In response to Lynda Dodd's question, I recall using the phrase "shadow constitution" or "shadow constitutional rights" back in the 70s for the kind of rights to subsistence urged by Frank Michelman in his article "On Protecting the Poor Through the Fourteenth Amendment," 83 Harv. L. Rev. 7 (1969). The thrust wasn't that this was an opposition constitution, by analogy to the shadow cabinet -- the sense Linda Greenhouse seems to have had in mind. The idea was rather that these rights might not be fully judicially enforceable for institutional and other reasons (no taxation without representation, etc), but might nonetheless exist as "shadow constitutional rights" influencing judicial interpretation -- as with the treatment of subsistence as a constitutionally significant ground for heightened procedural due process protection in Goldberg v Kelley, or the idea that distinctions in legislative programs might get heightened scrutiny under equal protection when they bear heavily on claims to economic subsistence (the idea rejected in Dandridge v. Williams).
I think I probably used the phrase in my article "Procedural Justice and Substantive Rights," in Nomos 18, Due Process (1977) -- I'd check, but I'm home and don't have a copy of it here. It would be worth checking whether Michelman used the phrase in his 1969 article. I may have been quoting him in that 1977 piece, but in any case if the phrase wasn't his, the idea was. For all I can recall, the phrase may have been knocking around in "constitution and the poor" articles during that period more generally. The phrase may have stuck in someone's mind and popped back out later to be used in Greenhouse's sense. Another person who wrote in the same vein was Peter Edelman -- who during the Clinton years lost a federal judgeship on account of it. Shadowed by it, I guess one could say. Tom Grey Stanford Law School [EMAIL PROTECTED]
