Where Does Institutionalization Come From?

Is It Class Warfare?

Is There A Way Around This?

Or, perhaps we could take the approach used by Aristotle, as I mentioned, which you will find in the third book of the Politics:

[W]hether in oligarchies or in democracies, the number of the governing body, whether the greater number, as in a democracy, or the smaller number, as in an oligarchy, is an accident due to the fact that the rich everywhere are few, and the poor numerous. ... [T]he real difference between democracy and oligarchy is poverty and wealth. Wherever men rule by reason of their wealth, whether they be few or many, that is an oligarchy, and where the poor rule, that is a democracy.

Or, we could call the situation you are describing "class struggle." We could then have an approach to social history based on describing the phases of this struggle under changing material conditions of life, and an ethical theory of history based on the effort to establish democracy. This would be a very important intellectual development in human civilization, among the most important of the last 200 years, which we would call "Marx."

Is there an advantage in calling this "Institutionalization of Economic Discrimination," and hiding from the reader (perhaps even from ourselves) the 2,500-year history of political ideas that lies behind it?

But did anyone ever actually think that the Constitution prohibited capitalism?

To say that class struggle "can be seen in certain laws and legal concepts" is like saying that physics can be seen in certain aspects of household plumbing. It's accurate, because physics can be seen in every aspect of the universe. It's deceptive, because through grotesque underinclusion it makes physics appear to be about plumbing. The ideas we call "Darwin" can be seen in the shit of a beetle, but they're not about beetle shit. The ideas we call "Marx" can be seen in the US Reports, but they're not about law. This is a confusion between base and superstructure, as described by Marx in the Preface to A Contribution to the Critique of Political Economy.

Is this a primary mechanism or a peripheral example?

This is just the inevitable confusion arising from the category error already noted. Class oppression of the poor by the rich occurs at the base of the social system, and is reflected throughout the cultural superstructure, including in the law. Class struggle therefore involves social revolution, whether the rich are destroying democracy or the poor are instituting it.

So, is what we gain by ignoring the political theory the opportunity to pretend that law can cease imposing injustice without the institution of democracy?

I disagree with David Hirsch's unsigned comment below. I think this draft is ineffective because it leads your reader away from the larger ideas, into losing the forest for the trees. I think the route to improvement is to figure out what you are saying in the larger context that has attached to your idea over the past 2,500 years or so.

This was quite effective. You might want to address the most common argument justifying many of these policies; namely that the rich are more talented and hardworking than the poor (see the recent Wall Street Journal editorial). For me, cases like San Antonio School District v. Rodriguez highlight the fact that we actively use the law to deny the poor an equal opportunity. Was there a good reason, other than tradition, for school funding to come from property taxes within the district rather than general funds from the state?

Institutionalized Economic Discrimination

-- By KensingNg - 24 Apr 2012

My favorite line from this course is probably: "we are kind to the rich, and just to the poor". I understand this line to be suggesting the presence of institutionalized economic discrimination in favor of the rich against the poor.

What is Institutionalization?

Drawing upon the discussion of personal racism versus institutionalized white supremacy, one can analogize that institutionalized economic discrimination can, even in the absence of individuals exhibiting a personal preference for rich people, help the rich at the expense of the poor. Institutionalization (as I understand it) is the collection of laws and societal rules which favor a particular ideology. Once an idea has been institutionalized, it need no longer remain in the minds of the people in order to take effect. The institutionalization of an idea can help encourage its spread by integrating the idea into societal norms that people then internalize, but even if people do not personally believe in the institutionalized idea their loyalty to the system as a whole might be sufficient to induce them to enforce the idea.

How Does The Institutionalization of Economic Discrimination Manifest Itself?

Institutionalization of economic discrimination can be seen in certain laws and legal concepts. For instance, the system of property ownership protects those with property, giving an advantage to the rich (who simply have more property than the poor). Many other legal fields, such as contract law, focus on the importance of encouraging economic growth and development. In Kelo v. City of New London, the courts determined that economic growth was sufficient to allow for the government to exercise eminent domain on behalf of a developer. Through access to greater economic resources, the wealthy are often able to create more economic growth than the poor, and are thus favored. In addition to helping the rich, laws are often reluctant to help the poor. San Antonio School District v. Rodriguez noted that there was no reason for the court to invalidate a law tying public education funding to local property taxes, since "at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages." The unequal advantages are the root of institutionalized economic discrimination.

Furthermore, the procedural process of the legal system is favorable to the rich. Defenders of the status quo sometimes defend the system by asserting that, since lawyers themselves aren’t fit to judge the facts or law of the case, they simply argue vigorously for their client and thereby give them a fair chance to state their case before a jury or a judge who will decide the facts or the law. However, this system only gives a fair hearing to both sides if it is assumed that the lawyers are equally competent. In reality, some lawyers are far more capable than others. These lawyers tend to command higher fees on the legal market, and therefore end up working for the wealthy who can afford their services. The end result is that poor people tend to get lower quality legal representation than rich people. While this is by no means always the case (skilled lawyers may choose to work pro bono or to represent less wealthy clients) it tends to be that the legal market prices quality legal services at a level that only the rich can afford.

Is This The Institutionalization of Economic Discrimination, Or Just The Harshness of Reality?

One counterargument to the idea of institutionalized economic discrimination is that we are simply seeing the natural results of wealth. People with money simply can afford more things, including legal services. The rich have more advantages not because of institutional support to the rich, but simply because they are richer. Rather than helping the rich to the detriment of the poor, law is simply letting the rich reap their natural advantages of wealth, which in turn gives them greater opportunities than the poor.

The problem with this justification for inequality is that law is inherently dedicated to removing natural processes that we deem to be unjust. A strong murderer is naturally able to overwhelm and murder a weaker victim, but everyone would generally agree that the law should intervene to protect the victim. In that same way, it is not absurd to suggest that the law should intervene to protect people who are economically weak. It would be impossible to have an absence of institutionalized ideas; we must choose to either prevent or allow natural processes. By allowing the rich to use their power to the disadvantage of the poor, society is showing a preference for the interests of the rich: an institutionalization of economic discrimination against the poor. Insofar as people believe that economic discrimination against the poor should not be institutionalized, they must work to change society's well-ingrained systems and beliefs.