Enacting a Constitutional Amendment is difficult. Indeed, it takes a subject of major national preoccupation in order to get any Constitutional Amendment ratified. This makes it difficult for judges to balance the evolving social norms of society with a text that may not reflect the will of the people today. This is especially true with respect to the Equal Protection Clause of the Fourteenth Amendment, which is used for additional classifications today than when it was when enacted. Most methods today do not rely at all on the text of the Constitution to interpret the Fourteenth Amendment, for the simple reason that the Fourteenth Amendment conveys a principle—equal protection—rather than specific instructions on application.
This paper extends Professor Michael Dorf's concept of Equal Protection Incorporation to account for nuances associated with the public’s view on sex discrimination expressed through the discussion of the Equal Rights Amendment.
Available at: http://works.bepress.com/michael_worley/2/