No scrutiny whatsoever: deconstitutionalization of poverty law, dual rules of law, & dialogic default.

• Author: Nice, Julie A.

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.

1. 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"...