“Our hope is that the conference will stimulate increased understanding of the law’s influence on racial and socio-economic inequality in the U.S. and a better sense of the likely consequences of various policy choices,” said Jones.
Race, class and constitutional law
In a keynote address, Dean Erwin Chemerinsky of the University of California, Irvine School of Law explored the role of constitutional law and doctrine in the pursuit of economic justice in the United States.
Basing his remarks on a paper co-authored with Professor Mario Barnes of the University of Miami School of Law, Chemerinsky blamed societal apathy, inattention by advocates and academics, and, significantly, judicial ideology for the fact that the Constitution has played “absolutely no role” in advancing the role of economic justice over the last four decades.
One problem has been the Supreme Court’s failure to recognize poverty as a suspect classification triggering rigorous, strict-scrutiny review, according to Chemerinsky. “The Supreme Court has said now for almost 40 years that discrimination against the poor only has to meet rational basis review,” he said. Even laws that blatantly discriminate against the poor would be upheld, so long as they are “reasonable” and are rationally related to a legitimate government purpose. “The government almost always wins under rational basis review.”
The poor are also left unprotected by the constitutional doctrine that says discriminatory impact alone is not sufficient to show an equal protection violation; a discriminatory intent must also be shown, Chemerinsky added.
“The laws that harm the poor are rarely motivated by a desire to harm the poor,” he said. “Proving discriminatory intent is enormously difficult.” He argued that the most successful civil rights laws of the past 40 years, Title VII of the 1964 Civil Rights Act prohibiting employment discrimination based on race, sex, and religion, and Section 2 of the Voting Rights Act as amended in 1982, make evidence of discriminatory effect key to proving a violation.
A third doctrinal problem arises with the Supreme Court’s repeated finding that the Constitution delineates negative liberties, rather than affirmative rights or entitlements. “The Supreme Court has said this on many occasions,” said Chemerinsky. “The government can’t deny life, liberty, and property without due process of law. But the Supreme Court has said there’s no affirmative rights.
“We need to challenge the myth — and it is a myth — that the Constitution is only about negative liberties,” he said. “The Constitution guarantees many affirmative rights,” such as the right to insist that an officer have a search warrant before entering your home, or the right to counsel. “The Constitution should be seen as guaranteeing life, liberty, and property — as having a right for every individual to food, shelter, and medical care.”
The Supreme Court has become progressively more conservative since the end of the “Warren court” in the late 1960s, Chemerinsky observed, and has been “very unconcerned” with issues of economic justice. “Certainly there was language in the opinions of the Warren court to indicate that a majority believed that poverty should be a suspect classification, that discriminatory impact should be a basis for an equal protection violation, that there should be minimum entitlements under the law,” he said.
Recalling Martin Luther King Jr.’s 1968 statement that the focus of the civil rights movement should be on economic justice, Chemerinsky challenged his audience. “If we are going to dream about a country with economic justice, we have to start doing the work now.”
Immigration law, race, and class
A second keynote speaker, Dean Kevin Johnson of the University of California at Davis School of Law, said that the interrelationship of race and class is strongly evident in immigration law.
“Immigration laws historically have operated, and continue to operate, to prevent many poor and working people of color from coming to the United States,” he said. “The immigration laws have helped to create a racial caste system in our labor market based on immigration status.”
Johnson said that while modern legislators eschew the kind of overt bigotry that characterized past immigration laws (such as the 19th century law barring entry to all Chinese nationals), the way the laws are written and enforced still cause undue hardship for poor immigrants, most of them non-white.
“Generally speaking, people from the developing world, predominantly people of color… find it much more difficult to immigrate legally to the United States than similarly situated people from the rest of the world,” he said.
In part, this disparity is due to caps on immigration that hold all countries to the same number of immigrants, so that large countries in the developing world, such as India or Indonesia, are allowed the same number of immigrants to the U.S. as smaller European countries where there may not even be enough applicants to fill the immigration quota, Johnson said. Consequently, aspiring immigrants from the developing world have to wait much longer than their counterparts from wealthier countries.
Johnson alleged that immigration laws are often selectively enforced. “Even though they comprise about 50 percent of the undocumented population, about 80 to 90 percent of those deported every year are Mexican and Central American,” he said.
Specific provisions of immigration law can also be used to disproportionately affect immigrants from the developing world, he added. “The United States, despite claiming that it adheres to the ideal that it embraces the huddled masses, has not been particularly open to poor and working people seeking admission. There is an enduring fear in the this country that, unless strong defensive measures are taken, poor immigrants will overrun the United States, flood the poorhouses and overconsume public benefits.
“Responding to that fear, U.S. immigration laws have long provided that, even if otherwise eligible for a visa, aliens ‘likely at any time to become a public charge’ cannot be admitted into the United States. Over time, Congress has tightened this ‘public charge’ exclusion, and during the last decade, enforced it with increasing vigor.”
“Race & Socio-Eonomic Class: Unraveling an Increasingly Complex Tapestry,” was co-sponsored by the Jean E. and Christine P. Mills Conversation Series on Race and Duke’s Center for Criminal Justice and Professional Responsibility. The event is available for viewing as a webcast and will be the subject of an upcoming symposium issue of Law & Contemporary Problems.