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91 Harv. L. Rev. 1 (1977-1978)
Foreword: Equal Citizenship under the Fourteenth Amendment

handle is hein.journals/hlr91 and id is 20 raw text is: NOVEMBER 1977 HARVARD LAW REVIEW1 THE SUPREME CQURT 1976 TERM FOREWORD: EQUAL CITIZENSHIP UNDER THE FOURTEENTH AMENDMENT Kenneth L. Karst* W HAT is the substance of substantive equal protection? The preeminent c6nstitutional development of the past quarter century has been the enlargement of the guarantee of the equal protection of the laws.' Yet today hardly anyone has a kind word for the state of the Supreme Court's equal protection doctrine. Within the Court the 1976 Term produced new expres- sions of discontent. Justice Marshall called the Court's analytical approach to equal protection cases outdated and intellectually disingenuous. 2 And Justice Rehnquist complained that the Court's equal protection decisions, once they went beyond the area of race and national origin, amounted to nothing but an endless tinkering with legislative judgments, a series of conclu- sions unsupported by any central guiding principle. I In any period of constitutional creativity, the construction of coherent doctrine can be expected to lag behind the Court's inno- vative decisions. In the case of current equal protection doctrine, however, the gap between results and articulated theory is un- usually wide. Responsibility for this gap must be shared by the * Professor of Law, University of California, Los Angeles. A.B., University of California, Los Angeles, 195o; LL.B., Harvard, 1953. My colleagues Howard Horowitz, Gary Schwartz, Murray Schwartz, and Stephen Yeazell commented on a draft of this Foreword with the kind of care and sympathy that make membership in our community a joy. ' U.S. CONSr. amend. XIV. Throughout this Foreword, references to the equal protection clause are intended to include the guarantee of equal protection which the Supreme Court has found in the due process clause of the fifth amendment as a limitation on the federal government. See Bolling v. Sharpe, 347 U.S. 497 (1954); Weinberger .v. Wiesenfeld, 420 U.S. 636, 638 n.2 (i975). The two equal protection guarantees are for most purposes congruent, as I have shown in my article, The Fifth Amendment's Guarantee of Equal Protection, 55 N.C.L. REv. 541 (1977). 2 Beal v. DIoe, 97 S. Ct. 2366, 2396 (1977) (Marshall, J., dissenting). ' Trimble v. Gordon, 97 S. Ct. 1459, 1469 (I977) (Rehnquist, J., dissenting). VOLUME 91 NUMBER 1

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