Waterstone on Disability Constitutional Law

New on SSRN: Michael Waterstone, Disability Constitutional Law (Emory L.J., forthcoming).  The abstract:

As a result of fierce advocacy, people with disabilities have been uniquely successful in securing federal legislation protecting them from discrimination in all areas of life. The modern disability rights movement is engaged in a constant struggle to enforce these rights, both in and out of the courts. There has been little attention to directly using the Constitution to protect the rights of people with disabilities. In a recent project, I interviewed many of the key leaders of the disability rights movement, who confirmed that while they would like to devote more attention to constitutional issues, there is no current short- or long-term constitutional strategy. Rather, these lawyers take the Supreme Court’s decision in City of Cleburne, Texas v. Cleburne Living Center, holding that people with disabilities are only entitled to rational basis review under the Equal Protection Clause, as a given. Their attention has turned elsewhere.

This deconstitutionalization has costs. State laws still facially discriminate against people with disabilities, often people with mental disabilities. Federal legislation is an incomplete tool to challenge the exclusions these laws create. Progressive theorizing of constitutional law is happening, just not regarding disability. Although functionally justifiable, this reluctance to pursue constitutional claims impoverishes the disability rights movement, as constitutional claims engage courts in articulating our core values in a way that statutory claims do not. Disability law can and should do more to fulfill the constitution’s guarantees of Equal Protection and full citizenship. In this Article, I explore what a more progressive future for disability constitutional law might look like. Building on gains by the LGBT movement, I offer specific areas where courts should entertain a more contextualized application of the Equal Protection Clause in disability cases.