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excerpted from: Lucy A. Jewel, The Biology of Inequality, 95 Denver Law Review 609 (Spring, 2018) (493 Footnotes) (Full Document)

 Lucy A. Jewel

Inequality has life or death consequences. Despite marked advances in science and medicine, disadvantaged people live shorter lives and suffer from worse mental and physical health than more advantaged individuals. As this Article shows, this disparity stems not from hunger or other physical forms of deprivation but from the experience of living in stressful disadvantaged environments with little social security and control over one's individual circumstances.

In 1969, Johan Galtung proposed the concept of “structural violence” to explain how bureaucratic and political forces sometimes fail to prevent a preventable death. As an example, Galtung explained that people continued to die from tuberculosis even though modern medicine could easily prevent deaths from this disease. In this instance, death happened because resource-allocation decisions impeded access to modern medicine. Beginning in the 1960s and 1970s, Michael Marmot found a correlation between status and health outcomes in a British civil-servant hierarchy. The higher up an employee was on the social ladder, the lower his risk of death. Marmot labeled this phenomenon “status syndrome.”

Structural violence and status syndrome are not just abstract theories. We are now beginning to understand the mechanics of how this happens in the body. Through the mechanism of stress, social and economic inequality produces measurable changes in the human body at the genetic and synaptic level. These changes produce negative health outcomes in the form of higher disease rates, shorter life spans, and greater chances for becoming mentally ill. Growing up in a disadvantaged environment correlates with greater social and psychological problems, such as anxiety, impulsiveness, and depressiveness. These issues can exacerbate the cycle of poverty and predispose individuals to make choices that place them within the criminal justice system. A disadvantaged environment can also negatively impact cognitive performance, creating a tragic circle as lower cognitive performance creates barriers to education and work, which then obstruct social mobility.

The biological concepts of epigenetics and neuroplasticity shed light on how one's material environment can get under one's skin and into one's genetic and brain pathways. Epigenetics is the study of how environmental stimuli alter the expression of individual genes without modifying the DNA itself. In this context of this Article, epigenetics shows how the stress of social inequality alters the body at the genetic level.

Neuroplasticity shows how inequality alters the brain. Neuroplasticity refers to how different external conditions correlate with brain structures that differ in size and composition. Environmental differences can produce long-lasting changes in brain structure. Moreover, one's material environment impacts the amount of energy, or bandwidth, one has to devote to cognition tasks. A frenetic environment full of tasks that must be juggled in the mind creates a drag on the mind's cognitive bandwidth that impacts performance on cognitive tests, casting doubt on the theory that intelligence is a pure product of internalized traits.

Embodied inequality is both durable and inheritable, but it is not everlasting. Durability comes from the fact that exposure to stress early in life has long-lasting consequences to endocrinal, hormonal, and metabolic systems. These environmentally mediated biological effects can also be passed down from one generation to the next, in utero through the placenta, through the father's sperm, or through maternal behavior. Although embodied inequality is durable and inheritable, it is also reversible. If the material environment that triggers these changes is altered, the changes can be reversed. In this way, embodied inequality does not lend itself to a rigidly deterministic view of biological outcomes.

While exposure to certain environmental agents, such as environmental toxins and hazardous chemicals, can produce negative impacts on the human body, this Article focuses on biological changes mediated by social agents, specifically the relationship between stress and economic inequality. Stress is the underlying mechanism by which poverty can get under the skin and inside the brain. For humans, stress is defined in the scientific literature as involving “early maltreatment, conflict-laden familial relationships, stressful life events, and adverse physical and social conditions--often occasioned by lower socioeconomic environments.”

However, extreme circumstances are not required for stress to become embedded. Socioeconomic status (SES) is a reliable proxy for the kind of stress that can become embodied. Living in poverty, even when it does not involve explicit abuse or trauma, nonetheless creates an especially acute kind of stress because “it unites individual and societal lack of control, creates unpredictable adversity, sets conditions that leave people unable to respond, and creates a [deep] sense of helplessness and despair.” Michael Marmot characterizes stress as “arising from the inability to control our lives, to turn to others when we lose control or to participate fully in all that society has to offer.” Embedded stress can derive from such commonplace experiences as a bad marriage or social isolation. In this context, there is also an intersectional aspect to stress--racial discrimination functions as a “qualitatively distinct stressor.”

Finally, as developed in Section II.A. of this Article, the stress of not having control over one's life is deeply connected to neoliberalist policy. The logic of neoliberalism places each individual in the driver's seat. There is no justification for a collective safety net--each individual actor is able to make their way in the market, and if they cannot, there is something flawed within them. The experience of working and living in this roiling sea of competition creates, for individuals with little power, the exact kind of randomized stress that becomes biologically embedded.

These new scientific theories challenge the idea that individual characteristics are most responsible for how one's life turns out. This is just not the case if one's environment contributes to biological and neurological changes, which in turn produce negative health and cognitive outcomes. “Social selection” is the theory most aligned with an individualistic explanation for life outcomes. Social selection posits that individuals select an environment that most aligns with their innate characteristics and cognitive ability. For instance, children who enjoy reading will encourage parents to set up a home environment that supports literacy. Social selection theory puts the individual first.

On the other hand, “social cause” theory holds up the material environment as a causal factor for the negative health and cognitive outcomes experienced by disadvantaged persons. If an impoverished and stressful environment changes a person's health for the worse at the epigenetic level and negatively impacts the person's brain pathways, the individual lacks complete control over his or her life destiny. Thus, epigenetics and related theories of neuroplasticity challenge a core narrative of liberal individualism.

Because embodied inequality corroborates a social cause theory--that material conditions (rather than individual choice or innate ability) contribute heavily to outcomes--this lends support for the mobilization of collective policy solutions. Here, the hard science empowers new rhetorical approaches that might reframe legal debates about poverty and inequality. The science turns a rigidly deterministic approach to outcomes (you end up where you end up because of your internal merit and cognitive ability) on its head. While social Darwinism supports a view that inherited, predetermined traits will predict where you end up in life, the science of embodied inequality challenges that view by recognizing that the material environment plays a causal role in life outcomes.

Moreover, the science behind embodied inequality supports progressive theories such as Professor Martha Fineman's vulnerability theory, which contends that the state should provide a support network for those in our society who lack control over their own circumstances. We now have new science-based arguments that can be used to challenge a host of neoliberal policies-- precarious work structures, work schedules, school discipline, mass incarceration--that, as a whole, remove control and stability from individuals' lives. These scientific theories strengthen the argument that we can and should return to a jurisprudential time when large-scale collective solutions to social problems were both entertained and implemented.

Part I of this Article explores the science, specifically epigenetics and neuroplasticity, reviewing the theories as they relate to both animals and humans and describing the impact that embodied inequality has on life outcomes.

Part II considers how embodied inequality interacts with both rhetoric and policy. Section II.A. illustrates how these new scientific discoveries can be used to reframe powerfully the individualistic rhetoric surrounding inequality and poverty. Section II.B. develops both small-scale and large-scale prescriptions that, as a whole, might improve individuals' material environment and reduce exposure to toxic stress. Included in this discussion are small- and large-scale initiatives that would shore up social security for those most affected by stressful and uncontrollable material environments.

Then, Part III applies the science to specific areas of the law--constitutional law, workplace law, and public-education law. These new scientific theories can be applied to generate novel constitutional theories concerning equal protection. The biology of inequality is relevant for considering whether being poor equates to being in a suspect class, which would trigger higher levels of scrutiny for government discrimination. The science is also relevant for determining whether or not robust governmental remedies for past discrimination are appropriate, if that discrimination can be biologically traced.

From a more specific standpoint, the science might be applied to reform the legal structures that undergird workplace law and public-education law. In the context of work, more worker protection would provide families and children shelter from the stress of living without control, which would in turn ameliorate many of the biological effects of disadvantage. Public education is relevant to this Article because initiatives that foster stable and integrated public schools correlate with positive collateral effects in the material environment (reduced pockets of concentrated poverty, more residential integration). Good, integrated (racial and socioeconomic) public schools can slow down or halt some of the detrimental biological effects mediated by disadvantaged living situations.

. . .

Whether it is at the genetic level or in the brain, toxic and stressful effects related to poverty and discrimination can “get under the skin.” Embodied inequality challenges traditional narratives that assume that individual genes and individual behavioral choices are the primary causal agents for social outcomes. The violent injustice of embodied inequality (experienced in disparate health outcomes and age spans) can fuel progressive legal solutions that might lessen the harshness of these deleterious biological and health outcomes.

From the standpoint of law-related rhetoric, the biological embodiment of inequality adds, in a very novel way, scientific legitimacy to arguments for remedying structural inequality and poverty. In the framework of George Lakoff, the science affords a rhetorical opportunity to shift the debate toward a frame of collective nurturance and caring, a frame that ultimately has the capacity to heal.

Potential legal and policy solutions include broad-based solutions that would make the U.S. landscape more socially democratic and more nurturing. Small-scale and large-scale solutions designed to ameliorate the structural conditions that perpetuate poverty and racial oppression should, based on the scientific theories, also heal the biological harms that flow from these wounds. To the extent that studies are able to connect specific biological harm to recurring experiences of racial subordination, these scientific theories support radical jurisprudential approaches, including evaluating whether poverty is a suspect class characteristic and whether race-based remedies, such as affirmative action, can be used to remedy or compensate for past and continuing biological harm, which can be traced to a causal chain of de facto and de jure discrimination.

On a more discrete level, the science also supports concrete legal remedies applied universally to remedy inequality, such as interventions in the workplace and in public education. In the workplace, this Article suggests enacting changes that would give employees more control and certainty over work. For public education, the point is to promote curative environments, the brick-and-mortar school itself as well as the collateral effects that flow from the presence of good (integrated) schools. With public education, local, state, and regional action might be more pragmatic to achieve these initiatives than reliance on federal rights.

The theories discussed in this Article--that the structure of inequality can become embodied and heritable--raise intense policy and moral questions. The crushing mental and physical consequences suffered by individuals living in disadvantage are now visible through the legitimizing lens of science. While the science of disadvantage is still in a nascent stage, the data set is growing. The stress of poverty and discrimination can literally make one sick. In comparison with more advantaged individuals, a person saddled with inequality's negative health and mental effects does not enjoy a level playing field. In this context, the hyper-individualistic mantra “every man for himself” conflicts with the very idea of equal opportunity. The biology of inequality, as developed in this Article, supports the marshaling of collective resources to promote deeper economic and racial equality. Within the longstanding conflict between libertarian individualism and democratic communitarianism, these new theories can shift the pendulum toward potent healing solutions.

Professor of Law, University of Tennessee College of Law.