Experimentalist Equal Protection

Elsewhere Garrett and Liebman have recounted that though James Madison is considered the Father of the Constitution, his progeny disappointed him because it was defenseless against self-government\u27s mortal disease -the oppression of minorities by local majorities-because the Framers rejected the radical structural approach to equal protection that Madison proposed. Nor did the framers of the Fourteenth Amendment\u27s Equal Protection Clause and federal courts enforcing it adopt a solution Madison would have considered effectual. This Article explores recent subconstitutional innovations in governance and public administration that may finally bring the nation within reach of the constitutional polity Madison envisioned To explain how Madisonian governance mechanisms can solve the problem of equal protection, the authors turn to the thinking of another homegrown practical philosopher who was ahead of his time, John Dewey. Dewey sets out what he calls an experimentalist problem-solving method for curing the equal protection ills Madison diagnosed In two core civil rights contexts, public school reform and workplace discrimination, solutions both Madisonian and Deweyan already point the way to an experimentalist equal protection regime that remains well within our reach. Such experimentalism may not only open our rigid, tepidly enforced equal protection doctrine to an evolving, problem-solving approach, but in the process transform democratic institutions and community

The Return of Noncongruent Equal Protection

Contemporary equal protection doctrine touts the principle of congruence: the notion that equal protection means the same thing whether applied to state or to federal laws. The federalism-tinged equal protection analysis at the heart of Justice Kennedy’s opinion in United States v. Windsor, however, necessarily violates the congruence principle. Commentators and courts—especially those deciding how Windsor’s federalism should affect the ever-growing number of state same-sex marriage cases—have so far failed to account for Windsor’s noncongruent equal protection, much less ask whether noncongruence is generally desirable, and if so, what form it should take. This Article draws answers to those questions from the Supreme Court’s alienage discrimination cases, which offer three distinct models of noncongruence, each of which is reflected in Windsor. The alienage cases show that instead of applying different levels of scrutiny to federal and state laws, a better understanding of noncongruence would allow different levels of government to assert different interests in defending their laws. By reconstructing and evaluating the ways that structure and rights intersect in the alienage cases, this Article considers for the first time what the return of noncongruent equal protection could mean both for cases that follow Windsor and for equal protection doctrine more broadly

American Equal Protection and Global Convergence

Commentators have noted that equal protection doctrine is in a state of transformation. The nature of that transformation, however, is poorly understood. This Article offers a clearer view of the change underway. This Article is the first to reveal and synthesize three major trajectories along which the U.S. Supreme Court has begun to move. First, the Court has begun to blur the line that it previously drew between facial discrimination and disparate impact. Second, the Court has begun to collapse its previously established tiered standards for reviewing discrimination. These two trajectories combine to produce a third trajectory of change: by blurring the distinction between facial discrimination and disparate impact, and by collapsing tiered review, the United States’ equal protection doctrine is converging with equality jurisprudence from peer jurisdictions abroad. After describing these changes, we argue that the collective wisdom of foreign jurisdictions should serve as persuasive authority encouraging the United States to continue along its current trajectories of doctrinal reform. We contend that foreign jurisdictions have served as laboratories of doctrinal innovation from which the United States could learn

Congressional Devolution of Immigration Policymaking: A Separation of Powers Critique

For roughly a decade, federal legislation has devolved to the states some of Congress\u27s authority to adopt immigration policies that discriminate against permanent resident aliens. Equal protection challenges to discriminatory state policies so authorized by Congress raise the knotty issue of the appropriate scope of judicial review. Courts remain divided. The source of the difficulty is that the equal protection congruence principle is not applicable to alienage discrimination. Unlike equal protection cases throughout most of constitutional law, the judiciary deploys different standards of judicial review in alienage discrimination cases depending on whether the discrimination arises under federal or state law. Applying a highly deferential standard of review, courts normally uphold congressionally enacted immigration policies discriminating against aliens. By contrast, courts normally invoke strict judicial scrutiny to find state alienage discrimination unlawful. Congressional devolution legislation authorizing states to adopt policies that discriminate against aliens spawn equal protection challenges that do not fit neatly into either category of judicial review: the controversies entail state alienage discrimination but the discrimination being challenged is congressionally authorized. Devolution presents the question whether Congress should be able to immunize the states from strict judicial scrutiny by authorizing the states to adopt discriminatory immigration policies that Congress could itself adopt. That question is the subject of this Article