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5 Colum. J. Eur. L. 281 (1998-1999)
Equal Protection, General Equality and Economic Discrimination from a U.S. Perspective

handle is hein.journals/coljeul5 and id is 287 raw text is: EQUAL PROTECTION, GENERAL EQUALITY AND ECONOMIC
DISCRIMINATION FROM A U.S. PERSPECTIVE
Gerald L. Neuman*
INTRODUCTION
The evolution of a country's constitutional law reflects both the particular
historical experiences of the country and general trends of intellectual history
shared among countries. The United States inherited its human rights tradition
from Europe. Although much of its development has been self-referential,
implicit reliance on broader intellectual trends and even explicit invocation of
European thinkers and European legal developments have also contributed.
Meanwhile, U.S. constitutionalism has been influential in other countries, and
received special attention-which does not mean unquestioning imitation-in
Germany.'
In the field of constitutional equality, the U.S. practice of regarding equality
before the law as a norm that prohibits arbitrary legislation, and not just as a
guarantee of the equal application of laws by judges and administrators,
influenced debates on the interpretation of the Weimar Constitution,2 and has
become important constitutional doctrine under the post-war German
constitution, or Grundgesetz (GG) of 1949.1 U.S. case law was closely studied in
the 1920's by Professor Gerhard Leibholz, later a Justice of the Federal
Constitutional Court, who approved its focus on objective arbitrariness--the
objective absence of any reasonable justification for unequal treatment.4
U.S. equality law has evolved considerably since the 1920's, partly by
rejecting some of the cases that influenced German constitutional thinking. That
evolution has not yet produced a consistent and stable doctrine, however, and
* Herbert Wechsler Professor of Federal Jurisprudence, Columbia Law School. The author
gratefully acknowledges the generosity of the Robert Bosch Stiftung in funding the symposium at
which this Article was presented.
See, e.g, Helmut Steinberger, Historic Influences of American Constitutionalism Upon German
Constitutional Development: Federalism and Judicial Review, 36 Colum. J. Transnat'l L. 189 (1997).
2 See, e.g., Steinberger, supra, at 205-06 (noting contributions of Heinrich Triepel and Gerhard
Leibholz); Willibalt Apelt, Die Gleichheit vor dem Gesetz nach Art. 3 Abs. 1 des Grundgesetzes, 6
Juristenzeitung 353, 355-56 (1951) (describing Weimar debates).
3 For a general overview as of the late 1980's, see David P. Currie, Lochner Abroad: Substantive
Due Process and Equal Protection in the Federal Republic of Germany, 1989 Sup. Ct. Rev. 333, 363-
71 (1990).
1 See Gerhard Leibholz, Die Gleichheit vor dem Gesetz (2d ed. 1959) (including reprint of 1st ed.
1925); Gerhard Leibholz, Equality as a Principle in German and Swiss Constitutional Law, in
Gerhard Leibholz, Politics and Law 302 (1965).

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