Equal Protection, Due Process, and the Stereoscopic Fourteenth Amendment
32 Pages Posted: 16 Feb 2002
In his famous concurrence in Railway Express Agency v. New York, Justice Jackson offered a powerful vision of the relationship between equality and liberty. The two major strands of existing case law and scholarship about the relationship between the equal protection clause and the (substantive) due process clause find their roots in Justice Jackson's observations. One strand treats the clauses as virtually fungible - different verbal formulations that produce essentially identical results. The other strand stresses the differences between the two clauses and argues that a court faced with a constitutional challenge should apply one clause rather than the other, either because the claim is intrinsically better addressed under one rubric or because, as a tactical matter, precedent forecloses resort to the other clause.
This essay builds on Justice Jackson's concurrence to offer a different approach. It examines the possibility of looking at questions "stereoscopically" - through the lenses of both the due process clause and the equal protection clause - and suggests that this approach can have synergistic effects, producing results that neither clause might reach by itself. I begin with two cases where the Supreme Court viewed the issue stereoscopically. Harper v. State Board of Elections shows how this approach can trigger doctrinal development - in that case, the articulation of a heightened standard of review for cases involving restrictions on the franchise. M.L.B. v. S.L.J., by contrast, reflects a doctrinal area - the access of indigent litigants to the courts - in which the Court's jurisprudence remains anchored in simultaneous reliance on principles of due process and equal protection because fundamental rights analysis can provide a limiting principle for claims of equality.
I then turn to two cases where the Court failed to view the issue before it stereoscopically. In Romer v. Evans, recognizing the liberty interests at stake would have put the Court's equal protection decision on a firmer footing, by providing a conceptual underpinning for the holding that singling out gays, lesbians, and bisexuals constituted impermissible animus, rather than a legitimate distinction. By contrast, in Bush v. Gore, the Court's failure to see the due process-based dimensions of the right to vote blinded it to two fatal flaws in its equal protection analysis of the Florida recount. Thus, we might revise Justice Jackson's observation in Railway Express to say that just as courts can take no better measure to assure that laws will be just than to require that laws be equal in operation, so too, they often can have no better measure of how to achieve the requirements of equality than to understand the underlying claims of justice embodied in the due process clause's concept of liberty.
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