The New Equal Protection

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Kenji Yoshino

For the Constitution in 2020 conference on The Future of Equality.

Over the past decades, the Court has systematically denied constitutional protection to new groups, curtailed it for already covered groups, and limited Congress’s capacity to protect groups through civil rights legislation. The Court has repeatedly justified these limitations by adverting to pluralism anxiety. These cases signal the end of equality doctrine as we have known it.

The end of traditional equality jurisprudence, however, should not be conflated with the end of protection for subordinated groups. The Court’s commitment to civil rights has not been pressed out, but rather over to collateral doctrines. Most notably, the Court has moved away from group-based equality claims under the guarantees of the Fifth and Fourteenth Amendments to individual liberty claims under the due process guarantees of the Fifth and Fourteenth Amendments. This move reflects what academic commentary has long apprehended — that constitutional equality and liberty claims are often intertwined. I refer to such hybrid equality/liberty claims as “dignity” claims. Based on whether the liberty or the equality dimension of the hybrid claim is ascendant, I call it the “liberty-based” or “equality-based” dignity claim.

The introduction of a third overarching term like “dignity” that acknowledges the links between liberty and equality is overdue. Too much emphasis has been placed on the formal distinction between the equality claims made under the equal protection guarantees and the liberty claims made under the due process or other guarantees. In practice, the Court does not abide by this distinction. The Court has long used the Due Process Clauses to further equality concerns, such as those relating to indigent individuals, national origin minorities, racial minorities, religious minorities, sexual minorities, and women. Conversely, the Court has used the equal protection guarantees to protect certain liberties, such as the right to travel, the right to vote, and the right to access the courts. We need to look past doctrinal categories to see that the rights secured within those categories are often hybrid rights. This Article focuses particularly on the liberty-based dignity claim, because I believe it offers a way for the Court to “do” equality in an era of increasing pluralism anxiety.

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law. You can reach him by e-mail at kenji.yoshino at nyu.edu