The Once and Future Equal Protection Doctrine?
Mario L. Barnes and Erwin Chemerinsky, The Once and Future Equal Protection Doctrine?, 43 Conn. L. Rev. 1059 (2011).
This Essay is the third in a series of pieces exploring elements of the Court’s past and present equal protection jurisprudence. Here, we consider the concept of equality endorsed within the Fourteenth Amendment by looking to constitutional text and structure, and most importantly, the historical moment that produced the Reconstruction Amendments. We argue specifically that even though equality has previously been described as a nondescript or "empty" concept - capable of being interpreted as either a formalist mandate to treat all persons the same or as a means to ensure equal outcomes for certain historically disfavored groups - it should be read in light of the societal changes the Reconstruction Amendments ostensibly sought to achieve in the lives of freed slaves.
We then consider what measure of equality can be ensured given the Court’s contemporary approach to adjudicating constitutional discrimination claims. We critique two of the Court’s jurisprudential innovations in the area of antidiscrimination law as particularly unhelpful: (1) reliance on a tiered-system of analysis for suspect classification claims; and (2) the requirement of the presence of purposeful governmental discrimination, rather than disparate impact, for proving constitutional discrimination claims. We argue that these approaches foreclose all but a very narrow scope of claims and undermine the type of protection the Fourteenth Amendment could and should guarantee, especially in light of its origins.