Wednesday, February 24, 2010

Nourse and Maguire on the Lost History of Equal Protection

Victoria Nourse, University of Wisconsin Law School and Emory University School of Law, and Sarah Maguire have posted The Lost History of Governance and Equal Protection. The paper, which also appears in the Duke Law Journal, 58 (2009), commences with a substantial review of "class legislation" cases from the early twentieth century. Here is the abstract:
Constitutionalists believe that the Equal Protection Clause died during the early decades of the twentieth century. We aim to correct the record on this claim and, in the process, demonstrate equality's long held aspirations to political theory. Decades before Professor John Hart Ely and public choice, equal protection aspired to be a principle of governance as much as a principle of classification or discrimination. This tradition was not limited as is modern equality law to race, sex, or even caste, but aimed to tie equality to the duties of representatives to govern for all, not simply for some. This Article argues that early twentieth-century equal protection law strove in imperfect ways for a theory of abusive representation; it naïvely hoped that the generality of legislation could bind majorities to minorities. To resurrect and articulate an analogous modern theory would require far more than law-office history; it would require fleshing out what the old theory of equality failed to do: to construct a convergence-forcing method that would tie the fate of legislative majorities to that of minorities. In that spirit, we offer a proposal that emphasizes (à la the new governance literature) the power of "embedded constitutionalism," a proposal that combats abusive representation by forcing the active consideration and deliberation of constitutional values in more powerful institutions" in this case, legislatures.