No Scrutiny Whatsoever: Deconstitutionalization of Poverty Law, Dual Rules of Law, and Dialogic Default

Abstract

This article traces how the Supreme Court has deconstitutionalized Poverty Law by four departures from normal constitutional doctrine: first, by categorical immunization of “social or economic legislation”; second, by circumvention of normal suspect class or classification analysis; third, by application of rationality review in a reflexive manner to uphold governmental regulation; and fourth, by ratcheting down from the heightened scrutiny normally used for protection of established fundamental rights. In particular, she explores the historical emergence of judicial deference for “social or economic legislation,” and finds that Justice Douglas, who coined the phrase, specifically rejected deference for laws that disadvantaged poor people. Turning to the present, Professor Nice argues poor people lack the financial clout necessary to achieve meaningful political protection. Building on the ground-breaking work of the late Jacobus tenBroek, she argues that the exclusion of poor people from both constitutional and political protection has contributed to the construction of dual rules of law, one superior set of rules for the haves and an inferior set of rules for the have-nots. She then blends dialogic constitutional theory and social movement mobilization scholarship to explain how the dialogic default on questions of economic justice both reflects and perpetuates the lack of constitutional rights for poor people. Professor Nice concludes that it is precisely the mutually reinforcing power of mobilizing political support and claiming legal rights that together can produce traction toward achieving constitutional inclusion for the have-nots.

Keywords: poverty law, constitutional law, suspect class, rationality review, Jacobus tenBroek