About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

9 Hastings Const. L.Q. 279 (1981-1982)
The Judicial Process in Equal Protection Cases

handle is hein.journals/hascq9 and id is 297 raw text is: ARTICLES The Judicial Process in Equal Protection Cases By JAMES W. TORKE* Introduction Among the principal issues in American constitutional law is that concerning the extent to which the Supreme Court, in order to give shape and substance to the more open ended constitutional clauses, may go beyond the text in a search for values. For the most part, this particular dispute has centered on the due process clause of the Four- teenth Amendment. The historic era of substantive due process, the incorporation debate, and the contemporary controversy over the Court's recent expansion of fundamental rights-all have served as fo- cal points for a debate not only over the meaning of the due process clause, but also concerning the broader question of the proper role of the judiciary in our constitutional scheme. The other great clause of the Fourteenth Amendment--the equal protection clause-while pro- viding the stage for the greatest constitutional dramas of our time has seemed somehow relatively value neutral, or at least to contain its own values within a relatively forthright mechanical scheme. Although the equal protection clause has been the subject of con- siderable scholarly commentary, such commentary focuses on method- ology and mechanics, not values.1 This aura of value neutrality surrounding the equal protection clause is rooted in the notion that the values which underlie the clause are somehow of a different order-are values that reflect an American consensus or at least are peculiarly fit for judicial articulation and use. * Professor of Law, Indiana University School of Law, Indianapolis. B.S., 1963, J.D., 1968, University of Wisconsin. 1. This focus may be traced to that watershed discussion of equal protection by Tuss- man & tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REv. 341 (1949), which set the pattern of so much of the discussion that has followed. [2791

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most