Precedential Social Facts and the Disappearance of Poverty from Constitutional Analysis

Abstract

Ronald Kahn has rightfully drawn our attention to the social constructive process that underlies constitutional development. This article examines this process as it has contributed to the near elimination of economic inequality from constitutional scrutiny. Although rational-basis review has led to rights advances in other areas, some of the clearly irrational outcomes created by legislation affecting the poor and near poor currently remain nearly unchallenged. Precedential social construction has contributed heavily to this situation, but it might also hint at some ways forward——if the judges and justices can be found to accept the invitation.