The disparate treatment of race and class in constitutional jurisprudence

Law and Contemporary Problems

Volumn 72, Issue 4, 2009, Pages 109-130

  Barnes, Mario L ^a   Chemerinsky, Erwin ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 77954278998     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (219)

1. Among these are the constitutions of the former Soviet Union, Norway, Romania, Hungary, Peru, Bulgaria, Syria, and South Africa.
2. Cass Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees?, 56 SYRACUSE L. REV. 1, 2-4 (2005).
3. (listing these countries as providing some measure of protection for social and economic rights and locating the mandate for these types of protections in the Universal Declaration of Human Rights and the International Covenant on Social, Economic, and Cultural Rights).
4. See, e.g., Frank I. Michelman, The Supreme Court 1968 Term: Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969).
5. (providing an early articulation of the moral and political imperative for the recognition of constitutional welfare rights).
6. See Frank I. Michelman, Socioeconomic Rights in Constitutional Law: Explaining America Away, 6 INT'L J. OF CONST. L. 663 (2008).
7. [hereinafter Michelman, Socioeconomic Rights].
8. Frank I. Michelman, Welfare Rights in a Constitutional Democracy, 1979 WASH. U. L.Q. 659.
9. [hereinafter Michelman, Welfare Rights].
10. Erwin Chemerinsky, Making the Case for Minimum Entitlements, 44 MERCER L. REV. 525 (1993).
11. Cf. Robert Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 WASH. U. L.Q. 695.
12. Goodwin Liu, Rethinking Constitutional Welfare Rights, 61 STAN. L. REV. 203 (2008).
13. (reappraising Michelman's work and finding "his effort to ground the adjudication of welfare rights in a foundational moral theory ultimately confronts intractable problems of democratic legitimacy").
14. The creation of this type of constitutional obligation would violate the "negative liberty"principle, which suggests that the U.S. Constitution merely "creates and protects spheres of noninterference" state action.
15. See also SOTIRIOS A. BARBER, WELFARE & THE CONSTITUTION 5 (2003).
16. (discussing the negative-liberties model and asserting that the Constitution "guarantees exemptions from governmental action, not rights to governmental benefits. It imposes no unconditional duty to provide, and therefore it guarantees no right to any substantive benefit beyond access to the system of interest representation.") (emphasis in original) (footnote omitted).
17. David Abraham, Liberty Without Equality: The Property-Rights Connection in a "Negative Citizenship", 21 L. & SOC. INQUIRY 1, 38-44 (1996).
18. (discussing, apropos to this essay, how the commitment to negative liberty limits constitutional protection of social inequalities).
19. Robin L. West, Constitutional Scepticism, 72 B.U.L. REV. 765, 777-78 (1992).
20. (discussing the concept of negative liberty and locating its origin in the work of Isaiah Berlin).
21. See infra III.
22. See infra text accompanying notes 8-12.
23. See, e.g., Peter B. Edelman, The Next Century of Our Constitution: Rethinking Our Duty to the Poor, 39 HASTINGS L.J. 1, 5 (1987).
24. (theorizing that constitutional protection of the poor could be advanced either as a function of substantive due process or equal protection under the Constitution).
25. (arguing that social-justice advocates maintain that the Equal Protection Clause requires protection "against economic hazard" persons suffering a deprivation of "just wants"). The language of Section 1 guarantees equal protection of the laws; that life, liberty, and property shall not be deprived without due process; and that states shall not make laws that abridge the privileges or immunities of citizenship. See U.S. CONST. amend. XIV, § 1. Whereas the Fourteenth Amendment applies to the several states, the Fifth Amendment's due-process language captures actions of the federal government, encompassing both the due-process and the equal-protection mandate of the Fourteenth Amendment. See U.S. CONST. amend. V. The federal government is also bound by its own Privileges and Immunities Clause. See U.S. CONST. art. IV, §2.
26. As one scholar has recently and aptly noted, "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."
27. Julie A. Nice, No Scrutiny Whatsoever: Deconstitutionalization of Poverty Law, Dual Rules of Law, & Dialogic Default, 35 FORDHAM URB. L.J. 629, 629 (2008). The Court's uneven and de-centered treatment of the concerns of the poor is discussed infra II.B, where we see disparate results across the cases. Compare, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978) (invalidating on equal-protection grounds a state law that conditioned marriage on an applicant's proof of compliance with child support obligations), and Boddie v. Connecticut, 401 U.S. 371 (1971) (invalidating on due-process grounds a state denial of dissolution of marriage based upon inability to pay court fees and costs), with Lindsey v. Normet, 405 U.S. 56 (1972) (finding no dueprocess violation where rental payments were not suspended during the litigation of alleged wrongdoings of a landlord), and Dandridge v. Williams, 397 U.S. 471 (1970) (rejecting an equalprotection challenge to a state statute that capped benefits to recipients of Aid to Families with Dependent Children regardless of family size)
28. The Court long ago decided that federal economic regulations challenged under the Fifth and Fourteenth Amendments would receive only rational-basis review.
29. See, e.g., West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (upholding a state minimum-wage law for women). Additionally, rather than find freedom from indigence a fundamental right, the Court has considered poverty only as a classification affecting the exercise of rights protected under the Fourteenth Amendment. See infra notes 28-32
30. see also Harris v. McRae, 448 U.S. 297, 318 (1980) ("[G]overnment [does not have] an affirmative constitutional obligation to ensure that all persons have the financial resources to obtain contraceptives or send their children to private schools.... Nothing in the Due Process Clause supports such an extraordinary result."). For a claim that freedom from poverty should be protected as a fundamental right, see Edelman, supra note 7
31. Marc Fleurbaey, Poverty as a Form of Oppression, in FREEDOM FROM POVERTY AS A HUMAN RIGHT: WHO OWES WHAT TO THE VERY POOR? 133-34 (Thomas Pagge ed., 2007).
32. Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 YALE L.J. 1245, 1254 (1965) (arguing that the liberty interest protected by the Fifth and Fourteenth Amendments should at least cover "personal and family affairs" that the constitutionally protected privacy interest should be expanded to include matters related to the rise of the welfare state)
33. The Procedural Due Process Clause analysis for cases involving government benefits is discussed in II.B, below.
34. E.g., Rodriguez v. San Antonio Indep. Sch. Dist., 337 F. Supp. 280 (W.D. Tex. 1971) discussed in II.A, below. As discussed at length in II.A, socioeconomic class receives only rational-basis review, which typically results in the challenged government action being deemed constitutionally sound.
35. See, e.g., Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 457-58 (1988) ("Unless a statute provokes 'strict judicial scrutiny' because it interferes with a 'fundamental right' or discriminates against a 'suspect class,' it will ordinarily survive an equal-protection attack so long as the challenged classification is rationally related to a legitimate governmental purpose."). The Court, however, has on occasion struck down statutes negatively affecting the interests of the poor, even where only rational-basis review was afforded
36. See U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) (finding classification within the 1964 Food Stamp Act that excluded households including persons not related to family members from the food stamp program not rationally related to the purposes of the statute)
37. The same was true for one case in which the Court applied the Privileges or Immunities Clause. See infra notes 36-39.
38. See infra II.A-II.C.
39. Griffin v. Illinois, 351 U.S. 12, 23 (1956) (Frankfurter, J., concurring) (quoting Anatole France in JOHN COURNOS, A MODERN PLUTARCH 35 (1928))
40. As discussed in III below, the use of suspect classifications related to race, national origin, and alienage (at times) triggers the application of strict scrutiny. Classifications based upon gender receive intermediate scrutiny. See Craig v. Boren, 429 U.S. 190 (1976).
41. Lindsey, 405 U.S. at 74 (White, J.).
42. For example, the Court has declared that "the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of th[e] Court." Dandridge, 397 U.S. at 487 (Stewart, J.)
43. See McCleskey v. Kemp, 481 U.S. 279 (1987).
44. Washington v. Davis, 426 U.S. 229 (1976).
45. In at least one particular context-immigration-the Court has acknowledged that the government may intentionally use poverty or a likelihood of becoming poor as basis to deny entry into the country. In Graham v. Richardson, 403 U.S. 365, 377 (1971)
46. the Court noted that, pursuant to its immigration and naturalization power, Congress has provided that "[a]liens who are paupers, professional beggars, or vagrants" aliens who "are likely at any time to become public charges" be excluded from admission into the United States, 8 U.S.C. §§ 1182(a)(8), (a)(15), and that any alien lawfully admitted shall be deported who "has within five years after entry become a public charge from causes not affirmatively shown to have arisen after entry. "U.S.C. § 1251(a)(8) (current version at 8 U.S.C. § 1227).
47. 411 U.S. 1 (1973) (refusing to examine the Texas property-tax-based system of funding education under strict scrutiny since there is no fundamental right to education in the Constitution and since the system did not systematically discriminate against all poor people in Texas).
48. Id. at 19 (Powell, J.).
49. ("[A]ppellees have made no effort to demonstrate that [the tax scheme] operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts.").
50. Id. at 23, 25.
51. Specifically, the Court opined that "[t]he system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.".
52. See infra III.
53. See infra notes 28-32. Although, some scholars have claimed that the Court has negatively treated claims pertaining to the ability of the poor to exercise fundamental rights. See, e.g., Nice, supra note 8, at 651 ("[T]he Court has departed from its normal use of heightened scrutiny for alleged infringements of established constitutional rights when those affected are poor.").
54. See, e.g., Bullock v. Carter, 405 U.S. 134 (1972) (holding Texas's primary election system that conditioned candidate participation in the primary election upon ability to pay a filing fee violated equal protection).
55. See, e.g., Douglas v. California, 372 U.S. 353 (1963) (establishing an indigent defendant's right to court-appointed counsel on direct appeal).
56. Griffin v. Illinois, 351 U.S. 12 (1956) (finding an equalprotection violation where indigent prisoners were denied cost-free access to trial transcripts necessary to facilitate appellate review).
57. These cases usually involve two protected rights: the right of access to the courts generally, and the right of access to the courts for the purpose of protecting another fundamental right.
58. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102 (1996) (applying strict scrutiny when a state denied a mother the right to appeal the termination of her fundamentally protected parental rights based upon her inability to pay record-preparation fees).
59. Boddie, 401 U.S. at 371.
60. See Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 (1966) ("[A] State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes affluence of the voter or payment of any fee an electoral standard.").
61. See Zablocki, 434 U.S. at 374.
62. See, e.g., Washington v. Harper, 494 U.S. 210 (1990) (implicating the right to refuse medical treatment).
63. Wisconsin v. Yoder, 406 U.S. 205 (1972) (implicating the right to parental decisionmaking).
64. Shapiro v. Thompson, 394 U.S. 618 (1969) (implicating the right to travel).
65. Skinner v. Oklahoma, 316 U.S. 535 (1942) (implicating the right to procreate).
66. The preceding list is not exhaustive. As a general matter, the incorporation doctrine holds that most of the guarantees of the Bill of Rights are applied to the states through the Fourteenth Amendment.
67. See Duncan v. Louisiana, 391 U.S. 145, 148 (1968).
68. ("[M]any of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment. That clause now protects the right to compensation for property taken by the State; the rights of speech, press, and religion covered by the First Amendment; the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; and the Sixth Amendment rights to counsel, to a speedy and public trial, to confrontation of opposing witnesses, and to compulsory process for obtaining witnesses.") (internal footnotes omitted).
69. see also Jerold H. Israel, Selective Incorporation: Revisited, 71 GEO. L.J. 253 (1982).
70. (providing a thorough examination of selective incorporation and its manifestation in Supreme Court jurisprudence). Additionally, due process may be used in conjunction with the Ninth Amendment to protect emerging fundamental rights that are not explicitly located within the Constitution's text.
71. See, e.g., Griswold v. Connecticut, 381 U.S. 484 (1965) (finding privacy in marital relations to be a fundamental right "retained by the people" the language of the Ninth Amendment and protected from infringement through the Fourteenth Amendment).
72. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992).
73. (reaffirming the holding of Roe v. Wade, which recognized the right of a woman to choose to have an abortion before fetal viability without unreasonable interferences by the state) ("Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.") (citation omitted). The effect of these rights being protected, however, is not that the government is completely prohibited from impinging upon the right, only that strict scrutiny applies to review the impingement.
74. See Pennsylvania v. Finley, 481 U.S. 551 (1987) (holding that a prisoner had no right to courtappointed counsel in a post-conviction relief proceeding).
75. Ortwein v. Schwab, 410 U.S. 656 (1973) (finding that the state was not required to waive filing fees for the judicial review of adverse welfare benefits determinations).
76. United States v. Kras, 409 U.S. 434 (1973).
77. (holding that there is no common-law or statutory right to proceed in bankruptcy without payment of a filing fee and distinguishing Boddie, discussed supra note 8, as involving access to court where the court was the only means to resolve an issue related to a fundamental right).
78. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 30 (1972).
79. (acknowledging the lower court's finding of "'the grave significance' of education,"commenting, "[b]ut the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause"). After determining that a right to an education was neither explicitly nor implicitly protected by the Constitution, the Court reiterated, "[T]he undisputed importance of education will not, alone, cause this Court to depart from the usual standard of reviewing a State's social and economic legislation.". at 33.
80. See Zablocki, 434 U.S. at 407-11 (Rehnquist, J., dissenting).
81. Saenz v. Roe, 526 U.S. 489 (1999).
82. Prior to Saenz, the Privileges or Immunities Clause had been largely dormant within constitutional jurisprudence since 1935.
83. See Colgate v. Harvey, 296 U.S. 404 (1935).
84. Saenz, 526 U.S. at 489.
85. See id., 526 U.S. at 502-03.
86. see also Edwards v. California, 314 U.S. 160 (1941) (deeming the right to travel fundamental).
87. Case law suggests that similar claims can be raised using an equal-protection challenge alleging impingement upon the fundamental right to travel.
88. See Graham v. Richardson, 403 U.S. 365 (1971).
89. (overturning a statute that denied benefits to resident aliens by creating different durational residency requirements based upon their alien status and holding that such a regulation infringed upon one's right to travel between states).
90. Shapiro v. Thompson, 394 U.S. 618 (1969) (invalidating state residency requirements for the eligibility of welfare benefits as infringing upon the right of interstate travel).
91. See Maher v. Roe, 432 U.S. 464, 479 (1977).
92. ("Our cases uniformly have accorded the States wider latitude in choosing among competing demands for limited public funds.") (footnote omitted).
93. Dandridge v. Williams, 397 U.S. 471, 487 (1970) ("[T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.").
94. Michelman, Socioeconomic Rights (discussing judicial underenforcement of constitutional norms, Michelman posits that "[a]ll of these problematic institutional ramifications-inherent contestability of standards, strain on interbranch relations, excessive judicial engineering-are likely to be salient when a claimant seeks judicial remedies for a state's alleged failure to provide assistance or protection that a norm... requires the state to provide.").
95. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (requiring the provision of procedural due process prior to the termination of welfare benefits once such benefits have been initiated).
96. See Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964).
97. Harris v. McRae, 448 U.S. 297, 316 (1980).
98. Rust v. Sullivan, 500 U.S. 173 (1991).
99. Poelker v. Doe, 432 U.S. 519 (1977).
100. Maher, 432 U.S. at 464.
101. See Maher, 432 U.S. at 482-83 (Brennan, Marshall, & Blackmun, JJ., dissenting) (claiming that the denial of Medicaid benefits condemned impoverished pregnant women to carry babies to term).
102. Beal v. Doe, 432 U.S. 438, 454-55 (1977) (Marshall, J., dissenting) (asserting that benefits programs that encouraged women to carry pregnancies to term, but that would not fund abortions both imposed a viewpoint that could not be constitutionally enforced and would have the practical effect of preventing all poor women from obtaining safe, legal abortions).
103. ("[W]hat about life itself, health and vigor, presentable attire, or shelter not only from the elements but from the physical and psychological onslaughts of social debilitation? Are not these interests universal, rock-bottom prerequisites of effective participation in democratic representation... ?").
104. (alleging that the government is complicit in economic arrangements that have resulted in the unequal distribution of income).
105. (arguing that constitutional protection is needed for the poor because their lack of resources places them at a political disadvantage vis-à-vis majoritarian institutions).
106. See David S. Schwartz, The Case of the Vanishing Protected Class: Reflections on Reverse Discrimination, Affirmative Action, and Racial Balancing, 2000 WIS. L. REV. 657, 657.
107. ("The courts used to talk about the idea of a 'protected class,' people who were historically disadvantaged in a caste system with white men on the top."); Edelman, supra note 7, at 43 (claiming the government owes a duty to all those who have been formerly oppressed to ensure their full participation in society).
108. Here "caste" the idea of an inherited system of social stratification. According to Akhil Amar, the Thirteenth Amendment served as proof that "[w]e the people of the United States will not allow a degraded caste of people to exist in our society.".
109. Akhil Reed Amar, Forty Acres and a Mule: A Republican Theory of Minimal Entitlements, 13 HARV. J.L. & PUB. POL'Y 37, 39 (1990).
110. (discussing this vision of the Thirteenth Amendment and further suggesting that it provided a right to minimum sustenance and shelter).
111. Donald P. Judges, Bayonets for the Wounded: Constitutional Paradigms and Disadvantaged Neighborhoods, 19 HASTINGS CONST. L.Q. 599, 665-77 (1992).
112. (advocating that the Civil War Amendments establish the constitutional illegitimacy of caste, at least in the realm of education).
113. See also Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 469 (1988) (Marshall J., dissenting) ("The intent of the Fourteenth Amendment was to abolish caste legislation.").
114. (citing Plyler v. Doe, 457 U.S. 202, 213 (1982)).
115. (discussing the anticaste position of Justice Marshall and surmising, "[T]he 'nexus' of caste and class is such that the gap between formal and substantive rights, negative and positive liberties, begs to be bridged.") (emphasis in original).
116. ("[C]lassification of the 'poor' as such may, like classification of racial minorities as such, be popularly understood as a badge of inferiority.").
117. see also Inez Smith Reid, Law, Politics and the Homeless, 89 W. VA. L. REV. 115 (1986).
118. (advocating for higher scrutiny for homelessness due to the stigma associated with the category).
119. Francisco Valdes, Identity Maneuvers in Law and Society: Vignettes of a Euro-American Heteropatriarchy, 71 UMKC L. REV. 377 (2002).
120. In his well-known book, The Declining Significance of Race, William Julius Wilson surmised, for example, that "class has become more important than race in determining black life-chances in the modern industrial period.".
121. WILLIAM J. WILSON, THE DECLINING SIGNIFICANCE OF RACE 150 (1st ed. 1978).
122. The far more typical discussion of race and class has been about how the categories operate together to create negative life outcomes.
123. See Martha R. Mahoney, Class and Status in American Law: Race, Interest and the Anti-Transformation Cases, 76 S. CAL. L. REV. 799 (2003).
124. (describing the complex interrelation of race and class interests in the workplace).
125. john a. powell, The Race and Class Nexus: An Intersectional Perspective, 25 LAW & INEQ. 355, 356-58 (2007).
126. (criticizing as facile the claim that race and class are analytically separable).
127. See also EMMA COLEMAN JORDAN & ANGELA P. HARRIS, ECONOMIC JUSTICE: RACE, GENDER IDENTITY AND ECONOMICS 452-55, 848-59 (2005).
128. (discussing how race, gender, culture and economics are intertwined in historical and contemporary contexts).
129. Beverly Moran & Stephanie M. Wildman, Race and Wealth Disparity: The Role of Law and the Legal System, 34 FORDHAM URB. L.J. 1219, 1219 (2007).
130. (discussing the book RACE AND WEALTH DISPARITIES: A MULTIDISCIPLINARY DISCOURSE (Beverly Moran ed., 2007).
131. and claiming that "many authors" in the collection, "assume that law plays some role in the creation and maintenance of wealth disparities based upon race"). Moran and Wildman themselves claim that "[t]he disparate, distributional result that ties race and wealth has been supported throughout American history by government programs.". at 1223.
132. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274 (1986).
133. Palmore v. Sidoti, 466 U.S. 429, 432-33 (1984).
134. Wygant, 476 U.S. at 280 n.6.
135. Palmore, 466 U.S. at 432-33 ("[Racial] classifications are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be 'necessary... to the accomplishment' of their legitimate purpose.").
136. (quoting McLaughlin v. Florida, 379 U.S. 184, 196 (1964)).
137. see also Loving v. Virginia, 388 U.S. 1, 11 (1967) ("At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the 'most rigid scrutiny,' and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.").
138. (quoting Korematsu v. United States, 323 U.S. 214, 216 (1944)).
139. 323 U.S. 214 (1944).
140. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (holding federal affirmative-action programs are subject to strict scrutiny).
141. Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (finding that state and local affirmative-action programs must meet strict scrutiny).
142. 543 U.S. 499 (2005).
143. Slaughter-House Cases, 83 U.S. 36, 81 (1872). If followed literally, of course, this, would limit strict scrutiny under equal protection solely to race discrimination, but the Court has rejected that approach since the 1970s, when it expanded heightened scrutiny to encompass discrimination based on gender, alienage, and legitimacy. See supra note 15.
144. Chief Justice Warren Burger wrote, "A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race. Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns.".
145. Palmore, 466 U.S. at 432 (1984) (internal citations removed).
146. 304 U.S. 144, 152 n.4 (1938).
147. See, e.g., Lockhart v. McCree, 476 U.S. 162, 175 (1986) (indicating that removal of a juror based upon immutable characteristics such as race, gender, or national origin would violate the requirement that a jury constitute a fair cross-section of the community).
148. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 360-61 (1978) (Blackmun, J., concurring and dissenting) ("While a classification is not per se invalid because it divides classes on the basis of an immutable characteristic, it is nevertheless true that such divisions are contrary to our deep belief that legal burdens should bear some relationship to individual responsibility or wrongdoing.") (internal citations and quotation marks removed).
149. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (comparing the immutable nature of gender to that of race and national origin).
150. See generally PAUL KRUGMAN, THE CONSCIENCE OF A LIBERAL (2007) (looking at politics of inequality from pre-New Deal America to modern times).
151. ("For if money is power, then a class deliberately defined so as to include everyone who has less wealth or income than any person outside it may certainly be deemed... to be especially susceptible to abuse by majoritarian process.").
152. Stephen Loffredo, Poverty, Democracy and Constitutional Law, 141 U. PA. L. REV. 1277, 1281-82 (1993).
153. ("While the convergence of political and economic power marginalizes the poor from democratic processes, the myth of political equality simultaneously serves as a justification for denying them heightened protection that constitutional doctrine has elsewhere accorded politically powerless minorities and other suspect classes.").
154. FRANK STRICKER, WHY AMERICA LOST THE WAR ON POVERTY-AND HOW TO WIN IT 117-234 (2007) (analyzing every administration between Nixon and George W. Bush and discussing the persistence of poverty and the lack of significant positive government programs to end poverty since the War on Poverty in the 1960s). The book also contains seventeen suggestions for a positive approach to ending poverty.
155. TOM HERTZ, CTR. FOR AM. PROGRESS, UNDERSTANDING MOBILITY IN AMERICA i-ii (2006), available at http://www.americanprogress.org/kf/hertz_mobility_analysis.pdf. 70.
156. Maher v. Roe, 432 U.S. 464, 471 (1977).
157. Graham v. Richardson, 403 U.S. 365, 371-72 (1971).
158. Craig v. Boren, 429 U.S. 190, 197 (1976) ("To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.").
159. Mathews v. Lucas, 427 U.S. 495, 505-07 (1976).
160. 351 U.S. 12 (1956).
161. 383 U.S. 663, 668 (1966) (internal citations removed).
162. ("Throughout the 1960s and 1970s, courts and commentators debated whether poverty should be considered a suspect classification for purposes of equal protection analysis, and whether a right to subsistence inheres in the Constitution.... But by the early 1970s, the Burger Court, in a swift series of cases affecting welfare, housing, and education, essentially announced a principle of judicial noninterference with political determinations regarding the poor.") (citation omitted).
163. Compare Washington v. Davis, 426 U.S. 229 (1976) (holding that, when the law is facially neutral, proof of a discriminatory intent or purpose was necessary for a finding of government discrimination in violation of the Equal Protection Clause).
164. Arlington Heights v. Metro. Housing Devel. Corp., 429 U.S. 252 (1977) (holding, in part, that a government decision to deny a rezoning request was not unconstitutional solely because it resulted in a racially disproportionate impact, but that proof of racially discriminatory intent or purpose was required to show an equal protection violation).
165. with Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (striking down a city's faculty diversity program which retained black teachers with less seniority than white teachers who were laid off).
166. Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
167. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
168. This connection between desired outcome and the selected level of judicial scrutiny is borne out in the Burger Court's application of rational-basis review to the complaints of the poor. See Loffredo ("The Burger Court declined even to address the idea that poor people might comprise a politically powerless group undemocratically denied a fair share of influence in the processes of public decisionmaking. Instead the Court summarily consigned the constitutional claims of the poor to the feeblest form of rationality review. Under this regime, the Court mechanically attaches the usual presumption of constitutionality to classifications that affect the poor, without inquiring into the democratic legitimacy of the underlying process.").
169. Groups such as the NAACP and the NAACP Legal Defense Fund (racial-minority special-interest groups), the National Organization for Women and the Feminist Majority Foundation, Lambda Legal Defense (sexual orientation special interest group), and Mexican American Legal Defense and Education Fund (MALDEF) immediately come to mind.
170. For an excellent explanation for why class-based affirmative action cannot substitute for racebased remedies.
171. see Deborah C. Malamud, Assessing Class-Based Affirmative Action, 47 J. LEGAL EDUC. 452 (1997).
172. Deborah C. Malamud, Class Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847 (1996).
173. Richard Kahlenberg, an opponent of this philosophy, describes the beliefs that class-based remedies will undercut tools to combat race-based discrimination and that class should supplement, rather than replace, race-based remedies, as myths.
174. RICHARD D. KAHLENBERG, Sixth Myths About Class-Based Preferences, in THE REMEDY: CLASS, RACE, AND AFFIRMATIVE ACTION 153-65 (1996).
175. One reason that class analysis can be provocative to those who favor race-based remedy is the long-standing criticism that race-based affirmative action programs disproportionately favor wealthier minorities. This was a chief complaint of William Julius Wilson's book on the underclass.
176. WILLIAM J. WILSON, THE TRULY DISADVANTAGED 110 (1987).
177. See also Jonathan Goldman, Fresh Start: Redefining Affirmative Action to Include Socioeconomic Class, in RACE VERSUS CLASS: THE NEW AFFIRMATIVE ACTION DEBATE 187-91 (Carol M. Swain ed., 1996).
178. Cf. GERTRUDE EZORSKY, RACISM AND JUSTICE: THE CASE FOR AFFIRMATIVE ACTION 63-72 (1991) (challenging the claim that affirmative action has not helped the truly disadvantaged).
179. See, e.g., Washington, 426 U.S. at 229.
180. (examining Washington v. Davis and Arlington Heights v. Metropolitan Housing Development Corp. discussed supra note 79, but finding the discriminatory intent standard for facially neutral statutes proof standard unworkable for adjudicating the problems of the extremely poor).
181. (discussing the 1996 Act and asserting, "States were required to push recipients off welfare and into the workforce regardless of training or mental health or child-care issues,"that "[s]oon it appeared that the goal of ejecting people from the rolls was a huge success. The national numbers fell by half and in Wisconsin by 90%.").
182. See, e.g., Stephen Dinan, McCain Accuses Obama of Class Warfare, WASH. TIMES, Oct. 16, 2008, at A01.
183. This concept of intersectionality has been thoroughly articulated and explored with regard to race and gender in the germinal work of Kimberlé Crenshaw.
184. See, e.g., Kimberlé W. Crenshaw, Mapping the Margins: Intersectionality, Identity Politics and Violence Against Women of Color, 43 STAN. L. REV. 1241 (1991).
185. Professor Elizabeth Iglesias has spoken specifically to the challenges of managing one's individual sense of self when inhabiting multiple, largely socially constructed, identity categories: For women of color, whose individual self-consciousness is developed at the intersection of multiple practices of oppression and resistance, the difference between socially constructed group identity and individual self-consciousness is palpable and often painfully debilitating. Both the practices through which groups are constructed externally (namely, the racist, sexist and capitalist practices of dominant social actors) and maintained internally (namely, the practices through which internal elites suppress differences and maintain group cohesiveness around their self-privileging agendas) fragment our consciousness of our individual reality and assault our ability to act self-consciously in the world.
186. Elizabeth M. Iglesias, Structures of Subordination: Women of Color at the Intersection of Title VII and the NLRA. Not!, 28 HARV. C.R.-C.L.L. REV. 395, 397-98 n.14 (1993) (emphasis in original).
187. See Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 CONN. L. REV. 561, 638 (1997).
188. Elizabeth M. Iglesias & Francisco Valdes, Expanding Directions, Exploding Parameters: Culture and Nation in LatCrit Coalitional Imagination, 5 MICH. J. RACE & L. 787, 798 (2000).
189. (noting that multidimensionality is not merely a recitation of the multiple diversities constituting racial and ethnic categories, but, "a profound and farreaching recognition that the particularities of religion, geography, ability, class, sexuality, and other identity fault lines run through, and help to configure and to interconnect, all 'racial' or 'ethnic' communities").
190. At times, it is not clear whether the effects of socioeconomic class and race (and other identity factors) are considered together or separately when legal contestations are examined. For example, within the criminal law, many have written of the combined effects of one's race and class on outcomes.
191. See, e.g., DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM (1999).
192. Marjorie S. Zatz & Nancy Rodriguez, Conceptualizing Race and Ethnicity in Studies of Crime and Justice, in THE MANY COLORS OF CRIME: THE INEQUALITIES OF RACE, ETHNICITY, AND CRIME IN AMERICA 41-42 (2006) (Ruth D. Peterson et al. eds., 2006).
193. But see MICHAEL J. LYNCH, BIG PRISON, BIG DREAMS: CRIME AND THE FAILURE OF AMERICA'S PENAL SYSTEM 195-96 (2007).
194. (using a multiple regression to separately look at the connection between imprisonment rates and racial composition and imprisonment rates and class, and noting statistically significant positive correlations for race and class). Outside of the criminal context, others have discussed identity factors, including class, as separate bases for marginalization in legal encounters. For example, in the pathbreaking book, The Commonplace of Law, authors Ewick and Silbey noted that persons socially marginalized via membership in certain groups-including those marked by race, ethnicity, gender, and poverty (one's status as poor or a member of the working poor)-within their myriad legal encounters often evinced resistance or "against the law" in response to perceived disadvantage.
195. PATRICIA EWICK & SUSAN S. SILBEY, THE COMMONPLACE OF LAW: STORIES FROM EVERYDAY LIFE 234-38 (1998).
196. See also JOHN GILLIOM, OVERSEERS OF THE POOR: SURVEILLANCE, RESISTANCE, AND THE LIMITS OF PRIVACY (2001) (discussing the disadvantages poor Appalachian women face in their encounters with welfare agencies that maintain deeply intrusive policies and practices).
197. For example, a group of researchers led by Professor David Baldus famously identified that the races of the defendant and the victims significantly affected who received the death penalty in Georgia.
198. See DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 140-88 (1990).
199. Defendants were 4.3 times as likely to receive the death penalty when the victim was white rather than black. Id. at 154. In a later study of the death penalty in Nebraska, Professor Baldus found that socioeconomic status was also important to punishment, in that the death-sentencing rate was 5.6 times greater in cases with high socioeconomic-status victims than it was for low socioeconomic-status victims.
200. David C. Baldus et al., Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999), 81 NEB. L. REV. 486, 607-09 (2002).
201. Baldus found the socioeconomic status of the defendant had no effect on outcomes, id. at 608, but certainly others have claimed that poor capital defendants, like poor defendants generally, are significantly disadvantaged by their lack of resources.
202. see Bryan Stevenson, Close to Death: Reflections on Race and Capital Punishment, in DEBATING THE DEATH PENALTY: SHOULD AMERICA HAVE CAPITAL PUNISHMENT? 76, 94-95 (Hugo Adam Bedau & Paul G. Cassel eds., 2005) (describing the inadequate funding of services for capital defendants as a national problem).
203. ("Poverty and economic disadvantage among people of color increase the risk of wrongful or unfair treatment in the criminal justice system and compound the problem of race in the death penalty cases."). Others have claimed that federal policies such as those that provide greater sentences for crack versus powder-cocaine offenses disproportionately affect inner-city African Americans and are therefore discriminatory.
204. See, e.g., Paul Butler, (Color) Blind Faith: The Tragedy of Race, Crime, and the Law, 111 HARV. L. REV. 1270, 1276-80 (1998) (reviewing RANDALL KENNEDY, RACE CRIME AND THE LAW (1997)) (characterizing the sentencing scheme under the federal Anti-Drug Abuse Act as racially discriminatory).
205. Ian Ayres & Peter Siegelman, Gender and Race Discrimination in Retail Car Negotiations, in IAN AYRES, PERVASIVE PREJUDICE?: UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION 19-44 (2003).
206. (presenting empirical data indicating that African Americans, especially black women, were given inferior car-financing products for reasons unrelated to their creditworthiness). Essentially, the privilege or penalty conferred through socioeconomic status is contingent upon the other identity categories one inhabits.
207. Vikas Bajaj & Ford Fessenden, What's Behind the Race Gap? N.Y. TIMES, Nov. 4, 2007, Weekend, at 16.
208. One particular example involved a black neighborhood in which the median income was $49,000 and a nearby white neighborhood where the median income was $51,000. Id. In the black neighborhood, seventy percent of the loans carried a high interest rate while only seventeen percent of those in the white neighborhood did. High interest rates were defined as three percentage points greater than the yield on a comparable treasury note.
209. A recent report by the Center for American Progress provides the following confirming statistics: In 2006 the median family income of whites ($52,423) was 1.4 times greater than that of Hispanics ($37,781) and 1.7 times greater than that of Blacks ($32,132); for 2006, 8.2% of whites were in poverty, while 20.6% of Hispanics and 24.2% of Blacks, respectively, were within the category. The report further details the negative comparative statistics for Blacks and Hispanics versus whites in the areas of health-care coverage, retirement savings, employment, and home ownership.
210. AMANDA LOGAN & TIM WESTRICH, CTR. FOR AM. PROGRESS, THE STATE OF MINORITIES: HOW ARE MINORITIES FARING IN THE ECONOMY 1, 3 (2008), available at http://www.americanprogress.org/issues/2008/04/minorities_economy.html.
211. The overlap of race and class creates a situation where poverty may extensively operate as the plausible "neutral ground" explain away a disparate racial impact resulting from government decisions and actions. See Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 275 (1979). Rather than this standard, which flows from the Washington v. Davis requirement of purposeful discrimination, the alternative would be a rule that presumed where the government took actions disproportionately affecting minorities, that they intended the likely consequences of their actions.
212. See Washington, 426 U.S. at 253 (J. Stevens, concurring) ("For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation.").
213. Katheryn K. Russell, Affirmative (Re)Action: Anything But Race, 45 AM. U. L. REV. 803, 808 (1996) (analyzing a proposed hypothetical and demonstrating the fallacy of isolating race from socioeconomic status).
214. A perceived benefit of this isolation would be the use of class-based affirmativeaction programs as a constitutionally viable method of extending opportunities to people of color.
215. See, e.g., Richard D. Kahlenberg, Getting Beyond Racial Preferences: The Class Based Compromise, 45 AM. U. L. REV. 721 (1996).in particular, the articles by Deborah Malamud analyzing the limits of class-based affirmative action.
216. This concept of using proxies for race that are not themselves subject to heightened scrutiny is well-developed in the employment discrimination literature.
217. See Angela Onwuachi-Willig & Mario L. Barnes, By Any Other Name?: On Being "Regarded As", and Why Title VII Should Apply Even if Lakisha and Jamal are White, 2005 WIS. L. REV. 1283.
218. Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U.L. REV. 1134 (2004).
219. Disaggregating race from class then becomes a part of the phenomenon criticized by commentators such as Crenshaw, Hutchinson, and Iglesias & Valdes. See supra notes 89-90 (explaining that this disaggregation would force people to attempt to discern which separate facet of their identity served as the purported sole basis for oppression).