Saturday, October 18, 2008
This week's installment of the "Saturday Evening Review" feature of the blog highlights an article I return to year after year. For an excellent schemata of the continuing debates of equal protection doctrine and theory, it's difficult to find a better article than Julie Nice's, Equal Protection's Antimonies and the Promise of a Co-Constitutive Approach, 85 Cornell Law Review 1392 (2000).
I've been using it as a basis for my introductory lecture on equal protection in Constitutional Law classes since I first read it. I also come back to the scheme throughout the semester.
Nice argues that equal protection jurisprudence has evolved around ten principle "antimonies," defined as "binary discourses" rather than "dichotomies" because they "typically present choices between two plausible albeit conflicting principles." Id. at 1394. Generally, I don't adopt Nice's precise use of language in class, but try to present her "binary discourses" merely as conflicting value judgments and principles. Her goal is to demonstrate how these conflicts might be transcended by what she calls a co-constitutive approach.
Here are her ten antimonies:
assimilation or antisubordination
sameness or difference
backward-looking or forward-looking
blindness or consciousness
classification or classes
intent or effects
public or private
process or substance
singular or multiple [identities]
fixed or fluid [identities]
She illustrates her discussion of each of these conflicting notions with a brief discussion of doctrine and theory. Post-2000 cases and theories update but do not alter the usefulness of her scheme. For those familiar with equal protection doctrine and theory, Nice's scheme does not readjust one's insights. But as a methodology for presenting the often unwieldy world of equal protection jurisprudence, it is a true classic - useful, enduring, and adaptable.