The New Class Blindness

There is a widespread perception that class receives no special protection under the Fourteenth Amendment. That perception arose forty years ago, when the Supreme Court shifted to the right, rejected the idea that the Constitution protects positive rights, and declined to recognize class as a suspect classification under the Equal Protection Clause. But those consequential developments have obscured an important, ongoing form of class-related constitutional protection: one that resides not in equal protection but in fundamental rights doctrine. This Article shows that a non-trivial number of fundamental rights came to be recognized as such—particularly during the Warren Court era—because they are essential not only to individual liberty but also to the equal citizenship of people without financial resources.

Today, there are still doctrinal mechanisms in fundamental rights law that require courts to consider class when adjudicating the constitutionality of rights-burdening state action.