The Emerging Third Strand in Equal Protection Jurisprudence: Recognizing the Co-Constitutive Nature of Rights and Classes
Julie A. Nice   |   1999 U. Ill. L. Rev.

In this article, Professor Nice identifies an emerging third strand in equal protection jurisprudence. She first summarizes the history of equal protection doctrine and the development of its first two strands-suspect classes and fundamental rights. Professor Nice then suggests that the meanings of rights are understood by the classes that do and do not hold them, and classes are understood by the rights they do and do not hold. This approach integrates the concepts of rights and classes, thus enhancing equal protection doctrine. To illustrate the emerging third strand, Professor Nice examines three Supreme Court cases-Romer v. Evans, Plyler v. Doe, and M.L.B. v. S.L.J.-that she terms outlier cases because of the Court's departure from traditional two-strand analysis. Professor Nice con-tends that these cases are better understood as involving the Court's implicit use of a third-strand approach. Professor Nice then analyzes the third-strand approach in light of four prominent theories of constitutional interpretation and sug-gests that her analysis comports with these principles. She concludes that equal protection requires courts to consider, in addition to the suspect classes and fundamental rights strands, a co-constitutive third strand that evaluates the interaction between rights and classes when determining whether heightened scrutiny should apply. This ap-proach, Professor Nice posits, could result in a functional, rather than stagnant, application of the equal protection mandate.
* Visiting Professor, University of Michigan Law School and Associate Professor, University of Denver College of Law. I am grateful for helpful comments from Mary Becker, Alan Chen, Christine Cimini, John Ely, Dan Farber, Jennifer Levi, the participants at Martha Fineman's Feminism and Legal Theory Workshop at Cornell Law School, and especially Martha Ertman.