The Emerging Third Strand in Equal Protection Jurisprudence: Recognizing the Co-Constitutive Nature of Rights and Classes

Abstract:     
This article posits the emergence of a third strand in Equal Protection jurisprudence, one that expands conventional two-strand Equal Protection analysis, which applies heightened scrutiny if a right is fundamental or a class is suspect by treating the interaction between rights and classes as mutually constitutive. This development Professor Nice closely examines a prominent trilogy of “outlier” Supreme Court decisions, Romer v. Evans, Plyler v. Doe, and M.L.B. v. S.L.J., and argues these decisions effectively endorsed a co-constitutive understanding to justify the invalidation of governmental discrimination. In each decision, the Court departed from its conventional focus on a fundamental right or a suspect class, concentrating instead on the denial of a right that was particularly important to the relatively vulnerable class that had been targeted by the government’s action. Drawing upon constitutive theory from Law and Society scholarship, Professor Nice suggests the third strand incorporates the insight that law and society mutually constitute one another, recognizing that rights are constituted in part by which classes hold them and that classes are constituted in part by which rights they hold. In a final section, she shows how the third strand coheres with prevalent constitutional theories, including Ely’s representation-reinforcement, Ackerman’s implied ratification, Dworkin’s independent interpretation of first principles, and Lessig’s translation.

Number of Pages in PDF File: 64

Keywords: constitutional law, equal protection, discrimination, outlier, Romer, Plyler

Accepted Paper Series