Poverty, inequality, and class in the structural constitutional law course.

• Author: Loffredo, Stephen

I. INTRODUCTION

Poverty, economic inequality, class, and distributional justice are issues embedded in our constitutional history. They have animated important developments in our constitutional understandings and hold deep, though frequently unacknowledged, significance for constitutional theory and doctrine. Historically, considerations of poverty, inequality, and class played a substantial role in the framing of the 1787 Constitution and the adoption of the Reconstruction Amendments following the Civil War. (1) During the Great Depression and the New Deal, they sparked the constitutional transformation that accompanied the radical re-conceptualization of national power and public responsibility for the material security of citizens; (2) a generation later, they figured prominently in the "due process revolution" of the 1960s and 1970s. (3) Conceptually, the continued existence of an impoverished class of citizens, politically marginalized, physically segregated, and socially isolated, stands in sharp tension with the core principle of equal citizenship and poses a direct challenge to basic assumptions underlying important areas of constitutional theory and doctrine. (4)

The relevance of poverty, economic inequality, and class to a constitutional law course dealing with individual rights ought to be readily apparent. Due process, equal protection, and the First Amendment--to take three prominent examples--provide fertile ground for exploring the significance of poverty to constitutional theory and doctrine. Less obvious, though, is how and whether these issues might be taught through a constitutional course on structure, separation of powers, and federalism. This Article explores some opportunities for integrating poverty-law issues into a structural constitutional law course and offers an argument for why such integration is desirable. Part II canvasses various understandings of the term "poverty law," briefly recounts the apparent disappearance of poverty-law issues from the law-school constitutional canon--as well as from the agenda of liberal constitutional theorists--and argues for renewed attention and re-integration. Part III discusses the overarching significance of poverty and economic inequality to constitutional theory and doctrine and recommends specific topics and cases from the standard structural constitutional law curriculum that offer opportunities for raising and developing poverty-law issues. The Article closes with a brief conclusion.

II.

As the Symposium (5) asks us to address the role of "poverty law" in the law school curriculum, it seems appropriate to reflect for a moment on the provenance and meaning of that term. Though efforts to address the distinct legal needs of poor people date back to the nineteenth century, (6) it was only in the 1960s that the phrase "poverty law" came into widespread use. The term now carries an array of overlapping meanings. In a fundamental sense, poverty law refers to the new form of legal practice that emerged during the "War on Poverty" of the 1960s, (7) a form of practice that transcended the traditional legal-aid model of providing individual representation in unconnected and usually private-law matters, and instead sought to enlist the law in a systemic effort to achieve social and structural changes that might alleviate poverty itself. (8) In a related sense, poverty law might be understood as a reference to the substantive areas in which lawyers for the poor have carried on this new kind of practice, areas as diverse as welfare law, family law, housing law, consumer law, employment law, and education law (9)--frequently intermixed with innovative theories of constitutional law and administrative law--and the distinctive approaches to those areas dictated by the needs and goals of economically distressed communities and individuals. (10) As a form of practice with transformative aspirations, poverty law might also be taken to mean one or more of the alternative models of lawyering pursued by some poverty lawyers that generally reject the hierarchies of the conventional lawyer-client relationship, favor work in alliance with social change movements, community organizations, and client groups, and envision a more facilitative and collaborative role for the attorney. (11) From a more academic standpoint, poverty law might be understood as encompassing the study of the underlying theories, structures, and evolution of social welfare programs and policies in the United States, an assessment of the extent to which these governmental interventions have functioned as vehicles of progress or as instruments of subordination and control, and an evaluation of the politics of poverty and welfare. (12) More generally, poverty law might include a critical analysis of how the law maintains institutions and practices that create and perpetuate severe inequalities of wealth and economic opportunity and facilitates the translation of those inequalities into a system of unequal political power, privilege, and citizenship. (13)

Regardless of how one defines poverty law, I suspect that most law students hear virtually nothing in their basic constitutional law classes about the subject; or about poor people, burgeoning economic inequality, plummeting mobility, the persistence of hunger and homelessness in the United States, class-based distribution of privilege and power, the political and social marginalization of people living in poverty, state responsibility regarding any of these phenomena, or the constitutional significance of a legal and political system that perpetuates this order of things. Not long ago, poverty law issues held a vibrant, if not central, place in many constitutional law classes, (14) and even elite law journals routinely featured articles examining the constitutional dimensions of wealth, poverty, and class. (15) Yet for all appearances these issues have faded from the constitutional law curriculum and from active scholarly review. It seems that each year the major constitutional law casebooks devote fewer pages and less attention to the constitutional status of poverty and economic inequality. (16)

At the same time, liberal constitutional theorists have largely abandoned the poor. The majority view among these liberal scholars now appears to be that poverty and class inequality--and their direct and collateral impacts--lie beyond the Constitution's cognizance or concern. (17) Many liberal scholars have not simply renounced constitutional welfare rights as being "off-the-table" and "off-the-wall" (and therefore not worthy of scholarly attention or inclusion in a progressive "constitution in exile"), (18) but level the potentially more sweeping claim that "'our constitutional tradition' is indifferent to 'economic inequality.'" (19) Others, while acknowledging the constitutional peril in permitting desperate poverty among citizens of a "deliberative democracy," nevertheless display a puzzling resistance to any suggestion that the courts ought to afford some meaningful protection to the economically afflicted, (20) but optimistically suggest that the political branches ought to be bound by constitutional norms that protect the poor. (21) Still others contribute to the trend through silence and neglect, that is, through institutional scholarship that tacitly denies the impact of poverty, inequality, and class on our political processes, our social relations, and on the possibility of maintaining even a pretense of equal citizenship or equality before the law. (22)

What accounts for these developments? Poverty and economic inequality--as social ills, as markers of political and democratic failure, and as human affliction--are issues as grave and pressing now as at any time in the last thirty years. The United States continues to allow thirty-seven million of its people to subsist below the federal poverty line--a standard at which even minimally decent living conditions are impossible to attain in most parts of the nation. (23) Ten years after federal "welfare reform" legislation ended the Aid to Families With Dependent Children ("AFDC") program, the number of children submerged in deep poverty (i.e. living below fifty percent of the poverty line) has substantially increased; (24) thirty-eight million people live in households without adequate food; 3.5 million go homeless. (25) Hard work and "playing by the rules" still do not guarantee relief from these conditions; fulltime employment at the minimum wage leaves a family of three well below the poverty line, low-wage workers are worse off now than a generation ago, and the decline in economic mobility keeps an ever greater portion of them chained to the bottom rungs of the economic ladder. (26) The United States is the wealthiest and most powerful nation in human history, yet we lead the industrialized world in poverty rate, in child impoverishment, in low birth weight, and in infant mortality. (27) Poverty in America has not faded as a national tragedy of the first order even if, in some quarters, attention to it has.

Nor has the conceptual link between poverty law and constitutional law weakened over the last decades. To the contrary, ever-widening disparities of wealth and income in the United States, (28) coupled with alarming declines in economic mobility and troubling signs of political and social ostracism of poor people, (29) have intensified the constitutional significance of poverty and class. The class structure in the United States is now more polarized and entrenched than at any time since the years preceding the Great Depression. (30) Economic inequality has grown to levels unprecedented in modern times, while the possibility of escaping the lowest economic strata continues to fall. (31) At the very least, it is no longer plausible to suggest, as the Supreme Court did thirty years ago, that poor people are too fluid and indistinct a group to be worthy of...