Inconsistent Originalism and the Need for Equal Protection Re-Invigoration

Georgetown Journal of Law & Modern Critical Race Perspectives  will be publishing this paper.

Abstract:

After Washington v. Davis, the Equal Protection Clause, as in Plessy v. Ferguson, was interpreted to prevent racial justice for communities of color. The Davis Court announced the intent doctrine; that the Equal Protection Clause only protects those discriminated against pursuant to a discriminatory motive. But as Charles Lawrence announced in his piece entitled The Id, The Ego, and Equal Protection, discrimination is frequently the result of an unconscious mind. By focusing on a motive inquiry, moreover, courts limit remedy to the most overt of discriminatory acts. The evidentiary burden is too high. With the Equal Protection Clause no longer an effective tool for stigmatized minorities, it needs to be re-invigorated to further racial equality.

Those seeking to overturn Davis must, though, grapple with the reality that the original public understanding of the Equal Protection Clause does not render discriminatory acts resulting from unconscious bias unconstitutional. I argue that the Fourteenth Amendment’s original understanding is an anachronism and the future of the intent doctrine must not hinge on the ratifying generation’s formulation. Originalists implicitly agree with this contention. Indeed, Originalists’ equal protection opinions, particularly involving affirmative action, confound anyone with a basic knowledge of the Fourteenth Amendment’s legislative history. Originalists best establish how much the original understanding of the Fourteenth Amendment is unhelpful in dealing with contemporary race issues. The Equal Protection Clause, I argue, must be re-invigorated so that its new understanding reflects both our deepening knowledge of unconscious bias and our appreciation for how a discriminatory motive can be easily hidden.

Download at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1579197

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