Mario L. Barnes and Erwin Chemerinsky, The Once and Future Equal Protection Doctrine?, 43 Conn. L. Rev. 1059 (2011), https://digitalcommons.law.uw.edu/faculty-articles/561
Connecticut Law Review
This Essay is the third in a series of pieces assessing Equal Protection Doctrine and jurisprudence. Here, we endeavor to do two things: (1) to utilize constitutional structure, text, and history to interrogate the concept of equality protected under the Fourteenth Amendment; and (2) to critique the Supreme Court's present approach to adjudicating constitutional discrimination claims. With regard to the meaning of equality, we assert that if the text of the Reconstruction Amendments and the stated goals of Reconstruction are used to inform constitutional analysis, then equality should be understood as a substantive rather than formalist concept. Reconstruction, however, was actually a period where political equality for freed slaves was espoused alongside social norms and laws-as evinced by the Black Codes and Plessy v. Ferguson-designed to maintain segregation. Hence, we ultimately advocate for an antisubordination-i.e., focus on the ways that specific persons or groups are harmed based on difference-rather than an anticlassification-i.e., treat everyone the same-understanding of equality. We justify this position by arguing for what equality would have meant, if the country had been truly interested in the full integration of Blacks, post-slavery. Next we assess how any understanding of equality is currently obscured by the Court's insistence on using a tiered-system of analysis for suspect classification discrimination claims and its requirement of the presence of purposeful government discrimination-rather than mere disparate impact-for constitutional discrimination claims. Together, these two approaches have foreclosed all but a very narrow scope of discrimination claims. We conclude by suggesting ways the Court might alter these standards in service to a notion of equality capable of responding to the myriad forms of stigmatizing and subordinating treatment suffered by certain individuals within society.