Equal Protection Clause
In order to preserve a broad field of play for legislative and administrative action, courts do not subject most state action to exacting scrutiny under the Equal Protection Clause. For half a century, the principal exception has consisted of so-called suspect and semi-suspect classifications. Although the Supreme Court has articulated criteria for identifying such classifications, standing alone, none of these criteria is satisfactory, nor has the Court found any principled means of combining them. This Article proposes a judicial reading of the Equal Protection Clause, "equal protection incorporation", that roots the process of identifying suspect and semi-suspect classifications in constitutional text. The approach is loosely modeled on the Supreme Court's incorporation jurisprudence. Just as the enumerated provisions of the Bill of Rights served as a useful guide in determining the scope of liberty protected by the Due Process Clause, so, the core of the argument goes, the forms of discrimination specifically barred by the Constitution's text, such as the prohibitions on race and sex discrimination in the Fifteenth and Nineteenth Amendments, should guide interpretation of the Equal Protection Clause. In addition to trumpeting the utility of equal protection incorporation, the Article justifies the interpretive methodology employed, responds to potential theoretical objections, and describes practical implications.
Dorf, Michael C., "Equal Protection Incorporation" (2002). Cornell Law Faculty Publications. Paper 87.
Virginia Law Review, vol. 88, no. 5 (September 2002)