Abstract

Like Owen Fiss's foundational article, Groups and the Equal Protection Clause, this is an essay about the structure and limitations of the principles that control interpretation of the equal protection clause. In some ways, what's remarkable is how much of the current debate follows the tracks Owen laid down over a quarter-century ago. Groups and the Equal Protection Clause identified two mediating principles that might "stand between the courts and the Constitution to give meaning and content to an ideal embodied in the text." One, which Owen called the "antidiscrimination principle," saw the clause as primarily a limitation on the government's power to classify individuals (that is, to make discriminations among them). The other, the "group-disadvantaging principle" that Owen championed, saw the clause as essentially a prohibition on the creation or perpetuation of subordinate classes. Much of the contemporary debate over affirmative action, for example, plays out along precisely these lines. Opponents of affirmative action emphasize its use of a "suspect classification" (race) to deprive individuals of the right to be judged on their own merits. Supporters stress the continuing disadvantaged condition of blacks and Hispanics and argue that race-conscious action is necessary to bring members of traditionally excluded groups into the educational and economic mainstream.

Recommended Citation

Samuel Issacharoff and Pamela S. Karlan, "Groups, Politics, and the Equal Protection Clause" Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory (2003): Article 19.
http://www.bepress.com/ils/iss2/art19