Paternalism, Tolerance & Acceptance: Modeling the Evolution of Equal Protection in the Constitutional Canon

Abstract

Paternalism, Tolerance & Acceptance: Modeling the Evolution of Equal Protection in the Constitutional Canon proposes a legal taxonomy through which we can model changes in interpretations and applications of anti-discrimination principles to best understand the evolution of equal-protection doctrine. The goal for doing so is two-fold. First, through a careful exegesis of a wide range of equal-protection cases from the past sesquicentury, the analysis provides a positive theory to chart how respect for minority rights can progress within a given doctrinal space. Second, the analysis provides an unabashedly normative assessment of how closely a given legal regime comes to accepting and celebrating the inherent dignitary interests of marginalized groups and the extent to which its jurisprudence begins to subvert subordination practices. Consequently, the Article attempts to trace both how far we have come and to criticize the potential shortcomings of the extant body of jurisprudence from the Supreme Court on issues related to equality. In advancing this evolutionary model of civil-rights jurisprudence, the Article charts the key characteristics of the three stages in the development of equal protection under the law: paternalism, tolerance and acceptance. In the process, the Article scrutinizes and reassesses some of the most canonical decisions in the civil-right firmament and considers how these purported hallmarks of progressive jurisprudence — from Justice Harlan’s prescient dissent in Plessy v. Ferguson and the Supreme Court’s rare moment of post-Reconstruction racial awakening in Strauder v. West Virginia to Mendez v. Westminster and Brown v. Board, right through the modern-day sexual-orientation triumvirate of Lawrence v. Texas, Windsor v. United States and Obergefell v. Hodges — fell short in critical ways. In the end, the goal of this Article and the model it presents is to encourage a more robust and fulsome notion of equal protection — one that is proactive rather than reactive; one that affirmatively renounces, rather than stays silent on, supremacist ideologies; and one that uses the legal machinery of the state to accept and celebrate the inalienable rights and worth of individuals who are members of targeted groups.