Rough Draft: Please Do Not Cite or Circulate without the Permission of the Authors the Measurement of Power: Revisiting Suspect Class Analysis

This is a very preliminary and incomplete rough draft of an article we are considering pursuing. The focus, as the title indicates, is on the Court’s measurement of political power in its suspect class analysis. I am doing this first at the doctrinal level, identifying the Court’s employment of a measure of political power focused on the existence of democratic action favorable to a group as a basis for denying suspect class status. I then seek to gauge empirically whether this measure of political power is suggestive of the political power of the group. The poor serve as the focus of this inquiry. The constitutional status of the poor, which was surprising to me, has never been directly addressed under the Court’s suspect class analysis. The Court has instead declared that wealth is not a suspect classification by fiat. What I want to do is to engage the suspect class analysis with respect to the poor and assess whether the existence of democratic action favorable to the poor provides a measurement of political power.