Wealth, Equal Protection, and Due Process
42 Pages Posted: 19 Jan 2019 Last revised: 19 Feb 2019
Date Written: January 21, 2019
Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the equal protection and due process clauses. That intersection — between equality and due process — deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia explained that “[d]ue process and equal protection principles converge in the Court’s analysis” of cases in which criminal defendants are treated differently by wealth. That equal process connection is at the forefront of a wave of national litigation concerning some of the most pressing civil rights issues of our time, including: the constitutionality of fines, fees, and costs; detention of immigrants and criminal defendants for inability to pay cash bail; loss of voting rights; and a host of other ways in which the indigent face both unfair process and disparate burdens. I argue that an intersectional “equal process” approach to these cases better reflects both longstanding constitutional doctrine and the practical stakes in such litigation. If courts properly understand this connection between inequality and unfair process, they will design more suitable and effective remedies. More broadly, scholars have bemoaned how the Court turned away from class-based heightened scrutiny in Equal Protection doctrine. Equal process theory has the potential to reinvigorate the Fourteenth Amendment as a guardian against unfair process and discrimination that increases inequality in society.
Keywords: Equal Protection, Due Process, Wealth, Fines, Fees, Discrimination, Cumulative Constitutional Harm
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