Civil Rights Article

The New Equal Protection

Vol. 124 No. 3 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 groupbased 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 “libertybased” or “equality-based” dignity claim.