Equal Protection and the Idea of Equality

Abstract

This Article notes the existence of an immense body of historical and contemporary reflection on the idea of equality, a concept explicitly embodied in the constitutional provision for equal protection of the laws. Yet equal protection case law rarely incorporates, even implicitly, any such reflection, in any consistent, general way. This Article ultimately concludes that this surprising and unfortunate state of affairs reflects the overwhelming proliferation of complex and conflicting basic theoretical approaches to the idea of equality. These unfortunate circumstances might be partially remedied through concepts such as community, solidarity, and broad fraternity, but these concepts, in turn, lack the American constitutional stature, weight, and pedigree necessary for such a task.

Keywords: egalitarianism, equality, inequality, Dworkin, Rawls, prioritarianism, sufficientarianism, fraternity, solidarity, community

JEL Classification: K30, K39, K40