Equal protection scholars have all but abandoned the possibility that a theory of equality might explain Fourteenth Amendment jurisprudence. I develop just such a theory and use it to elucidate the Court’s reasoning in recent affirmative action and voting rights cases. In these cases, the Court has relinquished categorical colorblindness in favor of race-consciousness under limited circumstances. The Court has justified this approach as necessary for protecting the “individual,” although the Court does not precisely explain what it means when it uses that term. I argue that a theory of equality always depends upon a theory of identity and that the “individual" is an example of the latter. The Court uses “individual” to mean a being who experiences civic identity as primary to other identities, such as race, religion, occupation, and so on. “Identity hierarchy” describes this prioritization of civic identity. I rely on liberal political theory to define "identity hierarchy" and "civic identity" and argue that both concepts underwrite the Court's recent affirmative action and voting rights cases. I conclude that the Court’s equal protection jurisprudence would have greater analytic integrity if it were to promote civic identity without reliance upon identity hierarchy.
Equality and Identity HierarchyNew York University Journal of Law & Liberty
Citation InformationNirej S. Sekhon, Equality and Identity Hierarchy, 3 N.Y.U. J.L. & Liberty 349 (2008).