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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
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.


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