recounts, recent scholarly research regarding both constitutional theory (19) and social movement mobilization (20) has underscored the rights movements' role in shaping constitutional interpretation. Because constitutional discourse is a crucial arena of struggle for questions of justice, a default in the constitutional dialogue signals a broader default in the political contest for economic justice. (21) In a more practical sense, both deconstitutionalization and the resulting dialogic default have left Poverty Law itself as a frontier for endless experimentation with the lives of poor people, at best, (22) or as an accomplice to their economic exploitation, at worst. (23)
Like the contradictions between the rhetoric of equality in the Declaration of Independence and the reality of oppression embedded in the original Constitution, as well as between the Fourteenth Amendment's promise of equal protection under the law and the Supreme Court's historic refusal to enforce it, this separate and unequal rule of law for poor people stands in stark defiance of the Constitution's commitment to equal protection under the law.
Part I of this Article broadly surveys the deconstitutionalization of Poverty Law, identifying four types of departures from normal constitutional doctrine for claims affecting poor people. The first departure is the categorical immunization of "social or economic legislation." The second departure is the circumvention of suspect class or classification analysis. The third departure is the application of rationality review in a reflexive manner to uphold governmental regulation. The fourth departure is the reversal of the normal level of judicial scrutiny for infringements of established fundamental rights, ratcheting down from heightened scrutiny to reflexive rationality review. Part II explores how this deconstitutionalization of Poverty Law has contributed to the construction and perpetuation of dual rules of law, one superior set of rules for the economic haves and an inferior set of rules for the economic have-nots. Part III then examines how both dialogic constitutional theory and social movement mobilization scholarship predict the resulting dialogic default: the stagnation caused by the absence of rights claims for poor people in constitutional and political discourse. Finally, Part IV considers the current opportunity for the mutually constitutive activities of claiming legal rights and mobilizing political support.
I. DECONSTITUTIONALIZATION OF POVERTY LAW
This section examines how the Supreme Court has deconstitutionalized Poverty Law. In short, the Court treats constitutional challenges to governmental actions affecting poor people as substantively non-justiciable. In other words, it treats existing constitutional protections, when applied to poor people, as effectively "exempt from judicial enforcement." (24) The Supreme Court has accomplished this deconstitutionalization of Poverty Law through four departures from established constitutional doctrine. These four departures include: (1) categorical immunization of "social or economic legislation"; (2) circumvention of normal suspect class or classification analysis; (3) application of rationality review in a reflexive manner to uphold governmental action; and (4) reversal of normal heightened scrutiny for infringements of established fundamental rights when those affected are poor. These four departures will be examined in turn.
A few preliminary points help to frame this section on deconstitutionalization. First, deconstitutionalization of Poverty Law is not necessitated by the absence of social welfare rights, as the Supreme Court long ago repudiated reliance on a specious distinction between rights and privileges. (25) Second, the Supreme Court has conceded that the reason for not applying heightened scrutiny is the fact that the disproportionate burdens carried by poor people are deeply embedded throughout our legal system. (26) This presents a tautology, of course, as the fact that violations of constitutional protections are widespread hardly can suffice as an answer to why the judiciary fails to redress them. Third, while some might argue that many laws burdening poor people apply equally to the rest of us, the Supreme Court has rejected the logic that equal application suffices to immunize the government from judicial scrutiny. (27) Finally, unless the Supreme Court means to imply that poor people are not included in constitutional protections of equality and liberty or that somehow it is not possible for the government to discriminate against poor people or infringe on their fundamental rights, constitutional questions that arise in the realm of Poverty Law should be as substantively justiciable as those affecting other groups defined by other traits.
A. Categorical Immunization of "Social or Economic Legislation"
The first method of deconstitutionalization is the Court's categorical immunization of social or economic legislation. The primary instrument of this deconstitutionalization is Dandridge v. Williams, (28) in which the Supreme Court broadly declared that only the most deferential form of rationality review would be applied to review governmental actions regarding the category of economics and social welfare.
Dandridge represents a significant departure from the Supreme Court's normal doctrinal analysis designed to assess the constitutionality of any governmental reliance on a classification that treats similarly situated people differently. Regardless of the type of regulation at issue, the Supreme Court normally reviews challenges to governmental discrimination by considering whether either the disadvantage of the affected class or the irrelevance of the trait makes the class or classification "suspect." (29) Dandridge mandated instead that allegations of discrimination regarding one particular type of regulatory field--economics and social welfare--would be treated differently than allegations of discrimination regarding other types of regulatory fields. (30) By limiting judicial review of this category to its most deferential rationality review, (31) the Court uniquely and categorically immunized the government's social or economic regulation from heightened scrutiny and its greater likelihood of judicial invalidation.
One need only examine the Court's application of its most deferential rationality review in Dandridge to understand how effectively it immunizes the government. Dandridge involved Maryland's rule of a maximum grant to families receiving welfare, thus disadvantaging larger families compared to smaller ones. (32) The Court found two legitimate state interests to be sufficient to justify the maximum grant. The first interest, encouraging employment, was accepted even though the Court conceded that Maryland's rule affected some large welfare families that did not include any employable person, as the plaintiffs did not, and that Maryland's rule failed to subject small welfare families to this employment incentive. (33) In other words, the Court accepted the sufficiency of a state regulation that was both over-inclusive and under-inclusive. Also, the Court approved a second state interest, avoiding discrimination between welfare families and working poor families. (34) It accepted this interest without citing evidence in the legislative record that would demonstrate Maryland's maximum grant was adopted in fact because of this concern, and without citing any analysis of the data that would show the amount of the maximum grant had any actual relationship to the amount received by workers earning the minimum wage. (35) Instead, as Justice Marshall noted in dissent, "the State virtually conceded that it set out to limit the total cost of the program along the path of least resistance." (36) Finally, the Court also invoked both federalism and separation of powers concerns, noting repeatedly that the federal courts have no power to impose their views of wise economic or social policy on the states. (37)
Perhaps Dandridge merely reflects the Supreme Court's commitment, established in the wake of Lochner's (38) demise, to allow the government to wield broad regulatory power over so-called social or economic legislation. Does this arc of history serve to rescue Dandridge by making it seem less of an aberration? A closer examination here suggests not. Consider two early decisions from the 1940s. The Supreme Court first used the phrase "social or economic legislation" in 1942 in upholding a state's taxation of estate wealth upon death. Justice Douglas reasoned for the majority: "It would violate the first principles of constitutional adjudication to strike down state legislation on the basis of our individual views or preferences as to policy, whether the state laws deal with taxes or other subjects of social or economic legislation." (39)
What might Justice Douglas have meant to include in this category of "social or economic legislation"? Justice Douglas's stalwart concurrence in a landmark Poverty Law case just the prior year sheds considerable light on his meaning. Justice Douglas joined the Court's invalidation of California's criminal prohibition against bringing an indigent person into the state. (40) He wrote separately to underscore his view that having different levels of constitutional protection depending on economic means would constitute a "caste system," which would clearly violate the Constitution. (41) It seems specifically unlikely, then, that Justice Douglas would have intended to allow unequal constitutional protection for poor people when he coined the "social or economic legislation" phrase in upholding a so-called "death tax" the following year. (42)
Between the New Deal and the early end of the War on Poverty, punctuated decisively by Dandridge in 1970, the Supreme Court invalidated several governmental regulations burdening poor people by taking into consideration the actualities of poverty (43) and holding that government cannot condition important benefits on one's ability to pay. (44) Comparing two case examples from this period sheds additional light on the categorical "social or economic" exception to normal judicial scrutiny.
One sleeper case decided in 1955, Williamson v. Lee Optical, (45) stands now as the prototype for the run-of-the-mill business regulation for which the Court insists on deference to legislative judgments. Justice Douglas, writing for a unanimous Court, applied rationality review quite deferentially to uphold Oklahoma's law prohibiting opticians from providing eyeglass lenses without a prescription from an opthalmologist or optometrist. He specified "the law need not be in every respect logically consistent with its aims to be constitutional." (46) Harkening back to the Lochner era, he chastised that the "day is gone" when the Court should strike down business regulations as unwise. (47)
It is telling that the very next year in Griffin v. Illinois, the Court did not invoke this clearly established form of deferential rationality review in considering the constitutionality of the cost barrier facing indigent defendants attempting to file criminal appeals. (48) The Court conceded that the Constitution did not require states to provide either appellate courts or criminal appellate review, so it declined to base its decision on a fundamental rights analysis. (49) A majority agreed, nonetheless, that once a state provides appellate review, denying such review on account of poverty would constitute invidious discrimination. (50) As Justice Black wrote in announcing the Court's judgment: "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (51) Thus, the deferential rationality review that Justice Douglas and the Court applied just the year before, to uphold regulations of opticians, was simply nowhere to be found in the Court's rebuke of discrimination based on poverty in Griffin.
Taken together, it becomes clear that Justice Douglas marked the category of "social or economic legislation" to defer to governmental regulation of those interests very well represented in the political process, such as those holding estate wealth and those practicing licensed professions, but he specifically refused to apply it elsewhere in a manner harmful to those most economically vulnerable. In nearly thirty years following Justice Douglas's first use of the "social or economic legislation" category, he never used it to uphold governmental discrimination based on poverty. Indeed, he sometimes used rationality review deferentially to uphold governmental regulation of wealth in such a manner that instead advanced the cause of economic justice. (52) In short, there seems to be no question that Justice Douglas, who originally invoked deferential rationality for "social or economic" legislation, did not include discrimination based on poverty within that category. (53) Therefore, linking the category of social or economic legislation with deference to governmental action designed primarily to reduce the costs of protecting those most economically vulnerable seems downright subversive, if not deeply ironic.
In several "outlier" decisions since Dandridge, the Supreme Court occasionally has invalidated governmental regulation...
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