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59 Tul. L. Rev. 884 (1984-1985)
Is Equal Protection Like Oakland - Equality as a Surrogate for Other Rights

handle is hein.journals/tulr59 and id is 926 raw text is: IS EQUAL PROTECTION LIKE OAKLAND? EQUALITY AS A SURROGATE FOR OTHER RIGHTS WILLIAM COHEN* Professor Peter Westen has demonstrated convincingly that, at least sometimes, decisions under the equal protection clause can be understood only by incorporating constitutional values that are extrinsic to the concept of equality. The problem, he says, results from the obvious point that the fourteenth amend- ment does not require all persons to be treated alike. The core requirement of equality, rather, is that those persons who are alike be treated alike. No standards that derive from the equal- ity principle, however, enable us to determine whether persons treated differently are similarly situated or whether situations subject to different rules are alike. Thus, Westen concludes that the concept of equality in constitutional law is empty or, to paraphrase Gertrude Stein,2 that the trouble with equal protec- tion is that there is no there there. I do not propose to join the lengthy debate spawned by Pro- fessor Westen concerning whether equality has a core meaning of its own. Whether or not he is right about that, a subsidiary point he makes is surely correct. Many decisions that are bot- tomed on the equal protection clause can only be understood by incorporating constitutional values from other sources in the * C. Wendell and Edith M. Carlsmith Professor of Law, Stanford University. Nancy Rapoport of the Stanford Law School class of 1985 provided valuable research and edit- ing assistance. 1. Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982). 2. The trouble with Oakland is that there is no there there. G. STEIN, EVERY- BODY'S AUTOBIOGRAPHY 289 (1971). 3. Compare Burton, Comment on Empty Ideas. Logical Positivist Analyses of Equality and Rules, 91 YALE L.J. 1136 (1982); Chemerinsky, In Defense of Equality: A Reply to Professor Westen, 81 MICH. L. REv. 575 (1983); D'Amato, Is Equality a Totally Empty Idea?, 81 MICH. L. REv. 600 (1983); Greenawalt, How Empty is the Idea of Equal- ity?, 83 COLUM. L. REV. 1167 (1983) with Westen, The Meaning of Equality in Law, Science, Math and Morals: A Reply, 81 MICH. L. REv. 604 (1983); Westen, To Lure the Tarantula from its Hole: A Response, 83 COLUM. L. REV. 1186 (1983); Westen, On Con- fusing Ideas. Reply, 91 YALE L.J. 1153 (1982). (One of my colleagues related to me the late Alexander Bickel's caustic description of someone who has an instinct for the capil- laries. My avoidance of this important debate may qualify me for that description.) 884

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