Whither the Canaries: On the Exclusion of Poor People from Equal Constitutional Protection

Abstract

While neoliberal orthodoxy posits that a rising tide of economic growth will lift all boats, a sea change began in the United States around 1970 that marked the end of our social commitment to shared prosperity and the beginning of the steady widening of income inequality to its current historic level. In response, poor people might have been expected to turn to the courts for protection against the perennially pervasive prejudice against them, especially considering their relative — if not absolute — lack of political clout. But the Supreme Court had virtually closed the courthouse door in Dandridge v. Williams, affording to poor people only the most deferential rationality review used for business regulation, which was purportedly necessary to avoid the economic judicial activism associated with the Lochner era. This Article challenges both the inevitability and the constitutional defensibility of reflexive judicial deference for governmental regulation of those most impoverished.

Professor Nice argues that the Court not only ducked the questions necessary for ensuring equal constitutional protection for poor people in Dandridge but also subsequently extended the pretense that it had fully considered and decided that poor people should receive only the most deferential rationality review. Further rejecting the Court’s facile conflation of business and social regulation, Professor Nice highlights the middle way forged by Justice Douglas, who applied deferential review to business regulation but insisted on heightened scrutiny for governmental discrimination against poor people. Moreover, and contrary to common belief, Professor Nice argues that the original and canonical version of rationality review for business regulation has involved meaningful judicial review of the practical operation of the government’s classification within the relevant contextual setting.

Insisting on the extension of equal constitutional protection for poor people, Professor Nice makes two modest suggestions for courts. First, courts should distinguish between the enormously different realities affected by business and social regulations and (re)consider the need for heightened scrutiny for poor people in their present circumstances. If the courts provided equal consideration of the suspect class factors, she argues that courts would be hard-pressed to deny that poor people suffer extreme vulnerability, historical discrimination, ongoing societal disapproval, political powerlessness, the gross inadequacy of poverty as a proxy for individual ability to contribute to society, and the well-documented difficulty of escaping abject poverty. Second, she argues courts must, at the very least, conduct the same type of actual, factual, practical, contextual review that was provided in the original, canonical business regulation case (e.g., Lindsley) as well as other canonical social regulation cases (e.g., Heller, Romer, Yick Wo, Eisenstadt, and Moreno). Only by affording poor people equal constitutional protection — via either heightened scrutiny or an actual, factual, practical, contextual review of rationality — can the courts discharge their duty to ensure that governmental discrimination against poor people is not invidious.

Keywords: Dandridge v. Williams, poor, impoverished, judicial deference, governmental regulation, economic judicial activism, constitutional protection