A Pluralist Theory of the Equal Protection Clause, 11 U. Pa. J. Const’l L. 1239 (2009)
The Constitution is intimately connected with social "groups." Although both the Constitution and the socially relevant groups have changed radically over more than two centuries, at least one general idea has been constant, and it is reflected in both the Constitution's structure and its deliberative background ("original meaning," if you will). My argument in this Article is that the Constitution assumes a particular normative theory about groups in politics, and this theory is pluralism. I am using "pluralism" to mean a political regime along the following lines: successful government must induce all "relevant" (i.e., socially important) groups and their members to invest in and commit to government as a forum for their protection and for their engagement in politics.
Part I of this Article will lay out the Constitution's evolution as a document facilitating the operation of a democratic-pluralist regime. Part II derives from this documentary history and the original purpose of the Equal Protection Clause a pluralist theory of groups and equal protection. Part III will suggest the virtues of such a theory and apply it to some current cutting edge constitutional issues.
Date of Authorship for this Version
Eskridge, William N. Jr., "A Pluralist Theory of the Equal Protection Clause" (2009). Faculty Scholarship Series. 1519.