The New Class Blindness
97 Pages Posted: 14 Sep 2018 Last revised: 9 Nov 2018
Date Written: August 4, 2018
There is a widespread perception that class receives no special protection under the Fourteenth Amendment. That perception arose forty years ago, when the Supreme Court shifted to the right, rejected the idea that the Constitution protects positive rights, and declined to recognize class as a suspect classification under the Equal Protection Clause. But those consequential developments have obscured an important, ongoing form of class-related constitutional protection: one that resides not in equal protection but in fundamental rights doctrine. This Article shows that a nontrivial number of fundamental rights came to be recognized as such — particularly during the Warren Court era — because they are essential not only to individual liberty but also to the equal citizenship of people without financial resources. Today, there are still doctrinal mechanisms in fundamental rights law that require courts to consider class when adjudicating the constitutionality of rights-burdening state action.
To illustrate this phenomenon, this Article focuses on reproductive rights. The Court’s opinions in Griswold v. Connecticut and Roe v. Wade were not framed in terms of class, but class-related concerns informed the Court’s decision to recognize birth control and abortion as fundamental rights. In the contexts of voting and criminal procedure too, the Court identified certain rights as fundamental in part because the state was denying them to financially disadvantaged people. The Court developed fundamental rights doctrines in all of these areas that limited the extent to which the state could block such people from exercising their rights. Today, these long-standing class-sensitive doctrines are under threat. An increasing number of conservative judges — including a number of Supreme Court Justices — have begun to argue that class-related concerns have no place under the Fourteenth Amendment. In support of this new class-blind approach, these judges cite Burger Court precedents rejecting positive rights claims and declining to treat the poor as a protected class under equal protection. But the Burger Court never held that courts are prohibited from considering class when interpreting the Fourteenth Amendment. Indeed, it preserved many of the class-sensitive mechanisms its predecessor had developed to protect fundamental rights. Thus far, the Court has rejected attempts to eradicate these remaining forms of class-related protection from the law. But the composition of the federal judiciary is now in flux, and it is not clear that resistance to the new class blindness will endure. What is clear is that the emergent notion that class-based considerations have no place anywhere under the Fourteenth Amendment is a product not of the Burger Court era, but of our own.
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