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9 Harv. J. L. & Pub. Pol'y 35 (1986)
Equal Protection Doctrine: Foundations in Mud

handle is hein.journals/hjlpp9 and id is 49 raw text is: EQUAL PROTECTION DOCTRINE: FOUNDATIONS IN MUD WILLIAM KRISTOL* I want to step back briefly from the enormous Byzantine edi- fice of equal protection doctrine that Professor Bator has de- scribed and say a word about the overall character of that edifice. There are two things to be said about it. First, I agree with Professor Bator that it is not a structure of great integrity or coherence. There is an old saying about Keynesian econom- ics that you would have to be an economics professor to believe in the multiplier-that is, to believe that if government spends money it is better for the economy than if individuals or corpo- rations do. It seems to me, with all due respect, that one has to be a law professor to really believe that current equal protec- tion doctrine is an edifice of great integrity and elegance. Sec- ond, apart from its internal incoherence, the edifice is built on sand in the first place-or, to vary the metaphor a little, on a mudslide. The foundations of the Equal Protection Clause sim- ply could not support any complicated edifice, even if that edi- fice were more coherent or had greater integrity. What I have just said is generally true of constitutional inter- pretation today. In a fundamental way, many of our constitu- tional doctrines are not just incoherent but unsustainable. In general, it seems that the courts, the law schools, and perhaps our political system as a whole have broken free of what is thought by some to be an old- fashioned, narrow interpretation of the Equal Protection Clause and other constitutional provi- sions. At one time, this appeared to be an attractive thing to do for the sake of achieving certain desirable ends. It turns out that once you break free, however, there is no logical stopping point. I have heard it said that legal principles or doctrines tend to expand to the limits of their implications. In fact, the courts have not extended recent developments in constitutional law to the limits of their implications. But that has only resulted in a pattern of incoherent stopping points. At some point the court looks and asks itself, Are we really going to do this? At this point, some artificial reason is thought up to distinguish this from what they, or some other court, did yesterday. The result * Assistant Professor of Public Policy, Kennedy School of Government, Harvard University.

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