This paper states that the degree to which the text and original intent of the framers of the constitution was to protect a class should determine the level of scrutiny that class should receive. The level of scrutiny a class should receive ought to be a function of how often or how broadly the class is protected in the constitution, as understood by the text of the Constitution, its Amendments, and their framers’ intent.
Support for this theory is found in particular in the experience regarding two classes. Age and race discrimination had been embedded in the constitution at the founding. As time has gone on, one of them has proven unwise (race) and has been overturned by constitutional amendment, which confers a broad range of protections. The other remains a viable part of the constitution.
Support for this also comes from sex discrimination. There is only one right that is protected from discrimination based on sex—voting. This limited conferral of rights is correlated with the fact that sex receives intermediate scrutiny, but when a full equal rights amendment is passed (as the case in fourteen states), the scrutiny level applied is typically higher.
This theory demands no changes to the standard for rational basis review. In essence, the present rule still holds—unless a class gets suspect or quasi-suspect classification, it receives rational basis review. This correlates well with the lack of protections for these classes in the intent of the passing of the Constitution and its amendments.
Available at: http://works.bepress.com/michael_worley/1/