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Poverty Law
Rutgers University, Newark School of Law
Dubin, Jon C.

Poverty Law IIA: Constitutional Treatment of Poverty: History, Mobility, Privileges of Citizenship
II. The Constitutional Treatment of Poverty
A. Historical Treatment of the Poor: Poverty, Mobility and the Basic Privileges of Citizenship
The Poor Law, 43 Eliz., c.2 (1601)
An Act for the Settlement and Relief of the Poor, An Act of Mar. 11, 1774, microformed on the 22d Assembly of New Jersey, 2d Sess., Fiche 1, at 408 (excerpt)
William P. Quigley, Reluctant Charity: Poor Laws in the Original Thirteen States, 31 U. Rich. L. Rev. 111 (1997) (excerpt)                   
Edwards v. CA (1941)
Context: New Deal; increase in Congress’ power under Commerce Clause; severe social dislocation: Grapes of Wrath; leaving Dust Bowl
CA LAW: Expressly prevents interstate travel of indigent from another state into CA
Negative: creates economic gridlock and isolationist states
Similar to Elizabethan Poor Laws in that it localized responsibility for the poor
Majority: transportation of poor persons = commerce
Jackson and Douglass: rights to travel and mobility
Fall under P&I of 14th Amendment
Inherent national right to travel
Commerce clause misplaced: people aren’t commerce
P&I Clause killed by Slaughterhouse: P&I reiterated Fed. Rights of citizenship already enumerated
Concurrence (Douglass) wants to resurrect P&I Clause
Majority (Byrnes):
Commerce is a tool used to protect against state discrimination of commerce
Court mostly rejects Poor Laws
Post-37 jurisprudence: New Deal; stock market crash; national responsibility for poverty
1836: City of NY v. Miln: poverty and morality are not synonymous
No discussion of EPC: still undeveloped
Jackson alludes to EPC: why tx. ppl. Differently based on factors irrelevant to citizenship
If a city passes zoning ordinance similar to CA law, still impacts inter-state commerce
Shapiro v. Thompson (1969) (6/3 decision)
CT law: 1 year residency requirement for welfare
Residency reqs. have their genesis in colonial poor laws –FN.7
Majority (Brennan): EPC violation
Strict Scrutiny:
Invidious classification b/t 2 different classes of needy residents
Those who get welfare
Those who don’t get benefits if their residency is under 1 yr.
Deprived: food, shelter, means to subsist
Fundamental Right: violates right to interstate travel
P.110: so fundamental, not enumerated
NOTE: Fundamental right is not “means to subsist”
State Interests: 4 reasons; Not compelling
Waiting period will deter folks from coming – violates EPC: can’t discourage migration of poor people
Saves $: Saving $ this way is constitutionally impermissible; saving $ doesn’t justify the invidious classification of groups
State has limited funds: why not preserve for long-term residents?
Would affect funding for schools, parks, police, fire: inhumane and bad public policy
Under Strict Scrutiny: classifications must be finely tailored, can’t be under/over-inclusive
Dissent: Legitimate govt interests
No Suspect Class:
Wealth status shouldn’t be a suspect class [as found in Harper (poll tax)-1966] No Fundamental Right to travel
The court should not be reading in unenumerated rights, but should only use the express rights in the Bill of Rights.
Those other rights are not for the courts to decide as a “super-legislature”, but for the legislature.
Court’s meddling may deter states from experimenting w/welfare experimentation.
Travel not burdened
Theoretical Questions:
Why is this law unconstitutional if states don’t have to adopt welfare at all?
Why do they have to supply this program for other state’s previous residents?
B/c of inequality – if they offer it to one class; must be offered to all classes
If states don’t adopt welfare at all -> wouldn’t this also deter travel? Why isn’t this unconstitutional and violative of one’s fundamental right to travel?
Saenz v. Roe (1999) (7/2 decision in Conservative Rehnquist Court)
1996: Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)
CA: enacted statute limiting welfare benefits to newly arrived residents…DURATIONAL RESIDENCY REQUIREMENT
extends benefits to level of old state for 1st year under PRWORA
Context: Many felt Shapiro decision was vulnerable
– doctrinal basis of decision was cut back: not extended to state tuition, or out-of-state divorce
CA reasoning:
Fiscal decision to save $10 m

natory; discriminatory effect
Is it true those impoverished are a suspect class, requiring strict scrutiny?
DPC: criminal procedure is at play
Transcript is necessary for appellate review
Is this a fundamental rights case re: meaningful appellate review?
Procedural due process
Majority: Black
P.127: Equal justice: “Destitute D’s must be afforded as adequate appellate review as D’s who have enough money to buy transcripts.”
Appeal is not a right, but once you open access…equal access
Doesn’t mean state must buy transcript, but the court may find other means of affording adequate appellate review.
Majority finds both EPC and DPC violations under strict scrutiny
Concurrence: Frankfurter
State need not equalize economic conditions
However, EPC violation:
If the state “has a general policy of allowing criminal appeals, it cannot make lack of means an effective bar to the exercise of this opportunity.”
Re DPC: appeal is not a fundamental right
Dissent: Harlan
Are you saying any financial barrier discriminates against the poor? Where do you draw the line?
No EPC or DPC: costs of maintaining the system
No discrimination against the poor – merely a law that has impact on the poor
Neutral on its face
Court sanctioned reverse discrimination against the non-poor by offering free transcripts only to the poor
CLASS: But, does non-poor fit into Carolene Products as a class that needs to be protected?
Court gives ambiguous clarifications re: EPC and DPC
Law is neutral on its face à discriminatory in its application
Suspect class? = impoverished? (plurality)
Where does this end? Taxation? Tuition? Etc…
Fundamental right?
Right to a min. access of justice?
Right to equal justice for poor D’s?