[A] History [Of Discrimination] Only Goes So Far [in Equal Protection Litigation]

38 Pages Posted: 24 Jun 2016 Last revised: 18 Jul 2018

Date Written: May 28, 2016

Abstract

The Fourteenth Amendment of the U.S. Constitution, through decades of evolving jurisprudence, has become the source of several constitutional rights. As a result, it is often the topic of contentious discussions in the courts and academia. Distinct doctrine and jurisprudence accompanies the Amendment’s Equal Protection Clause and Due Process Clause, rendering each of these clauses individual sources of specific rights and remedies. Focusing on these clauses, this Article identifies a glaring inconsistency, or irony, in equal protection doctrine—specifically, how courts treat a history of discrimination in reviewing an equal protection claim. While a history of discrimination is first considered in establishing and determining the suspectness of a class, it then is ignored in determining whether an equal protection violation against that same class has occurred.

Keywords: Fourteenth Amendment, Equal Protection, Carolene Products Footnote Four

Suggested Citation

Kalmanson, Melanie, [A] History [Of Discrimination] Only Goes So Far [in Equal Protection Litigation] (May 28, 2016). 45 Fla. St. U.L. Rev. (2018) (Online), Available at SSRN: https://ssrn.com/abstract=2786208 or http://dx.doi.org/10.2139/ssrn.2786208

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