Destabilizing Due Process and Evolutive Equal Protection

Abstract

One way to think about the relationship between the Due Process and Equal Protection Clauses of the Fourteenth Amendment is to view due process as backward-looking (evaluating a law in light of its historical precedents), and equal protection as forward-looking (evaluating a law in light of its utility for future social projects). Professor Eskridge challenges this contrast. He shows that such a contrast is supported by neither the text and history of the Fourteenth Amendment nor by the Supreme Court's precedents applying the Due Process and Equal Protection Clauses. Due process is just as often destabilizing as equal protection, which like due process often defers to past practices. Notwithstanding the analytical vacuity of the backward-looking/forward-looking contrast, the two clauses display potentially different roles for minority groups: The Due Process Clause secures libertarian protections at the retail (individual) level that are important when the group is socially despised, while the Equal Protection Clause potentially offers minorities wholesale (group) level protections when (or if) the Court recognizes their legitimacy as partners in American pluralist democracy.