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The Disparate Treatment of Race and Class in Constitutional Jurisprudence


Mario L. Barnes


University of California, Irvine School of Law

Erwin Chemerinsky


University of California, Irvine School of Law

August 19, 2010

Law and Contemporary Problems, Vol. 72, No. 4, Fall 2009
UC Irvine School of Law Research Paper No. 2009-4

Abstract:     
Unlike in other countries, there is no express protection of socioeconomic rights written into the United States Constitution. Additionally, the U.S. Supreme Court has neither deemed such rights fundamental for the purposes of review under the Constitution nor found poverty to be a classification, like race, that is deserving of a searching equal protection analysis. The problem of how to reform the Court's shabby treatment of interests that have been described as "constitutional welfare rights" has been long standing, having commanded at least forty years of sustained scholarly debate. The conversation continues because even as the plight of the poor worsens in this country, socioeconomic rights are thorny. Not only does greater recognition of constitutional welfare rights provide a potential basis to limit certain types of governmental class-based discrimination, if given full effect, such rights might also be construed as forcing the provision of government benefits or assistance.

The necessary brevity of this short essay prevents the in-depth exploration of the broadest variant of the welfare rights 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, Part II of this Essay articulates just how lean the U.S. Supreme Court's jurisprudence has been in the area socioeconomic class. Sections A through C summarize the treatment of poverty under the various strands of Fourteenth Amendment jurisprudence, while Section D provides a number of justifications for why socioeconomic class deserves a more considered approach from the Court. Part III lays out how the Court's treatment of race, as classification, has been very different from the treatment of socioeconomic class and explores why there has been this difference. Part IV concludes by 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 intersecting bases for discrimination and subordination.

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Date posted: February 11, 2009 ; Last revised: August 23, 2010

Suggested Citation

Barnes, Mario L. and Chemerinsky, Erwin, The Disparate Treatment of Race and Class in Constitutional Jurisprudence (August 19, 2010). Law and Contemporary Problems, Vol. 72, No. 4, Fall 2009; UC Irvine School of Law Research Paper No. 2009-4. Available at SSRN: http://ssrn.com/abstract=1341186

Contact Information

Mario L. Barnes
University of California, Irvine School of Law ( email )
535A Administration
Irvine, CA 92697-1000
United States
Erwin Chemerinsky (Contact Author)
University of California, Irvine School of Law ( email )
535A Administration
Irvine, CA 92697-1000
United States
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