Suprerne Court and the Fourteenth Amendment, I: Equal Protection

Abstract

Abstract We are now in a position to pursue the implications both of originalism and of normative minimalism for the constitutional doctrine the modern Supreme Court has fashioned in the name of “equal protection” and for the doctrine it has fashioned in the name of “substantive due process”. No modern constitutional doctrines are more controversial. lo what extent are modern equal protection doctrine and modern substantive due process doctrine consistent with the originalist approach to constitutional interpretation? And to what extent are they consistent with the minimalist, or Thayerian, approach to the constitutional specification? Although I do not discuss, in this or in the next chapter, every doctrinal development the modern Court has fashioned in the name either of equal protection or of substantive due process, I do discuss the most important doctrinal developments, including the two that are probably the most controversial: those concerning affirmative action and abortion. My concern here is not with every detail of the developments I discuss, but only with the basic features of those developments: I want to inquire into the implications of originalism and of normative minimalism for the basic features of the most important doctrinal developments the modern Court has fashioned in the name either of equal protection or of substantive due process. In surveying the basic features both of the Supreme Court’s modern equal protection doctrine and of its modern substantive due process doctrine, I aim to determine the extent to which, if any, Robert Bork is right in asserting that “[o]f the [Fourteenth Almendment’s three clauses, two have been pressed into the service of judicial imperialism-the due process and equal protection clauses My concern here is not with formal, as distinct from substantive, matters.