The Disparate Treatment of Race and Class in Constitutional Jurisprudence

I INTRODUCTION Unlike the constitutions of some other countries, (1) the United States Constitution includes no express protection of socioeconomic rights. Nor has the U.S. Supreme Court either deemed such rights fundamental for purposes of review under the Constitution or found poverty to be a classification, like race, that deserves searching equal-protection analysis. Calls to reform the Court's shabby treatment of socioeconomic interests--interests that have been described as "constitutional welfare rights"--have been long-standing, having commanded at least forty years (2) of sustained scholarly debate? The conversation continues because, even as the plight of the poor worsens in this country, the role of socioeconomic rights in the debate presents thorny issues. Not only would greater recognition of constitutional welfare rights provide a potential basis to limit certain types of governmental class-based discrimination, such rights, if given full effect, might also be construed as forcing the provision of government benefits or assistance.' The necessary brevity of this essay prevents the in-depth exploration of the broadest variant of the welfare-fights debate: how to effectively structure a constitutionally recognized right to some form of basic subsistence. Justifications, however, can be provided for why discrimination based upon socioeconomic class needs greater constitutional protection and how a more-robust equal-protection analysis can serve as the means to achieve this goal? Toward this end, this essay first articulates just how lean the Court's jurisprudence has been in the area of socioeconomic class: part II initially summarizes the treatment of poverty under the various strands of Fourteenth Amendment jurisprudence, then provides a number of justifications for why socioeconomic class deserves a more-considered approach from the Court. Part III lays out how and explores why the Court's treatment of race as a classification has differed considerably from its treatment of socioeconomic class. Part IV concludes with our suggesting that the Court should abandon its present bifurcated jurisprudence on race and class as a first step toward acknowledging the need for consistent judicial treatment of classifications that operate as overlapping and reinforcing bases of discrimination and subordination. II THE IMPOVERISHED CONSTITUTIONAL TREATMENT OF SOCIOECONOMIC CLASS Compared to the U.S. Supreme Court's treatment of race (and other protected classifications), constitutional jurisprudence in the area of socioeconomic class has been somewhat improvised and largely impoverished. That is, wealth, as a classification, and the poor, as a group, have only rarely commanded the full breadth of the Court's attention. Even when poverty has been scrutinized, the Court has been largely unwilling to compel states and the federal government to ameliorate the difficulties their actions create for the poor. The reasons for this course of treatment are myriad? Its result, though, has been a patchwork jurisprudence articulating in a number of contexts the limited constitutional protection of class, focusing primarily on questions of wealth disparity or of poverty. Although socioeconomic rights are not guaranteed within the Constitution, it has been argued that the protections enunciated in Section 1 of the Fourteenth Amendment are germane to issues of class. (7) For a number of reasons, though, these protections have been only infrequently considered, and with marginal success, (8) to ensure constitutional protection of the poor--however one might seek to define the poor as a coherent group. First, class jurisprudence has not involved substantive-due-process analysis because there is currently no recognized fundamental right either to be free of poverty or to ensure some baseline quality of economic stability? Second, procedural-due-process claims have been relevant only to cases posing challenges to the deprivation of previously initiated government benefits. …