Professor Michael Waterstone
This was originally posted on American Constitution Society for Law And Policy as part of their 2015 Constitution Day Symposium.
Disability should be included in constitutional discussions. For the most part, it has not been. The doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Especially given that there is a statute, the Americans with Disabilities Act, that in many ways goes further than what constitutional law could require, disability cause lawyers have not brought cases under constitutional theories. And, tracking this, the progressive academic discussions of the Constitution’s future and potential do not usually include any discussion of disability.
I believe the disability rights movement has more to offer constitutional law, and constitutional law has more to offer the disability rights movement. This is the case for at least several reasons.
First, even assuming that the ADA is a more effective tool to combat the discrimination most people with disabilities face in their daily lives, its vitality is under constitutional attack. Cases like Garrett and Lane challenge Congress’s ability to legislate on behalf of people with disabilities under its Section 5 of the Fourteenth Amendment powers, and these attacks will continue. With equal protection law, if you are not playing offense, you are not playing adequate defense either.
Second, even without wanting to charge at windmills, leaving Cleburne where it is for disability cases (which is almost always rational basis, so a plaintiff with disability loses) may leave too much on the table. Obergefell may not usher in a new era of equality law. But in evaluating equality claims, courts may be drawn to look at some mix of the nature of the interest protected and legislative classification. Simply accepting that Cleburne closed the constitutional canon on all disability claims does not sufficiently engage these evolving notions of equality.
Many areas of state regulation – including family law and voting – facially, unnecessarily and unjustly discriminate on the basis of disability. These claims may not be brought and won under the federal Constitution, at least not at first. But several state constitutions either explicitly or through judicial interpretations offer some form of heightened scrutiny for classifications drawn on the basis of disability. One of the constitutional lessons of the last 20 years is that state courts can be the laboratories for constitutional innovations that can work their way into federal understandings.
Third, there has been important scholarly work examining, from a social movement perspective, how groups construct their constitutional cultures. This happens both inside and outside of formal judicial and legislative processes, and is an ongoing dialogue between interest groups, judges and legislators. Thinking about disability law as an ongoing struggle to enforce existing statutory rights, rather than an attempt by a marginalized group to create its own understandings of what it means to be equal under the law, tends to separate research about disability law from scholarly work on constitutional culture. In my view, this is unfortunate (and I made my own modest attempt at bridging the gap here).
Constitutional law reflects our highest aspirations as a people. Its current resting place is not up to this task, and this important conversation must continue.