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91 Harv. L. Rev. 1 (1977-1978)
Foreword: Equal Citizenship under the Fourteenth Amendment

handle is hein.journals/hlr91 and id is 20 raw text is: NOVEMBER 1977

1976 TERM
Kenneth L. Karst*
W       HAT   is the substance of substantive equal protection?
The preeminent c6nstitutional development of the past
quarter century has been the enlargement of the guarantee of the
equal protection of the laws.' Yet today hardly anyone has a
kind word for the state of the Supreme Court's equal protection
doctrine. Within the Court the 1976 Term produced new expres-
sions of discontent. Justice Marshall called the Court's analytical
approach to equal protection cases outdated and intellectually
disingenuous. 2 And Justice Rehnquist complained that the
Court's equal protection decisions, once they went beyond the
area of race and national origin, amounted to nothing but an
endless tinkering with legislative judgments, a series of conclu-
sions unsupported by any central guiding principle. I
In any period of constitutional creativity, the construction of
coherent doctrine can be expected to lag behind the Court's inno-
vative decisions. In the case of current equal protection doctrine,
however, the gap between results and articulated theory is un-
usually wide. Responsibility for this gap must be shared by the
* Professor of Law, University of California, Los Angeles. A.B., University of
California, Los Angeles, 195o; LL.B., Harvard, 1953.
My colleagues Howard Horowitz, Gary Schwartz, Murray Schwartz, and
Stephen Yeazell commented on a draft of this Foreword with the kind of care
and sympathy that make membership in our community a joy.
' U.S. CONSr. amend. XIV. Throughout this Foreword, references to the equal
protection clause are intended to include the guarantee of equal protection which
the Supreme Court has found in the due process clause of the fifth amendment as
a limitation on the federal government. See Bolling v. Sharpe, 347 U.S. 497 (1954);
Weinberger .v. Wiesenfeld, 420 U.S. 636, 638 n.2 (i975). The two equal protection
guarantees are for most purposes congruent, as I have shown in my article, The
Fifth Amendment's Guarantee of Equal Protection, 55 N.C.L. REv. 541 (1977).
2 Beal v. DIoe, 97 S. Ct. 2366, 2396 (1977) (Marshall, J., dissenting).
' Trimble v. Gordon, 97 S. Ct. 1459, 1469 (I977) (Rehnquist, J., dissenting).



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