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Making of a Poor American

The article Poverty, Democracy, and Constitutional Law (1993) authored by Stephen Loffredo discusses the issue of the Court`s Poverty Jurisprudence and the controversial points which arose when it crosses the borders of the concepts of democracy. To introduce and study the issue thoroughly Loffredo first suggests the summery of the case, and then closely analyzes its democratic premise, legislative and academic aspects. The article attempts to criticise the doctrinal limits and the paradigmatic framework of the Court and sheds light on the inconsistency, so to say a kind of double standard, in the poverty jurisprudence of the American Court. The author of the article proves the necessity of improvement of the social justice with the help of poverty law reconstruction. In the essay I will suggest my own understanding of Poverty, Democracy, and Constitutional Law and the issue discussed by Stephen Loffredo. Thus, I will explore the way poverty is treated by American constitutional law and its relations with democratic policy. In order to fulfil the tasks mentioned above I will go over the case of Mr.A. and then critically analyze the aspects employed and the inconsistencies found in this case. Additionally, my research will investigate the democratic premise of rationality review, the way the Supreme Court treats the claims of the poor, and the concept of democracy that underlies the approach to the claims of the poor. In the conclusion I will state my findings using the critical approach.

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The case of Mr. A., discussed by Loffredo in Poverty, Democracy, and Constitutional Law, dates the winter of 1987. The federal law barred Mr. A. from receiving food stamps because he was homeless and slept in a city-run shelter. (Loffredo, 1993, n2) The medical condition of Mr. A. required meals which were not provided by the shelter and as a result Mr. A frequently suffered from hunger. (Loffredo, 1993, n2) The condition of Mr. A worsened and after repeated hospitalizations he died mostly because of his constant malnourishment and dehydration. (Loffredo, 1993, n4) A federal district court withheld food assistance from Mr. A. (Loffredo, 1993, n5). This case may serve only as a single example of a broad process of discrimination that take place in the current practice of American legislation.

The article Poverty, Democracy, and Constitutional Law holds the idea that the claims of poor people are treated by the Court in discriminative and undemocratic way. Loffredo studies the history of this problem and finds out that the legislative discrimination against poor became explicit after the Supreme Court had declared that the claims of the poor would be assessed only under rationality review. (Loffredo, 1993, n6). The roots of discrimination went deep into the field of relations between American politics and wealth: “The judiciary must broadly defer to political outcomes in the area of `economics and social welfare,` the Court declared, even when they deny `the most basic economic needs of impoverished human beings.`” (Loffredo, 1993, n7). The reasoning brought to justify the antidemocratic way of poverty cases treatment is grounded on the following supposedly legislative basis:

1)                           Constitution does not guarantee material subsistence (Loffredo, 1993, n8). and therefore poor men like Mr. A. have no right for special judicial protection;

2)                           Poverty itself is not regarded by the Court as a suspect classification, so legislative discrimination against poor people does not initiate any close judicial scrutiny. (Loffredo, 1993, n9).

In order to justify its poverty cases, the Court stresses on the assumption that in America poor people have fair access to the political process, though the question of democracy of this process remains open. “Yet the Court has never paused to consider whether the political process is in fact `democratic` with respect to the poor. For the millions like Mr. A., though, having their claims remitted to `the democratic process` usually means no process at all.” (Loffredo, 1993, n10).

While the thorough examination of the Court`s Poverty Jurisprudence and the case of Mr. A in particular, Loffredo questions the democratic premise of rationality review. First of all, Loffredo states, judicial non-interference with unjust and inhuman policies is warranted because the authority consists not of people’s representatives but of non-elected judiciary. (Loffredo, 1993, n52). Then, the inconsistency is found in the regime of rationality review, which “generally accords a strong presumption of constitutionality to the outcomes of democratic political processes, at least in the context of `legislation affecting ordinary commercial transactions` that are said to implicate no preferred or personal rights.” (Loffredo, 1993, n57). As a result of such a regime, courts chase the interests of political outcomes which mostly view poverty cases as not enough politically correct. For example, The Burger and Rehnquist Courts extended the presumption of constitutionality to the matters that involve the basic economic needs of impoverished people “with an absence of analysis that can only be described as breathtaking.” (Loffredo, 1993, n58).

Further, the democratic premise of rationality review is analyzed in the article from the point of view of its relations with the court’s treatment of the poor. Orthodox constitutional theory saw the issue of deferential judicial review as the democratic legitimacy of the political process. The cases of political rights established an egalitarian conception of democracy on the background of wealth-based disparities of political representation access, or influence. Thus, the democratic premise of rationality review is not possible until poor citizens are politically marginalized. This suggests the following conclusions:

1)                           if `democratic legitimacy` is doubted, courts do not need to deter to political outcomes;

2)                           the `democratic legitimacy` is seriously undermined by the wealth-based inequalities of political representation access, or influence;

3)                           Courts do not need to defer to political outcomes that relate or have any connection with significant wealth-based inequalities of political representation influence, or access.

Equally important is to note that the citizens with low income are politically marginalized only on the basis of their economic insufficiency. In this way, the poor must have judicial protection because they are denied to access the political system for the reason, which is democratically illegitimate. (Loffredo, 1993, n121). The case of Mr. A., as Loffredo concludes, “strongly suggested that political outcomes do not merit the judicial trust that rationality review encompasses when they significantly disadvantage a group marginalized because of poverty.” (Loffredo, 1993, n122).

Nevertheless, the actual practice of the Court’s poverty discourse opposes doctrinal trend concluded above by Loffredo. For instance, the Burger Court rejected the idea that poor people were undemocratically denied to participate in public decision-making. Instead, the constitutional claims of the poor were treated in the feeblest form of rational review.  It evidences that the Court “mechanically attaches the usual presumption of constitutionality to classifications that affect the poor, without inquiring into the democratic legitimacy of the underlying process.” (Loffredo, 1993, n122). However, the Court regularly warns that any form of judicial intrusion into decisions made by majority, would harm the mere foundations of democracy. The last brightly exemplifies the phenomena of double standards.

The discussion of the democratic premise of rationality review inevitably leads to the investigation of the problem of application of democratic concept in the Court`s Poverty Jurisprudence. According to the article, contemporary Poverty Jurisprudence of the Court treats the claims of the poor in accordance with the ideology of democratic elitism. This ideology appeared due to the narrowed access to the political process itself and the wealth-based inequalities of political representation, access, and influence. In real life this ideology results in the distancing of low-income citizens from political power. (Loffredo, 1993, n122). The ideology of democratic elitism is supported by the argument that lower classes are functionally incapable of participating in politics and thus they need to be politically marginalized. Yet, democratic elitism denies any special constitutional protection to poor people regarding their social and economic hardships, arguing that political out-status of poor people “strikes the Justices as a natural and appropriate feature of American government, rather than an undemocratic aberration or malfunction.” (Loffredo, 1993, n378).

The ideology of democratic elitism began with the view introduced in the first Chief Justice that “those who own the country ought to govern it.” (Loffredo, 1993, n379). This view regarded the nonpropertied masses as a threat and forbade their any meaningful access to state power. (Loffredo, 1993, n381). Further, Loffredo remarks with some regret in his article that an open political process and the achievements of the six constitutional amendments of the past two centuries did not manage to clear up the mentioned elite perspective from the mentality of American judiciary. Surely, this perspective has been driven underground. Today nobody hears appeals to class status as a sign of public power. Nobody repeats the idea endorsed by Justice Harlan that propertied classes would better manage the nation and that the franchise should be restricted to those without means. (Loffredo, 1993, n383).Nevertheless, “the disappearance of these sentiments from modern judicial discourse teaches little: the Court`s silence might simply reflect the legal system`s aura of neutrality, which would be sorely tested if the Court confessed to a `democratic` theory that openly favored the affluent.” (Loffredo, 1993, n384).

Moreover, the actual treatment of political participation by Court has shown asymmetric pattern marked with class differentiation. The evidence that class emerges can be seen in the following:

1)      The Court demonstrated exceptional sensitivity to such elite communicative modes as:

–          corporate campaign financing (Loffredo, 1993, n386);

–          corporate speech (Loffredo, 1993, n387);

–          political expenditures of a large scale (Loffredo, 1993, n388);

–          prerogatives of the mass media (Loffredo, 1993, n389);

2)      The Court has been inhospitable to such plebeian modes of political participation and expression as:

–          the public display of posters (Loffredo, 1993, n391);

–          picketing (Loffredo, 1993, n392);

–          residential distribution of handbills(Loffredo, 1993, n393);

–          demonstrations in public parks(Loffredo, 1993, n394);

In this way, the Court has adopted less impressive but better pedigreed modes of participation and expression, which are closer to noble “aesthetics” and avoidance of demonstrating `visual blight.` (Loffredo, 1993, n395). And, on the other hand, this pattern testifies to a strong underlying elitism, which ca not be ignored. (Loffredo, 1993, n397).

Since, it becomes clear that American power jurisprudence fails to treat seriously the claims of poor,  Loffredo tries to find a coherent theory which would justify such undemocratic approach. In doing so,  Loffredo suggests in the article academic justifications and of the Court’s Poverty Jurisprudence. The group of academic justifications includes conservative, centrist and liberal apologies. The representatives of conservatism argue that poor people do not need protection from the court because they live in already favourable conditions created by American politics and free market economics. Conservative philosophers do not believe that poor people have no political access and  support it with the argument that in the 1960s and 1970s the explosion of welfare legislation took place and caused the `massive income redistributions`.(Loffredo, 1993, n157). Also, conservative apology negates any evidence that the poor are outside the community can not participate in political process. (Loffredo, 1993, n159). Generally, conservative theory is coloured with a kind of unreal optimism which presents history in a distorted way. It is logical to say that failing to see the problem of the poor does not solve this problem.

The theory of centrists suggests `representation-reinforcing` model to justify  the Court`s poverty jurisdiction. This theory views the task of the Court in `[p]olicing the [p]rocess of [r]epresentation` in order to protect against democratic `malfunction.` (Loffredo, 1993, n238). The function of the Court is not limited to improving processes of public decisionmaking. Rather, it must adjust political outcomes for people that are undemocratically disabled through normal political channels, that are `barred from the pluralist`s bazaar, and thus keep finding [themselves] on the wrong end of [legislative] classifications, for reasons that in some sense are discreditable.` (Loffredo, 1993, n242). The theory of centrists, unlike the conservative theory, admits that the poor possess the access to the public decision making formally and are politically marginalized.  The centrists conclude  that “the `social intercourse` between majority and minorities that ordinarily operates to mitigate `exaggerated stereotyping` of outgroups does not exist between the haves and have-nots; a sufficiently significant form of `prejudice` therefore persists to warrant judicial concern about legislation that disadvantages the poor.” (Loffredo, 1993, n256).

Finally, the liberal apology argues that “the judiciary ought to intervene when groups are undemocratically fenced out or denied their `fair share of political influence.` (Loffredo, 1993, n288). Liberals contend that the current constitutional theory is based on prejudice against low-income minorities. The structure of modern constitutional doctrine can not protect the victims of undemocratic politics. (Loffredo, 1993, n289). However, following the major points introduces in the liberal theory, American jurisprudence requires no restructuring of the basic theory of constitutional review. The existing framework needs to adopt a kinder, gentler jurisprudence. The new mission of the Court should be in “enduring role for the judiciary` as the guardian of democratic government.” (Loffredo, 1993, n296). On the whole, the liberals state that the democratic breakdown is caused by `prejudice against discrete and insular minorities.` (Loffredo, 1993, n299). While the apology itself contains insufficient argumentation and suffers from the lack of criticism, it just proposes “some suggestions for future consideration.” (Loffredo, 1993, n302).

Thus, in my research paper I have found out that the Court`s poverty jurisprudence fails to deal with the political marginalization of people with low-income. Such discrimination of rights and undemocratic application of rationality standard can not be justified with any coherent theory. I have also come to conclusion that the Court`s treatment of the poor is based on a neutral view in which wealth plays an influential and determinative role. If my suppositions and findings are true, then it is constitutionally approved to distribute influence and power on the basis of wealth. In this case it would be logical to say that the current regime that is deferent to legislative outcomes affecting poor people is internally indefensible. (Loffredo, 1993, n397).

Moreover, the wealth-driven politics corrupts and distorts democratic process in the Court`s poverty jurisprudence. The main problem is that wealth plays the structural role in the American political order. This role works in such a way that it causes the systematic disadvantage of the lower classes and apologies a heightened kind of constitutional protection on their behalf.  (Loffredo, 1993, n409). Wealth itself does not threaten democratic order. Money does not increase the importance and quality of political speech. But money draws political power toward itself at the expense the poor. (Loffredo, 1993, n425). Thus, it is logical to conclude that concentrated wealth is capable of distorting political processes and “the control of material resources strongly determines the distribution of public power.” (Loffredo, 1993, n426).

Finally, it can be concluded that American constitutional jurisprudence is based on wealth-determined politics. It is obvious that wealth purchases political power and low-income citizens are denied any share of political influence. (Loffredo, 1993, n429). Money has become the currency of political power and also it has become the way to measure a share of a citizen in self-government. As a result, the system excludes those who possess no economic resources out of political resources as well. (Loffredo, 1993, n431).

Thus, nowadays democratic legitimacy remains a myth, a harmful negative process which is characterized by political marginalization of the poor, the politics of sensationalism and scapegoating, the usage of stereotypes and masking the lack of reason decision making. This lack is a sign of a significant democratic defect, which in the area of the Court`s poverty discourse causes the damage more personal and more tragic. (Loffredo, 1993, n486). When the poor and homeless apply to constitutional court in hope that they will find justice, empathy and concern, the stakes are very high. The indifference of the Court may mean for people like Mr. A the difference between life and death. The broad deference to political outcomes that makes poor people starve and die can not be justified or apologized by economic inequalities and corrupted political order. (Loffredo, 1993, n486). It becomes clear the issue of the Court`s Poverty Jurisprudence requires urgent measures of social justice improvement and poverty law reconstruction in order to achieve de-marginalization of the poor.


Loffredo S., Poverty, Democracy, and Constitutional Law, UNIVERSITY OF PENNSYLVANIA LAW REVIEW, 1993