Mario L. Barnes and Erwin Chemerinsky, The Disparate Treatment of Race and Class in Constitutional Jurisprudence, 72 Law & Contemp. Probs. 109 (2009), https://digitalcommons.law.uw.edu/faculty-articles/559
The Disparate Treatment of Race and Class in Constitutional Jurisprudence
Law and Contemporary Problems
Unlike the constitutions of some other countries, the United States Constitution includes no express protection of socioeconomic rights. Nor has the U.S. Supreme Court either deemed such rights fundamental for purposes of review under the Constitution or found poverty to be a classification, like race, that deserves searching equal-protection analysis. Calls to reform the Court's shabby treatment of socioeconomic interests-interests that have been described as "constitutional welfare rights"-have been long-standing, having commanded at least forty years of sustained scholarly debate The conversation continues because, even as the plight of the poor worsens in this country, the role of socioeconomic rights in the debate presents thorny issues. Not only would greater recognition of constitutional welfare rights provide a potential basis to limit certain types of governmental class-based discrimination, such rights, if given full effect, might also be construed as forcing the provision of government benefits or assistance.
The necessary brevity of this essay prevents the in-depth exploration of the broadest variant of the welfare-rights debate: how to effectively structure a constitutionally recognized right to some form of basic subsistence. Justifications, however, can be provided for why discrimination based upon socioeconomic class needs greater constitutional protection and how a more robust equal-protection analysis can serve as the means to achieve this goal.' Toward this end, this essay first articulates just how lean the Court's jurisprudence has been in the area of socioeconomic class: part II initially summarizes the treatment of poverty under the various strands of Fourteenth Amendment jurisprudence, then provides a number of justifications for why socioeconomic class deserves a more-considered approach from the Court. Part III lays out how and explores why the Court's treatment of race as a classification has differed considerably from its treatment of socioeconomic class. Part IV concludes with our suggesting that the Court should abandon its present bifurcated jurisprudence on race and class as a first step toward acknowledging the need for consistent judicial treatment of classifications that operate as overlapping and reinforcing bases of discrimination and subordination.