Apologia for a general doctrine of substantive equality and discrimination

Abstract

ABSTRACT This article reconstructs and defends the judicial doctrine variously called ‘rationality review’, ‘formal equality’, ‘discrimination’, or ‘arbitrariness’. The doctrine is renamed underinclusiveness and is reconstructed as a distributive doctrine of moral rights. It is then defended against claims of formalism and conservatism by showing that it is a substantive, institutionally legitimate doctrine of equality and discrimination.