john a. powell, Constitutionalism and The Extreme Poor: New-Dred Scott and The Contemporary "Discrete and Insular Minorities", 60 Drake L. Rev. 1069 (2012)
This symposium issue addresses a range of questions concerning the Constitution and the poor. In this Essay, I will share some initial thoughts responsive to what has already been presented in this issue of the Drake Law Review and what was discussed during the symposium, and then I will turn to the question at hand and attempt to introduce a few new ideas into the discussion. First, I will address an issue raised by Mr. Shapiro. When I posed the question to him regarding which period, in his view, best represented an appropriate constitutional interpretation and understanding, he answered with the Lochner Era. With that ideal in mind, I would like to offer a few observations, not merely as a rejoinder to Mr. Shapiro, but which reflect views found throughout my writings. The Lochner Era, which most students study, is also the Jim Crow Era. That is not a coincidence, and yet students do not study or recognize the connection. Market fundamentalism, or neoliberalism, which is also referred to as the free market ideology is closely linked to a very truncated notion of civil rights and human rights. This ideology in the modern era is linked very closely to an expansion of the penal sphere generally and the prison industrial complex in particular, which has been particularly oppressive to the poor and marginalized. The relationship between race, mass incarceration, and social control is increasingly evident. This is reflected in the writings of scholars such as Michelle Alexander, who argues that our current criminal justice system is analogous to the highly racialized labor systems of African slavery and Jim Crow that preceded them in both purpose and effect. Alexander identifies a linkage between the civil rights backlash and increasingly draconian drug laws. What Bernard Harcourt does, even more explicitly than Michelle Alexander, is demarcate what we consider spheres of appropriate and inappropriate regulation dating back to the sixteenth century. There is an increasing recognition that these spheresâ€šÃ„Ã®the penal sphere and the so-called private sphereâ€šÃ„Ã®are in fact connected, even if not so much in theory. Harcourt asserts the conservative position is in support of a highly regulated sphere of social control while maintaining limited or weak control of markets.