The Epistemic Function of Fusing Equal Protection and Due Process
24 Pages Posted: 15 Aug 2019
Date Written: August 14, 2019
The fusion of Equal Protection and Due Process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what rights are truly fundamental and a focus on who lacks fundamental liberties helps judges learn which groups need the special protection of heightened review under Equal Protection.
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