Constitutional “Equal Process” and the Problem of Poverty

Brandon L. Garret, Wealth, Equal Protection, and Due Process, Duke Law School Public Law & Legal Theory Series No. 2019-14 (Jan. 14, 2019), available at SSRN. Mark Kende It is a constitutional law truism that wealth and class are not suspect classifications, nor does the government have a substantive due process obligation to fund abortions or provide most government benefits. This is because our Constitution is generally seen as containing negative rights, not affirmative obligations. But there are exceptions. For example, the Sixth Amendment means that the government must pay for an indigent criminal defendant’s attorney. In his new article, Wealth, Equal Protection, and Due Process, Brandon Garrett argues that there are more exceptions than we usually think there are. Garrett shows that the Supreme Court has ruled that poor individuals are entitled to fair government treatment, creating a wider swath of government obligations to fund than we generally…

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