Privilege and Punishment: A Failure of Equal Protection

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The Equal Protection Clause is a powerful and flexible tool for enforcing equality. Nevertheless, equal protection doctrine has been unable to restrain a particularly pernicious cause of inequality known as special legislation, which is legislation that singles out an individual or small, identifiable group for benefits or burdens that do not apply to anyone else. Through special legislation, state legislatures and Congress transfer public wealth to named individuals, exempt them from the generally applicable laws, and define the elements of torts and crimes to reach specific targets. This Article considers whether the Equal Protection Clause, which is the Constitution’s most explicit restraint on unequal treatment by government actors, is capable of restraining special legislation. Although special legislation creates significant inequalities, limitations on the scope of the Equal Protection Clause make it inadequate, standing alone, to curtail special legislation. Nevertheless, this Article’s analysis of the Equal Protection Clause reveals the clause’s surprising connection to a number of other clauses of the Constitution; together, these clauses suggest a principle that can restrain special legislation effectively and coherently. This principle – a value of legislative generality – is deeply rooted in the Constitution’s text, history, and jurisprudential underpinnings.This Article is an integral part of a larger project of describing and defining the contours of the Constitution’s value of legislative generality. After describing why the Equal Protection Clause, on its own, fails to restrain special legislation, this Article concludes by demonstrating how the Clause plays a vital role in contributing to an independent and coherent principle of legislative generality.