24 Pages Posted: 24 Feb 2009
Date Written: February 23, 2009
This essay takes a step toward building a story of economic class in U.S. constitutional law, as part of a special essay issue of the Buffalo Law Review developed from a series of workshops titled ClassCrits: Toward a Critical Analysis of Economic Inequality, sponsored by the Baldy Center for Law and Social Policy at the University at Buffalo. The essay focuses on the 2003 U.S. Supreme Court decision in State Farm Mutual Insurance Co. v. Campbell, one of a series of recent cases using the due process clause of the 14th Amendment to limit punitive damage awards against corporate defendants in tort litigation.
Many scholars analyzing economic inequality and the constitution have focused on the overt substantive questions of fundamental economic rights or equal protection for people in poverty. Instead, I argue that some of the most important doctrinal action on questions of economic class in the Constitution takes place under the rubric of procedure. First, class inequality is constitutionalized by casting substantive protections for wealthy capital owners in a procedural guise, as narrow technicalities or as neutral formal principles. Second, class inequality is constitutionalized by recasting basic procedural protections for the non-wealthy into illegitimate and anti-democratic claims to substantive rights.
On the surface, the State Farm case seems to present a fairly narrow doctrinal issue concerning punitive damages that generally seems marginal to general discussions of Constitutional economic equality rights. But beneath the narrow doctrinal issue lie assumptions about economic class that have broader implications. State Farm covertly revives the Lochner era ideology that fundamental procedural fairness requires insulating organized capital interests from government accountability or constraint. Even though U.S. doctrine has emphatically rejected the idea of heightened scrutiny for economic policies treating workers or the poor unequally, the State Farm decision surreptitiously adopts a "strict scrutiny" approach to examining economic harm to large businesses. Finally, the State Farm decision constitutionalizes class inequality by interpreting conscious class opposition to wealthy capital owners as fundamentally arbitrary and irrational.
Keywords: economic inequality, due process, substantive due process, insurance; judicial review, constitutional law, strict scrutiny, punitive damages, civil justice, consumer fraud, economic class, corporate defendants, corporations, critical legal studies, fourteenth amendment; tort reform, deterrence
Suggested Citation: Suggested Citation
McCluskey, Martha T., Constitutionalizing Class Inequality: Due Process in State Farm (February 23, 2009). Buffalo Legal Studies Research Paper No. 2009-10; Buffalo Law Review, Vol. 56, pp. 1035-1057, 2008. Available at SSRN: https://ssrn.com/abstract=1348032