Abstract

Observing that the Supreme Court has rejected Professor Fiss’s constitutional arguments, this Essay argues that a group-oriented analysis of equal protection law brings one quite close to a commitment to social welfare rights, and that such a commitment could not reasonably have be expected from the U.S. Supreme Court in the second half of the last century. It argues as well that Professor Fiss seems to have recognized that the Court could not make such a commitment and structured his doctrinal recommendation in a way that implicitly sought to limit the reach of his group-oriented analysis. It concludes by wondering whether the legal community might not have been further along had Professor Fiss embraced rather than attempted to repress the connection between his analysis and a commitment to constitutionalized social

Recommended Citation

Mark Tushnet, "The Return of the Repressed: Groups, Social Welfare Rights, and the Equal Protection Clause" Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory (2002): Article 7.
http://www.bepress.com/ils/iss2/art7