St. Mary's Law Journal
Equal protection must prohibit arbitrary governmental classifications or differentiation. The Supreme Court is a unique authority because of its power to create constitutional law and because of its symbolic position in this society as a bearer of the Constitution as aegis. The Fourteenth Amendment, which is derived from the Equal Protection Clause, is one of the most important areas of constitutional law.
Governmental decisionmakers must consider equal protection doctrine since they are frequently required to discriminate among those arguably qualified in order to determine who should bear the burden of governmental action or receive the benefits of governmental largess. A decision to discriminate is often the result of political compromise, limited objectives, limited resources, prejudice, or a blend of these reasons. This failure to treat equally all those who are arguably similarly situated regarding these burdens or benefits prompts challenges in the application of the Equal Protection Clause. The Supreme Court has provided inadequate guidelines for determining such challenges.
The history of equal protection is a history of the constitutional erosion of the government’s power to rule without reason, to treat similarly qualified persons differently because of what officials think of them, to lump people together for group treatment without regard for their individual merit or ability, and to treat people unequally so as to serve the personal interests of the decisionmakers rather than the interests of the public. It must be admitted that, in acting upon its own sense of fairness and equality, the Supreme Court has not developed a formal process of analysis that narrowly channels its discretion. Hopefully, with conscious development, the process will become better defined and standardized, but discretion must be used as long as the Court possesses, at least in part, the power to adjudicate while making constitutional law.
David A. Dittfurth, A Theory of Equal Protection, 14 St. Mary’s L.J. 829 (1983).