This Article explores such trends in the context of several recent cases and in the broader context of established patterns of constitutional law. Section II shows how the different strains of fourteenth amendment activism over the past century have tangled the strands of the fourteenth amendment in a thick, almost impenetrable knot. Section ill studies the tangle's reflection in three cases raising fundamental rights problems - Maher v. Roe, Moore v. City of East Cleveland, and Zablocki v. Redhail. Finally, Section N offers what Sections II and III suggest is missing from fourteenth amendment case law- a theory, abstract but functional, of the separate strands. It suggests that the only proper sources for judicial discovery of fundamental libertarian values outside the constitutional text and structure are those which demonstrate that the values are "deeply embedded" within American society. Further, Section N contends that the equality strand cannot and should not bear a substantive content - that equal protection, whether viewed in moral terms or process terms, should remain substantially rooted in the pure anti-discrimination concerns that sparked the textual embrace with equality.
Ira C. Lupu,
Untangling the Strands of the Fourteenth Amendment,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol77/iss4/2