In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in thinking about the present condition of equal protection and its relationship to various constitutional Reconstructions—the Second, the First, and, if we are fortunate, the Third—it is worth asking what that way of telling the story leaves out about equal protection since the Second Reconstruction ended. I will mention three such omissions. One of them is about gender, one is about wealth, and one is about race.
Primus, Richard A. "Second Redemption, Third Reconstruction." Cal. L. Rev. 106, no. 6 (2018): 1987-99.
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