Poverty, Inequality, and Class in the Structural Constitutional Law Course

Article excerpt

I. INTRODUCTION

Poverty, economic inequality, class, and distributional justice are issues embedded in our constitutional history. They have animated important developments in our constitutional understandings and hold deep, though frequently unacknowledged, significance for constitutional theory and doctrine. Historically, considerations of poverty, inequality, and class played a substantial role in the framing of the 1787 Constitution and the adoption of the Reconstruction Amendments following the Civil War. (1) During the Great Depression and the New Deal, they sparked the constitutional transformation that accompanied the radical re-conceptualization of national power and public responsibility for the material security of citizens; (2) a generation later, they figured prominently in the "due process revolution" of the 1960s and 1970s. (3) Conceptually, the continued existence of an impoverished class of citizens, politically marginalized, physically segregated, and socially isolated, stands in sharp tension with the core principle of equal citizenship and poses a direct challenge to basic assumptions underlying important areas of constitutional theory and doctrine. (4)

The relevance of poverty, economic inequality, and class to a constitutional law course dealing with individual rights ought to be readily apparent. Due process, equal protection, and the First Amendment--to take three prominent examples--provide fertile ground for exploring the significance of poverty to constitutional theory and doctrine. Less obvious, though, is how and whether these issues might be taught through a constitutional course on structure, separation of powers, and federalism. This Article explores some opportunities for integrating poverty-law issues into a structural constitutional law course and offers an argument for why such integration is desirable. Part II canvasses various understandings of the term "poverty law," briefly recounts the apparent disappearance of poverty-law issues from the law-school constitutional canon--as well as from the agenda of liberal constitutional theorists--and argues for renewed attention and re-integration. Part III discusses the overarching significance of poverty and economic inequality to constitutional theory and doctrine and recommends specific topics and cases from the standard structural constitutional law curriculum that offer opportunities for raising and developing poverty-law issues. The Article closes with a brief conclusion.

II.

As the Symposium (5) asks us to address the role of "poverty law" in the law school curriculum, it seems appropriate to reflect for a moment on the provenance and meaning of that term. Though efforts to address the distinct legal needs of poor people date back to the nineteenth century, (6) it was only in the 1960s that the phrase "poverty law" came into widespread use. The term now carries an array of overlapping meanings. In a fundamental sense, poverty law refers to the new form of legal practice that emerged during the "War on Poverty" of the 1960s, (7) a form of practice that transcended the traditional legal-aid model of providing individual representation in unconnected and usually private-law matters, and instead sought to enlist the law in a systemic effort to achieve social and structural changes that might alleviate poverty itself. (8) In a related sense, poverty law might be understood as a reference to the substantive areas in which lawyers for the poor have carried on this new kind of practice, areas as diverse as welfare law, family law, housing law, consumer law, employment law, and education law (9)--frequently intermixed with innovative theories of constitutional law and administrative law--and the distinctive approaches to those areas dictated by the needs and goals of economically distressed communities and individuals. (10) As a form of practice with transformative aspirations, poverty law might also be taken to mean one or more of the alternative models of lawyering pursued by some poverty lawyers that generally reject the hierarchies of the conventional lawyer-client relationship, favor work in alliance with social change movements, community organizations, and client groups, and envision a more facilitative and collaborative role for the attorney. …