Equal Protection Incorporation

Abstract

In order to preserve a broad field of play for legislative and administrative action, courts subject most forms of official discrimination to minimal scrutiny under the Equal Protection Clause.' They reserve exacting scrutiny for laws and policies that employ a small number of so-called suspect and semi-suspect classifications, such as race and sex. Why courts apply heightened scrutiny to laws and policies employing these classifications, rather than others such as age, disability, and sexual orientation, is not entirely clear. Although the Supreme Court has articulated criteria for identifying suspect and semi-suspect classifications, none of these criteria, standing alone, is satisfactory, and the Court has not found any principled means of combining them.To fill the justificatory gap, this Article will advance a judicial reading of the Equal Protection Clause that I call equal protection incorporation. The basic idea is borrowed from the Court's due process jurisprudence. Just as the enumerated provisions of the Bill of Rights served as a useful guide to the Supreme Court in determining the scope of liberty protected by the Due Process Clause, so, the core of the argument goes, the forms of discrimination specifically barred by the Constitution's text-such as the prohibitions on race and sex discrimination in voting set forth in the Fifteenth and Nineteenth Amendments-should guide interpretation of the Equal Protection Clause Provisions like the Fifteenth and Nineteenth Amendments provide a textual basis for distinguishing between presumptively valid and presumptively invalid forms of discrimination.