The Epistemic Function of Fusing Equal Protection and Due Process

24 Pages Posted: 15 Aug 2019

See all articles by Deborah Hellman

Deborah Hellman

University of Virginia School of Law

Date Written: August 14, 2019

Abstract

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.

Suggested Citation

Hellman, Deborah, The Epistemic Function of Fusing Equal Protection and Due Process (August 14, 2019). William & Mary Bill of Rights Journal, Forthcoming; Virginia Public Law and Legal Theory Research Paper No. 2019-46. Available at SSRN: https://ssrn.com/abstract=3437417

Deborah Hellman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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