A] History [Of Discrimination] Only Goes So Far

Abstract

Listen

Translate article

The Fourteenth Amendment of the U.S. Constitution, through decades of evolving jurisprudence, has become the source of several constitutional rights. As a result, it is often the topic of contentious discussions in the courts and academia. Distinct doctrine exists around the Amendment’s Equal Protection Clause and Due Process Clause, rendering each of these Clauses individual sources of different, specific rights or remedies. Narrowing in these Clauses, this Article identifies a glaring inconsistency, or irony, in equal protection doctrine — specifically the treatment of a history of discrimination first in its consideration when establishing a class and determining its suspectness, then later in determining whether a violation of equal protection has occurred.