Abstract

In retrospect, Owen Fiss's classic article advocating an anti-subordinationist rather than anti-discriminationist interpretation of the Equal Protection Clause of the Fourteenth Amendment, was burdened by three missteps, all of them avoidable. First, Fiss accepted rather than resisted or reformed the Supreme Court's "State Action" requirement, unduly compromising the reach of his alternative principle. Second, along with virturally the entire community of constitutional scholars of the 1970s, Fiss assumed that the clause would be enforced by the judiciary against errant legislation, rather than by Congress itself. He accordingly tied the phrase to jurisprudential assumptions and restraints appropriate to adjudicative, court-made and court-centered law that then undercut the logic of an anti-subordinationist (but not anti-discriminatory) interpretation of the Clause. And third, he failed to develop an understanding of the "moral point" of law, of constitutionalism, and of equal protection, which would cleanly imply an anti-subordinationist rather than anti-discriminatory interpretation of the clause. The result is that against an undisturbed background constitutional and legal jurisprudence, even Fiss's powerful articulation and defense of the anti-subordination principle remains an anomolous rather than natural interpretation of the clause. My article first identifies and then briefly attempts to correct these missteps.

Recommended Citation

Robin West, "Groups, Equal Protection and Law" Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory (2002): Article 8.
http://www.bepress.com/ils/iss2/art8