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“UNEXPLAINABLE ON GROUNDSOTHER THAN RACE”: THEINVERSION OF PRIVILEGE ANDSUBORDINATION IN EQUALPROTECTION JURISPRUDENCE

Darren Lenard Hutchinson*

In this article, Professor Darren Hutchinson contributes to thedebate over the meaning of the Fourteenth Amendment’s Equal Pro-tection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, inits judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same timerequires traditionally subordinated and oppressed groups to utilizethe political process to seek redress for acts of oppression. Accordingto Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.First, Professor Hutchinson examines the various meanings as-cribed to equality, the difficulty in finding one meaning of equalityunder the Fourteenth Amendment, and how the Supreme Court hasrecognized that it should have a role in protecting subjugated groups.Second, the article presents Professor Hutchinson’s inversion thesis,which argues that the Court has stopped acting as the protector of his-torically disadvantaged groups and now provides historically privi-leged classes judicial solicitude. Finally, this article recommends that,

*

Professor, American University, Washington College of Law; Visiting Professor, University of Pennsylvania Law School, Spring 2002. B.A., University of Pennsylvania; J.D., Yale Law School.Earlier versions of this Article were presented at several forums, including the Higginbotham Con- ference at Yale Law School, faculty workshops at American University, Washington College of Law andthe University of Pennsylvania Law School, and the 2002 Mid-Atlantic Law Teachers of Color Confer-ence at Georgetown University Law Center. I am grateful for all the helpful comments I received at these events. I am extremely grateful for the extensive comments and encouragement I received fromPeter Jaszi and Nancy Polikoff. I also received insightful comments from Matthew Adler, Regina Aus-tin, Susan Bennett, Pamela Bridgewater, Sarah Gordon, Jamin Raskin, Kim Scheppele, Terry Smith,Catherine Struve, Amy Wax, Joan Williams, and Richard Wilson concerning the content of the Article.Finally, the following students provided excellent research assistance and support—inside and outside of the classroom: Jessica Brown, Jamie Gaines, Suzanne Newhouse, Shanna Nugent, Wendall Washing-ton, and Audra Wassom. Their research aided in the development of this Article and will contribute to subsequent installments of my scholarship on equal protection jurisprudence.

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616 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2003

as an alternative, the Court should utilize an antisubordination theoryof equality whereby the Court bases constitutional decisions on their demonstrable effect on politically vulnerable and historically oppressed classes.

I. I

NTRODUCTION

The Equal Protection Clause of the United States Constitution pro-vides that “no state . . . shall deny to any person . . . equal protection of the laws.”

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The exact meaning of this ambiguous provision has been atthe center of a contentious debate, which began in the Thirty-Ninth Con-gress (which drafted the Fourteenth Amendment), and which persists to-day among jurists, scholars, and attorneys.

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The juridical articulation of the meaning of equality has evolved and shifted over time. In the late-nineteenth century, the Supreme Court construed equal protection solelyas guaranteeing “political” as opposed to “social” equality,

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thus settlinga question that emerged in the Reconstruction-era Congress and thatplagued contemporaneous state-court decisions addressing claims of im-permissible governmental discrimination.

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Under the political/socialrights distinction, discrimination in the so-called social sphere was per-missible as long as equal facilities were provided to the races.

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While theSupreme Court would ultimately overrule the “separate-but-equal” doc-trine,

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it would still face the complicated task of deciding what definitionof equality (or “equalities”) the Fourteenth Amendment mandates. To-day, this question remains open and subject to diverging views. At a

1. U.S.

C

ONST

. amend. XIV, § 1.2. Paul Brest,

Foreword: In Defense of the Antidiscrimination Principle

, 90 H

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. 1, 5(1976) (describing “text and history” of the Equal Protection Clause as “vague and ambiguous”); CassR. Sunstein,

Sexual Orientation and the Constitution: A Note on the Relationship Between Due Processand Equal Protection

, 55 U. C

HI

.

L.

R

EV

. 1161, 1174 (1988) [hereinafter Sunstein,

Sexual Orientationand the Constitution

] (“The scope of the [Equal Protection] Clause and the precise content of theequality norm are of course deeply disputed.”).3. Plessy v. Ferguson, 163 U.S. 537, 544 (1896) (arguing that “in the nature of things, [the Four-teenth Amendment] could not have been intended to abolish distinctions based upon color, or to en-force social, as distinguished from political, equality, or a commingling of the two races upon termsunsatisfactory to either”).4. Nan D. Hunter,

Escaping the Expression-Equality Conundrum: Toward Anti-Orthodoxy and Inclusion

, 61 O

HIO

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T

.

L.J. 1671, 1697 (2000) (arguing that during the period of Reconstruction, “[t]helegal discourse of race rested . . . on the distinction between political and social rights”); Michael W.McConnell,

Originalism and the Desegregation Decisions

, 81 V

A

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L.

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. 947, 1014–23 (1995) (discuss-ing the historical relevance of the “social rights” and “political rights” distinction to the meaning of theEqual Protection Clause).5. In

Plessy

, the Court held:Laws permitting, and even requiring, [the] separation [of blacks and whites], in places where theyare liable to be brought into contact, do not necessarily imply the inferiority of either race to theother, and have been generally, if not universally, recognized as within the competency of thestate legislatures in the exercise of their police power.

Plessy

, 163 U.S. at 544.6. Loving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating state antimiscegenation law despite thefact that marriage was historically viewed as a social relation in the purview of states to regulate);Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (“We conclude that in the field of public education thedoctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”).

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No. 3] INVERSION OF EQUAL PROTECTION 617

minimum, most commentators agree that the Equal Protection Clauseembodies an “antidiscrimination” principle, which requires that statestreat “similarly situated” individuals in the same fashion.

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Other scholarsand jurists have argued that equal protection requires something more—that it secures not only formal, but substantive equality

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and that it mightimpose upon governments an affirmative obligation to undo materialinequality caused by subordination (such as racism and sexism).

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The issue of judicial restraint has also surfaced in debates over themeaning of equality.

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The specter of

Lochner v. New York

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and chargesof judicial overreach influence the Court’s articulation of “equality.”

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To guard against the counter-majoritarian dilemma,

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the Court hasmade a doctrinal choice to limit its most exacting scrutiny of equal pro-tection claims to those laws that burden politically vulnerable—or “sus-pect”—classes.

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Otherwise, courts will defer to the legislative wisdom byassuming the constitutionality of legislative enactments.

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While the sus-pect class doctrine does not mean that members of politically powerfulsocial groups cannot litigate equal protection claims, under heightenedscrutiny review, claims brought by nonsuspect classes will not receive ex-acting review from the Court; these groups, according to the Court’slogic, can adequately defend themselves against unfair legislation in thepolitical branches of government.

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A minority of commentators has criticized the suspect class doctrineby arguing that the Equal Protection Clause is framed in general termsand that a single standard of judicial review should apply to each individ-ual claim of impermissible governmental discrimination.

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Despite thesecritiques, which contest the granting of enhanced judicial solicitude ex-clusively to vulnerable classes, no scholar has argued that the Courtshould construe the Equal Protection Clause as guaranteeing judicial so-licitude exclusively or primarily for the discrimination claims brought bypowerful social classes and that the discrimination claims of vulnerablegroups should normally enjoy a presumption of constitutionality. In fact,most scholars and jurists would likely dismiss this argument as utterly in-consistent with the historical context surrounding the FourteenthAmendment, the intentions of the Framers of the Fourteenth Amend-ment, and the judicial elaboration of the meaning of equality. Despite

7

. See infra

text accompanying notes 37–46.8

. See infra

text accompanying notes 47–54.9

. See infra

text accompanying notes 55–63.10

. See infra

text accompanying notes 100–10.11. 198 U.S. 45 (1905).

See infra

text accompanying notes 106–10 (discussing the impact of

Lochner

on the Court’s Fourteenth Amendment jurisprudence).12

. See infra

text accompanying notes 106–09.13

. Lochner

, 198 U.S. at 75 (Holmes, J., dissenting).14

. See infra

text accompanying notes 128–34.15

. See id.

16

. See infra

text accompanying notes 205–11, 222–35.17

. See infra

text accompanying notes 47–54.

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