Constitutionalism and the Poor

Mark Kende 

Drake University Law School
October 16, 2012

Drake Law Review, Forthcoming
Drake University Law School Research Paper No. 12-27 
Abstract:      
United States constitutional law and theory has not focused on the poor lately. Yet poverty rates in the U.S. have reached their highest levels in 50 years. The great wealth disparities in the U.S. are at least partly responsible for the Occupy Wall Street Movement, and perhaps even the Tea Party. Because of these significant social developments, the Drake Constitutional Law Center hosted the symposium “Constitutionalism and the Poor” in April, 2012. This brief Foreword makes two arguments for why the U.S. Supreme Court could eventually show greater concern about laws that burden the poor. First, many scholars agree that the U.S. Supreme Court has used more than three levels of scrutiny in constitutional cases. For example, there is lenient rationality review and rationality review with a bite. There is the strict scrutiny of Parents Involved and the lesser strict scrutiny of Grutter. These stealth alternative levels of scrutiny certainly allow the Court to go beyond lenient rationality in cases where important interests of the poor are at stake.

Second, the U.S. Supreme Court has wrongly assumed that it lacks the judicial competence to adjudicate socio-economic rights related matters. For example, the South African Constitutional Court has enforced constitutional socio-economic rights provisions with some success. Though the South African and U.S. Constitutions are very different, the South African cases show how a judiciary can balance these interests against separation of powers concerns. The Foreword also provides short summaries of the Symposium papers that will appear in an accompanying issue of the Drake Law Review. The paper authors include Professor Peter Edelman of Georgetown, Mr. Ilya Shapiro, Esq. of the CATO Institute, Professor Julie Nice of the University of San Francisco, Professor Frank Michelman of Harvard, Professor john powell of the University of California at Berkeley, and the Honorable Mark Cady, Chief Justice of the Iowa Supreme Court.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2162527