Equal Protection’s Antinomies and the Promise of a Co-Constitutive Approach

Abstract

This article explores how a central insight of Law and Society scholarship – that law and society are mutually constitutive – explains and informs Equal Protection jurisprudence. Professor Nice describes the state of equal protection discourse as caught in perpetual antinomic debates, with courts typically endorsing the more conservative alternative within such debates, including: (1) adopting assimilation (not anti-subordination) as the goal; (2) treating subordinated persons the same as (not different than) dominant persons; (3) looking backward toward remediation (not forward toward substantive equality); (4) requiring blindness (not consciousness) of the relevant trait; (5) focusing on the classifying trait (not the disadvantaged class); (6) requiring proof of prejudicial intent (not merely disproportionate effects); (7) limiting equal protection to public (not private) action; (8) focusing on process (not substance); (9) understanding identity as singular (not multiple); and (10) treating identity as fixed (not fluid). Professor Nice suggests that, because law and society are mutually constitutive, choosing between these antinomic alternatives is unnecessary and also impairs our understanding of how socio-legal meaning is shaped. Borrowing an example from her prior work, she argues the Supreme Court relied on a co-constitutive understanding to invalidate laws in a trilogy of prominent outlier cases (Romer, Plyer, M.L.B.), not because they infringed a fundamental right or discriminating against a suspect class, but because they excluded a class from the enjoyment of an important right, the lack of which marked the class as inferior.

Keywords: constitutional law, equal protection, fundamental right, suspect class, outlier