'Unexplainable on Grounds Other than Race': The Inversion of Privilege and Subordination in Equal Protection Jurisprudence
86 Pages Posted: 26 Mar 2013
Date Written: September 09, 2003
In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment’s Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.
First, Professor Hutchinson examines the various meanings ascribed to equality, the difficulty in finding one meaning of equality under the Fourteenth Amendment, and how the Supreme Court has recognized that it should have a role in protecting subjugated groups.
Second, the article presents Professor Hutchinson’s inversion thesis, which argues that the Court has stopped acting as the protector of historically disadvantaged groups and now provides historically privileged classes judicial solicitude.
Finally, this article recommends that, as an alternative, the Court should utilize an antisubordination theory of equality whereby the Court bases constitutional decisions on their demonstrable effect on politically vulnerable and historically oppressed classes.
Keywords: equal protection, Supreme Court, Fourteenth Amendment, race, gender, sexual orientation, LGBT, discriminatory intent, colorblindness, privilege, oppression
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